text:
    CONSUELO CASTANEDA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harper-Wyman Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—91—0544WC
    Opinion filed July 13, 1992.
    Kurt A. Neirmann, of Presbrey & Amoni, of Aurora, for appellant.
    Jeremy H. Heiple, of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The claimant, Consuelo Castaneda, was employed by HarperWyman Company (the employer) for about 10 years until she was laid off on June 19, 1987. Subsequently, on September 26, 1988, claimant brought a claim pursuant to section 19(b) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), and after a hearing, the arbitrator found in claimant’s favor. The arbitrator found that claimant suffered an accident arising out of her employment on June 19, 1987, and that she was entitled to temporary total disability benefits, medical expenses and penalties due to the employer’s delay in payment of benefits. The Industrial Commission (Commission) reversed the decision of the arbitrator, finding that claimant’s injury had manifested itself on April 26, 1985, and thus the claim, filed on September 26, 1988, was outside the three-year statute of limitations set forth in section 6 of the Act. The circuit court confirmed the Commission’s decision, and plaintiff has appealed. We affirm.

The record reveals that claimant, 57 years of age, worked for the employer as an assembler, an occupation which required her to work a “lugger” machine. This required her to place parts in the lugger machine and press them down. She then would push buttons, unload the cases, and reload the machine. Finished boxes were removed from the machine, folded, taped and placed on a rack. During the course of an eight-hour day, claimant put out approximately 540 pieces. Prior to working as an assembler, which she did for about a year and one-half before leaving the employer, claimant for five or six years worked at a wiring and soldering position. This position required claimant to twist wires on individual pieces with pliers, place the pieces into a lock and solder them.

Claimant first noticed problems with her hands at the time she was performing wiring and soldering in April of 1985. At this time, she complained of swelling in her wrist and hands, and had difficulty lifting things. On April 26 and May 1, 1985, claimant made two visits to Dr. Subbiah, to whom she was referred by Dr. Interone. Dr. Subbiah ordered tests, and claimant missed some work, but then returned to work.

When claimant saw Dr. Subbiah in April of 1985, her complaints were for numbness and tingling in the hands, with the problem more acute in her right hand. Dr. Subbiah’s notes reflect “[claimant] is relating her symptoms to work.” A neurological examination revealed evidence of a positive Tinel sign bilaterally, which relates to nerve irritation. A nerve conduction study and EMG were done on April 30, 1985, and on May 1, 1985, Dr. Subbiah diagnosed claimant’s problem as “most likely *** a nonspecific arthritic syndrome *** and no evidence of neurologic disease [and] no evidence of entrapment neropathy.”

When claimant returned to work, she continued to have complaints that her hands and wrists were sore and swollen. These complaints persisted up until her last day of work in 1987. After her employment with the employer, she tried to work as a maid, but was unable to do so due to her hands. In August of 1988, claimant’s hands were hurting excessively, so she went for treatment to Dr. Vinje, who then referred her to Dr. Delacruz. On September 8, 1988, Dr. Delacruz issued a neurological report which indicated his impression of right carpal tunnel syndrome.

Claimant went to Dr. Barnes for a second opinion. Barnes first saw claimant on October 13, 1988. Upon this initial examination, Barnes made a preliminary diagnosis of carpal tunnel syndrome bilaterally. Ultimately, surgery was performed upon both of claimant’s hands in June of 1989.

Claimant has been restricted from work by Dr. Barnes since October 13, 1988. The last time she saw Barnes was September 20, 1989. Barnes testified that based on claimant’s history, her condition was causally related to her employment. He stated that she had bilateral carpal tunnel syndrome in April of 1985, but that there was no way of knowing when it first occurred.

Two witnesses from the employer’s personnel department testified that although they were aware of claimant’s hand complaints in 1985, they had no specific knowledge of any June 19, 1987, accident or hand problems claimant experienced at that time until claimant’s workers’ compensation case was underway. Richard Ryba, the employer’s personnel manager, said that claimant did not notify him of any June 1987 complaints concerning her hands, although he was aware that she had experienced problems with her hands in 1985 or 1986. Marlene Tegmeyer, the employer’s director of personnel, said that she had no notice of claimant’s hand problems in June of 1987 until she received the application for adjustment of claim. Tegmeyer related, however, that the employer had paid medical bills for claimant in 1985, relating to problems with claimant’s wrist.

We first address the issue of whether the Commission’s finding that April 26, 1985, was the day of claimant’s injury is against the manifest weight of the evidence.

Simply because claimant’s injury was not sudden does not deprive claimant of the Act’s coverage. As the Illinois Supreme Court stated in Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 529-30, 505 N.E.2d 1026, a case in which the claimant, as here, suffered from carpal tunnel syndrome:

“Requiring complete collapse in a case like the instant one would not be beneficial to the employee or the employer because it might force employees needing the protection of the Act to push their bodies to a precise moment of collapse. Simply because an employee’s work-related injury is gradual, rather than sudden and completely disabling, should not preclude protection and benefits. The Act was intended to compensate workers who have been injured as a result of their employment. To deny an employee benefits for a work-related injury that is not the result of a sudden mishap or completely disabling penalizes an employee who faithfully performs job duties despite bodily discomfort and damage.”

In the case of Three “D” Discount Store v. Industrial Comm’n (1989), 198 Ill. App. 3d 43, 47, 556 N.E.2d 261, the court observed:

“An employee seeking benefits for gradual injury due to repetitive trauma must meet the same standard of proof as a petitioner alleging a single, definable accident. [Citation.] The petitioner must prove a precise, identifiable date when the accidental injury manifested itself. ‘Manifested itself’ means the date on which both the fact of the injury and the causal relationship of the injury to the petitioner’s employment would have become plainly apparent to a reasonable person. [Citation.] The test of when an injury manifests itself is an objective one, determined from the facts and circumstances of each case. [Citation.] A reviewing court may overturn the Commission’s factual determinations only when they are against the manifest weight of the evidence. [Citation.]”

Applying the foregoing to the facts of the case sub judice, we conclude that the Commission’s finding that the date of injury was April 26, 1985, is not against the manifest weight of the evidence. Claimant argues that the true date of injury was June 19, 1987, her last day of employment. In making this argument, claimant emphasizes that the types of jobs claimant performed for the employer were the types of jobs to which repetitive trauma injury would be a common result, and that claimant continued to have complaints after she stopped working for the employer.

Claimant relies heavily upon the case of Oscar Mayer & Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 531 N.E.2d 174. There, in another carpal tunnel syndrome case, the court reinstated an Industrial Commission factual finding that the date the claimant’s injury manifested itself was the claimant’s last day of work. Interestingly, although the claimant in Oscar Mayer clearly knew of his injury well prior to his last date of employment, having been examined and diagnosed by the employer’s physician, the opinion does not relate any affirmative statement or knowledge on the part of the claimant that the injury was caused by his employment. The court held that the Commission’s finding that the claimant’s date of injury was his last day of work (and the day before he underwent surgery for his condition) was not against the manifest weight of the evidence. The court also observed:

“Nothing we say here should be interpreted as establishing an inflexible rule. Just as we reject respondent’s contention the date of discovery of the condition and its relation to the employment necessarily fixes the date of accident, we reject any interpretation of this opinion which would permit the employee to always establish the date of accident in a repetitive-trauma case by reference to the last date of work.” 176 Ill. App. 3d at 612.

In Peoria County Bellwood, the supreme court held: “The claimant *** worked on October 4, 1976, and experienced the symptoms of her injury. On October 5, 1976, she sought medical treatment and was told that her injury was caused by her job-related activities. Therefore, the October 4, 1976, date was the last day the claimant worked before the fact of her injury and its causal connection to her employment became apparent to her.” (Peoria County Bellwood, 115 Ill. 2d at 531.) The supreme court reached this conclusion despite the fact that the claimant continued to work for over 10 months after October 1976. (115 Ill. 2d at 528.) In Three “D, ” this court found that claimant’s injury manifested itself before claimant’s last day of work, which was the date upon which the Commission had fixed claimant’s accidental injury. (Three “D”, 198 Ill. App. 3d at 48.) It is thus clear that a claimant’s last day of exposure to repetitive trauma is not, in and of itself, the day of accident for the purposes of repetitive injury cases.

We note, moreover, that all of the cases discussed above showed deference to the Commission’s determination of the issue. In Peoria County Bellwood, the Commission’s determination was affirmed by both the supreme and appellate courts. In Oscar Mayer, the court reversed the circuit court’s order which had set aside the Commission’s finding. In Three “D, ” while the court found that claimant’s injury manifested itself one month earlier than the Commission had, it nonetheless affirmed the Commission’s award of benefits to the claimant. Here, the claimant asks us to reverse the Commission’s date of injury finding.

We apply the law to the instant case with the proper standard of review in mind, namely, that we may not reverse the Commission’s factual finding that April 26, 1985, was the date the injury manifested itself unless it was against the manifest weight of the evidence. Claimant has related no significance to the last day of work, June 19, 1987, other than its being the last day she worked for the employer. The record reveals that she was “laid off,” as the employer discontinued her position and she could not perform other positions. Claimant did not seek any medical treatment at the time she stopped working. At that time, she was offered a transfer to another position with the employer, but declined, apparently because she was unable to perform the work because of her hand condition. Yet, she did not seek any further medical treatment until well over a year after she no longer worked for the employer.

To the contrary, the record does support the Commission’s determination that April 26, 1985, is the date upon which the accidental injury manifested itself. The purpose of her visit to Dr. Subbiah, to whom she was referred, was her complaints of numbness and tingling in her hands. At this point in time, petitioner herself, according to Dr. Subbiah’s notes, related her hand problems to her employment. Dr. Subbiah found evidence of a positive Tinel sign bilaterally, which according to Dr. Barnes, along with her symptoms, presented “classic” carpal tunnel syndrome at the time. Claimant points out that Dr. Subbiah’s notes also reflect a diagnosis of an arthritic condition at this time, and claimant contends that this supports the conclusion that because of this diagnosis, she was not aware that her injury was work-related. However, claimant points to no testimony or evidence to suggest that she was informed at the time that her injury was not work-related, and, if so, that she changed her mind that her condition was work-related due to her being so informed. Thus, we do not ascribe force to claimant’s contention that although she initially was aware of the relation of her work to her injury, she somehow became unaware of same. For the foregoing reasons, we find that claimant’s contention that June 19, 1987, was the date of accident is not a conclusion clearly apparent. Accordingly, the Commission’s determination of the date of accidental injury in the case sub judice is not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER and H. LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY PRESIDING JUSTICE BARRY,

license: Public Domain

text:
    THE VILLAGE OF BOLINGBROOK, Plaintiff-Appellant, v. CITIZENS UTILITIES COMPANY OF ILLINOIS, Defendant-Appellee.
    Third District
    No. 3—91—0750
    Opinion filed July 24, 1992.
    BARRY, P.J., dissenting.
    Norma J. Guess, Barry L. Moss, and George A. Marchetti, all of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant.

      Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Village of Bolingbrook (Village), filed multiple ordinance violations against Citizens Utilities Company of Illinois (Citizens), alleging the illegal discharge of untreated sewage. The trial court dismissed the complaints when it found the Village’s public health ordinances were preempted by the Illinois Public Utilities Act (Utilities Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 — 101 et seq.). The Village appeals and we affirm.

Citizens is a public utility which provides water and sewer service to the Village. Between April 9 and April 15, 1991, Citizens discharged untreated sewage from its plant onto property located in the Village. The Village, a home rule municipality, filed 22 complaints against Citizens for repeatedly violating ordinance 24 — 200 (“Unlawful Placement of Waste Prohibited”) and 20 complaints for the violation of ordinance 24 — 201 (“Unlawful Discharge into Natural Outlet”).

Citizens moved to dismiss all complaints on the basis that the Utilities Act preempted the Village from enforcing its public health ordinances. The trial court agreed and granted Citizens’ motion to dismiss.

The Village maintains that it is authorized by the General Assembly to prohibit Citizens’ illegal discharge of untreated sewage pursuant to: (1) the Village’s general police powers (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 1—1); (2) the Village’s ability to regulate offensive matter and prevent pollution within the municipality (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 80—10); (3) the Village’s ability to enact ordinances for the promotion of health or the suppression of diseases (Ill. Rev. Stat. 1989, ch. 24, pars. 1 — 2—1, 11 — 20—5); and (4) the Village’s ability to prevent and abate nuisances (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 60— 2)-

The Utilities Act was enacted by the General Assembly and intended to govern the operation of all public utilities within the State of Hlinois. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 — 102.) Section 1 — 102 of the Utilities Act provides in pertinent part:

“Findings and Intent. The General Assembly finds that the health, welfare and prosperity of all Illinois citizens require the provision of adequate, efficient, reliable, environmentally safe and least-cost public utility services at prices which accurately reflect the long-term cost of such services and which are equitable to all citizens. It is therefore declared to be the policy of the State that public utilities shall continue to be regulated effectively and comprehensively.” Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 — 102.

The Illinois Commerce Commission was specifically created by the General Assembly and authorized to supervise and regulate all public utilities within the State of Illinois. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 4 — 101.) According to section 4 — 101 of the Utilities Act:

“The Commission shall have general supervision of all public utilities, *** shall inquire into the management of the business thereof and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine those public utilities and keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service but also with respect to their compliance with this Act and any other law, with the orders of the Commission and with the charter and franchise requirements.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 1112/3, par. 4 — 101.

The term “public utility” encompasses every corporation or business which owns or operates any (utility) plant which provides sewerage disposal. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 3 — 105.) Citizens is a public utility as defined by the statute because it provides sewage disposal and related services to individuals and businesses located in the Village.

A “home rule unit” is a municipality which “may exercise any power or perform any function pertaining to its governmental affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.” (Ill. Const. 1970, art. VII, §6(a).) Home rule municipalities are granted broad and imprecise powers. This requires the courts of our State to determine whether a power exercised by a home rule municipality is within the scope of the powers granted by article VII, section 6(a), of the Illinois Constitution. Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15.

The validity of any municipal ordinance depends upon whether the municipality has been granted the appropriate governmental power by article VII, section 6(a), of the Illinois Constitution of 1970. (Kirwan v. Peoples Gas Light & Coke Co. (1988), 173 Ill. App. 3d 699, 528 N.E.2d 201.) If the General Assembly has not specifically limited or denied a governmental power to a home rule unit, then the courts must determine whether the legislature intended to preempt the area of authority which is the subject of the municipal ordinance. Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Comm’n (1982), 104 Ill. App. 3d 817, 433 N.E.2d 329.

Preemption occurs when the courts determine that the General Assembly has adopted a method of regulation covering the same subject matter that a municipality is also attempting to regulate. Hutchcraft Van Service, Inc., 104 Ill. App. 3d at 823, 433 N.E.2d at 333.

The Illinois General Assembly has not specifically prohibited home rule units of local government from regulating public utilities. (Kirwan, 173 Ill. App. 3d 699, 528 N.E.2d 201.) However, the General Assembly has conferred upon the Illinois Commerce Commission the power and authority to comprehensively regulate all public utilities within this State. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 4 — 101.) When the Utilities Act expressly empowers the Illinois Commerce Commission with a specific regulatory authority, any similar regulatory power vested in a municipality becomes ineffective. City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 39 N.E.2d 26.

In City of Peoria v. Peoria Water Co. (1977), 49 Ill. App. 3d 1066, 364 N.E.2d 1003, the trial court dismissed the City of Peoria’s complaint for specific performance on the ground that the city’s attempt to regulate water main extensions was preempted by the Utilities Act. The City sought to compel the local utility to provide water main extensions pursuant to their existing franchise. Our court upheld the trial court’s dismissal. We found that neither the City’s municipal ordinances nor the parties’ franchise could limit the Illinois Commerce Commission’s authority to regulate the local utility. Therefore, the court found that the City of Peoria could not compel the local utility to provide water main extensions without receiving specific authority to do so from the Illinois Commerce Commission. By our opinion in the instant appeal, we reaffirm the doctrine of preemption as set forth in City of Peoria.

The alleged discharge of untreated sewage by Citizens is a matter of concern not only to the residents of the Village, but also to the people of the State of Illinois. The regulation and general supervision of all public utilities in this State have been solely and specifically vested in the Illinois Commerce Commission by the Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 4 — 101 et seq.). The general regulation of public utilities by the Illinois Commerce Commission has been, since 1913, a matter of statewide, not local, concern. Kirwan, 173 Ill. App. 3d at 705, 528 N.E.2d at 203.

We find from our review of the record that the Utilities Act grants to the Illinois Commerce Commission regulatory control over Citizens’ operation of its sewerage service and preempts such regulation by the Village. However, we note that our holding in no way precludes local Village regulation over public utility matters which do not interfere with or overlap the regulatory authority of the Illinois Commerce Commission. (City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 17 N.E.2d 576.) Our opinion does not preclude municipal regulation of the nonintegral public activities and facilities of a local utility. See City of Chicago v. Alton R.R. Co. (1933), 355 Ill. 65, 188 N.E. 831.

For the reasons indicated, the Illinois Commerce Commission has exclusive regulatory jurisdiction granted by the Utilities Act over the operation of Citizens’ public utility sewage system and service. The trial court acted properly when it dismissed the Village’s ordinance violation complaints against Citizens pursuant to the doctrine of preemption.

Accordingly, the circuit court of Will County is affirmed.

Affirmed.

SLATER, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

Contrary to my colleagues, I find nothing in the Utilities Act expressing a legislative intent to preempt the local ordinances here at issue enacted pursuant to the Village’s police power and in the interest of public health.

Specifically, the ordinances provide:

“Section 24 — 200. Unlawful Placement of Waste Prohibited.
It shall be unlawful for any person to place, deposit, or permit to be deposited in any unsanitary manner on public or private property within the Village, or on any area under the jurisdiction of the Village, any human or animal excrement, garbage or other objectionable waste.
Section 24 — 201. Unlawful Discharge Into Natural Outlet.
It shall be unlawful to discharge to any natural outlet within the Village, or in any area under the jurisdiction of the Village, any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this Chapter.” Village of Bolingbrook, Ill., Public Health Ordinance §§24 — 200, 24 — 201.

In my opinion, these ordinances are entirely compatible with and complementary to the intent of the Utilities Act to grant authority to the Commission to oversee and regulate the day-to-day business operations of public utilities.

Section 1 — 102 of the Utilities Act clearly refers to the regulation of rates charged by public utilities and expresses the intent to comprehensively control those rates. Section 4 — 101, consistent with the stated purpose of the Act, authorizes the Commission to supervise the business of public utilities and to keep informed as to their compliance with other laws. Section 4 — 201 authorizes “the Commission to see that the provisions of the Constitution and statutes of this State affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the State therefor recovered and collected.” (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 201.) Finally, section 4 — 205 provides that “suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution against any public utility.” (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 205.) Read together, these sections of the Utilities Act evince a legislative intent to grant comprehensive regulatory control of the business aspects of public utilities to the Illinois Commerce Commission (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 101) and to retain the right of the State (e.g., the Environmental Protection Agency) and any other body politic, person or corporation to prosecute claims based on criminal and civil liability (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 205). See Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478, 29 N.E.2d 1014, 1017 (“[T]here [is] nothing in the [Utilities Act] giving the Commerce Commission authority to determine liability growing out of a discontinuance of service”).

The proper test for determining whether a matter lies within the exclusive jurisdiction of the Commerce Commission or may be acted upon by a municipality was stated in City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 615, 17 N.E.2d 576, 578. The court there prefaced its analysis with the observation that “repeal [of a municipal ordinance] by implication is not favored, and that it is only where there is a clear repugnance between two acts, and the provisions of both cannot be carried into effect, that the later law [the Utilities Act] must prevail.” At issue in City of Chicago was the validity of a revenue ordinance requiring a wheel tax or licence fee from motor vehicles engaged as a public utility. The court tested the ordinance by the standard set forth in City of Chicago v. Alton R.R. Co. (1933), 355 Ill. 65, 73, 188 N.E. 831, 834: “The line of demarcation *** lies between such matters as are ‘an intimate part of and of the closest connection with the public utility service and transportation itself,’ on the one hand, which are within the exclusive jurisdiction of the Commerce Commission, and on the other hand those matters which in nowise interfere with or overlap such control by the Commerce Commission.” (City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 616.) The court found that inasmuch as the wheel tax ordinance did not involve “regulation of the utility, its instrumentalities or its business,” the ordinance was a valid exercise of the city’s taxing authority. 369 Ill. at 617, 17 N.E.2d at 579.

In similar fashion, by my view, the local ordinances here at issue do not limit or interfere with the Commission’s authority to supervise and regulate the business operations of the public utility. The ordinances are a reasonable exercise of the home rule municipality’s police power for the protection of public health. They do not require the utility to expand its services or meet higher standards than are otherwise required by the Utilities Act or the Commerce Commission. They merely prohibit the unsanitary dumping of animal and human excrement, etc., on public and private property and the discharge of raw sewage into the Village’s natural outlets. I fail to see how these ordinances impede or overlap the Commission’s regulation of the defendant’s services.

Unlike City of Peoria, the ordinances here do not purport to affect the business of the utility by imposing additional services for the benefit of a local entity that may not be required statewide. In City of Peoria the city entered into an agreement with the public utility water company granting the city the power to compel main extensions. On review we found a direct conflict between the Utilities Act’s grant of authority to the Commission respecting utility extensions (Ill. Rev. Stat. 1975, ch. 1112/3, par. 50) and the franchise agreement.

In City of Peoria we cited with approval City of Chicago v. Illinois Commerce Comm’n (1934), 356 111. 501, 510, 190 N.E. 896, 900. That case concerned a city ordinance originally enacted in 1911 which required railroad companies to make certain elevations of their tracks and to construct subways. In 1914, the Utilities Act was enacted, and it granted to the Illinois Commerce Commission exclusive jurisdiction over all phases of grade crossing regulation, including the power to apportion costs and to determine the manner of constructing grade crossings (111. Rev. Stat. 1933, ch. 1112/3, par. 62). The legislature had expressed its specific intent to grant control over the subject matter in question to the Commerce Commission. Thus, the court ruled that, as of the effective date of the Utilities Act, the city lost power to enforce its ordinance: “Neither municipal franchise ordinances which have been accepted and acted upon by grantee utility companies, nor municipal regulatory ordinances passed under legislative authority, can stand in the way of the lawful exercise, by the Commerce Commission, of the regulatory police powers conferred upon it by the General Assembly.” City of Chicago, 356 Ill. at 510.

Here, the majority points to no specific provision in the Utilities Act which grants to the Commerce Commission exclusive jurisdiction to regulate the discharge of raw sewage. In my opinion the Utilities Act does not preempt the ordinances and poses no impediment to the Village’s court action against the public utility defendant.

I would reverse the judgment of the circuit court of Will County and remand this action for further proceedings.


author: JUSTICE McCUSKEY

text:
    PAULA VANCE, f/k/a Paula Chandler, Plaintiff-Appellant, v. MORTON ROSS CHANDLER et al., Defendants-Appellees.
    Third District
    No. 3—91—0769
    Opinion filed July 22, 1992.

      Franklin S. Wallace and David L. Cunningham, both of Winstein, Kavensky & Wallace, of Rock Island, for appellant.
    Duane Thompson, of Braud/Warner, Ltd., of Rock Island, for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Paula Vance, formerly Paula Chandler, appeals the dismissal of her amended complaint. The issues presented are: (1) whether plaintiff stated causes of action for civil conspiracy and intentional infliction of emotional distress, and (2) whether those causes of action were barred by principles of res judicata and collateral estoppel.

We reverse the trial court’s dismissal of plaintiff’s amended complaint and remand because we find the plaintiff has sufficiently stated causes of action for civil conspiracy and intentional infliction of emotional distress. We do not find either cause of action is barred by res judicata or collateral estoppel.

The essence of plaintiff’s action is that she “suffered emotional distress and monetary damages” as a result of defendants’ conspiracy to murder her. The first two counts of plaintiff’s six-count amended complaint sought compensatory and punitive damages for the tort of civil conspiracy from plaintiff’s former husband, Morton Ross Chandler (Morton). In the remaining counts, plaintiff alleged causes of action against her daughter, Heidi Chandler (Heidi), and Morton which sought compensatory and punitive damages for intentional infliction of distress.

Specifically, plaintiff alleged that while she and her husband Morton were involved in divorce proceedings, Morton had twice approached Walter Foster about hiring someone to kill her. Following the second conversation, Foster contacted an individual who supplied the name of a person who would murder the plaintiff. Foster then made the necessary arrangements with that individual to perform the murder of the plaintiff.

The plaintiff alleged in her amended complaint that Heidi “joined in and aided [the] conspiracy by driving *** Foster to various places when he was attempting to and did hire someone to kill the plaintiff.”

Plaintiff said she “went into hiding” on July 28, 1989, when she was advised by law enforcement officials that someone was trying to kill her. Plaintiff alleged that while she was “in hiding,” she was unable to perform her regular duties and activities, and that she became “extremely fearful for her life, safety, health and welfare.” Plaintiff further alleges that even now she remains in fear of being killed.

On August 3, 1989, Morton paid the alleged killer for his services, believing that plaintiff had been murdered. The record shows that the “hired gun” was actually an undercover police officer. Later, Morton and Heidi were arrested, and both pled guilty to conspiracy to commit first degree murder.

Defendants filed motions to dismiss plaintiff’s amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). The trial court granted the motions, finding- that plaintiff had failed to state causes of action for civil conspiracy and intentional infliction of emotional distress.

A civil conspiracy involves two or more persons combining to accomplish either a lawful purpose by unlawful means or an unlawful purpose by lawful means. (Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 235, 560 N.E.2d 324, 329.) The necessary elements of civil conspiracy include: (1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties; and (4) the overt act was done pursuant to and in furtherance of the common scheme. Wolf v. Liberis (1987), 153 Ill. App. 3d 488, 496, 505 N.E.2d 1202, 1208.

We note the defendants concede in their brief that plaintiff’s amended complaint does satisfy the first two elements of a prima facie case of civil conspiracy. However, defendants interpret the remaining elements of civil conspiracy to require allegations of an unlawful, overt act which must itself be independently actionable in tort. We disagree. Quoting American Jurisprudence 2d, this court in Illinois Traffic Court Driver Improvement Educational Foundation v. Peoria Journal Star, Inc. (1986), 144 Ill. App. 3d 555, 562, 494 N.E.2d 939, 944, noted that “ ‘in a civil action based on a conspiracy, no cause of action can exist in the absence of an overt, tortious, or unlawful act committed in furtherance of the conspiracy.’ (16 Am. Jur. 2d, Conspiracy sec. 51.)” (Emphasis added.) The conjunctive “or” in this passage indicates alternatives in a series and not, as defendants argue, cumulative requirements of the tort. Therefore, we hold that an alleged overt or unlawful act need not be tortious or otherwise actionable in tort to support a cause of action for civil conspiracy.

In the instant case, we find the plaintiff’s allegations which describe the conspirators’ actions in soliciting, hiring and paying an individual to murder the plaintiff are acts which clearly qualify as unlaw ful acts. Furthermore, those same acts also qualify as overt acts. An “overt act” is defined as “[a]n outward act done in pursuance and manifestation of an intent or design.” (Black’s Law Dictionary 1104 (6th ed. 1990); see also People v. Mudd (1987), 154 Ill. App. 3d 808, 820, 507 N.E.2d 869, 878 (Lund, J., dissenting).) We find nothing in the definition of “overt act” which requires that the act be tortious, unlawful, or otherwise independently actionable. Therefore, we find the defendants’ argument is misplaced.

Defendants also argue the plaintiff’s alleged injury was caused not by defendants, but by the law enforcement officials who informed her of the threat on her life. We consider this argument also to be misplaced. Defendants’ liability should not turn upon the source of plaintiff’s information. The result should be the same whether the plaintiff is informed of the plot by a third party or whether she herself happens to overhear one of the conspirators. It is the knowledge of the plot, not the source of that information, which provides the causation for plaintiff’s alleged injuries.

We also find plaintiff has alleged sufficient facts to state a cause of action for intentional infliction of emotional distress. The elements of the tort are:

“First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress.” (Emphasis in original.) (McGrath v. Fahey (1988), 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809.)

The court in McGrath emphasized that the question of whether a defendant's conduct is extreme and outrageous must be determined in view of all the facts and circumstances pleaded and proved in a particular case. McGrath, 126 Ill. 2d at 90, 533 N.E.2d at 811.

Clearly, we find the alleged conduct of the defendants is sufficiently outrageous in character and extreme in degree to satisfy the first element of the tort of intentional infliction of emotional distress. We note the defendants do not argue this point. Defendants do argue, however, that the plaintiff has failed to allege any facts establishing either: (1) the defendants intended to cause plaintiff’s emotional distress, or (2) that defendants recklessly disregarded the risk of causing plaintiff’s emotional distress. Defendants maintain they were not involved in a conspiracy to cause plaintiff emotional distress, but merely in a conspiracy to cause her death. Defendants further argue they neither intended to, nor in fact did, convey their murderous intent to plaintiff. Defendants argue that the plaintiff’s complaint alleges it was the law enforcement authorities, not the defendants, who advised plaintiff of the plot to kill her. We cannot agree with defendants’ analysis.

We accept plaintiff’s argument that the defendants’ reckless disregard for the possibility that the plaintiff would learn of the plan establishes the second element of the tort for intentional infliction of emotional distress. Liability for emotional distress “applies also where [the defendant] acts recklessly, *** in deliberate disregard of a high degree of probability that the emotional distress will follow.” (Restatement (Second) of Torts §46, Comment i, at 77 (1965).) The defendants’ numerous dealings with third parties clearly enhanced the risk that word of the conspiracy would fall into the “wrong” hands and ultimately cause the plaintiff to learn of the plot. With each additional person brought into the conspiracy and informed of the conspiracy, the defendants ran the risk that someone would either inadvertently expose the plan or, as it turns out, inform the police.

As for the final element of the tort for intentional infliction of emotional distress, we find the plaintiff has pleaded facts sufficient to demonstrate that she suffered severe emotional distress as a result of defendants’ conduct. According to her amended complaint, plaintiff became “extremely fearful for her life, safety, health and welfare” and that she suffered “great emotional distress.” Although plaintiff’s allegations of her emotional distress are not extensive, they are sufficient to establish, at the pleading stage, that her emotional distress was indeed severe.

The trial court found that the allegations directed against Morton in plaintiff’s amended complaint had been previously considered by the judge in the divorce proceeding which involved Morton and the plaintiff. Therefore, we find the trial court’s dismissal was based upon res judicata. The plaintiff argues the trial court’s dismissal order was in error. We agree.

The doctrine of res judicata holds that a final judgment rendered by a court of competent jurisdiction on the merits of a cause of action is conclusive as to the rights of the parties involved. The judgment as to the parties and their privies is an absolute bar to a subsequent action involving the same claim, demand or cause of action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961-62.) The essential elements of res judicata are (1) an identity of the same parties or their privies in the two suits; (2) an identity of the same causes of action in the earlier and the later suit; and (3) a final judgment on the merits in the earlier suit. Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 650, 545 N.E.2d 481, 489.

We find the plaintiffs causes of action against Morton were not barred by the Chandler divorce proceeding. Although the parties are identical, there is not a sufficient identity between the causes of action. In addition, we find the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.) does not authorize a trial court in a dissolution proceeding to determine the issues now raised in plaintiff’s lawsuit. (In re Marriage of Foran (1992), 225 Ill. App. 3d 756, 758-59, 587 N.E.2d 570, 572.) The plaintiff in Foran had filed a petition for relief from a judgment entered in a divorce proceeding. The plaintiff alleged that his former spouse had transmitted a sexual disease to him and had concealed the fact from him. The appellate court affirmed the trial court’s dismissal of the petition, holding that the trial court was not authorized to conduct a separate trial within the dissolution proceeding. The Foran court held that the trial court’s limited statutory jurisdiction in a divorce proceeding did not confer upon the court the power to decide the tort issue raised in the petition or to determine the amount of any damages owed the plaintiff by his former spouse. (Foran, 225 Ill. App. 3d at 758-59, 587 N.E.2d at 572.) The court further stated that “the proper method of obtaining *** relief would be a personal injury action against [his former spouse].” (Foran, 225 Ill. App. 3d at 759, 587 N.E.2d at 572.) In the instant case, plaintiff has indeed followed the Foran court’s recommendation of pursuing her action for damages in tort outside the dissolution proceeding. We do not find the plaintiff’s tort action foreclosed.

The related but narrower theory of collateral estoppel applies when a party participates in two separate cases arising from different causes of action, and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit. (Housing Authority, 101 Ill. 2d at 252, 461 N.E.2d at 962.) The judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined. (Housing Authority, 101 Ill. 2d at 252, 461 N.E.2d at 962.) While the facts underlying the instant tort issues were apparently raised in the dissolution proceedings between plaintiff and Morton, we find from the record that those issues were neither litigated nor determined in the divorce proceeding. Accordingly, we find plaintiff’s amended complaint is not barred by collateral estoppel.

The order of the trial court dismissing plaintiff’s amended complaint is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRISIO VILLANUEVA, Defendant-Appellant.
    Fourth District
    No. 4—91—0833
    Opinion filed June 29, 1992.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court;

In September 1991, a jury convicted defendant, Patrisio Villanueva, of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)). At defendant’s November 1991 sentencing hearing, the trial court found him to be a Class X offender under section 5 — 5—3(cX8) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(cX8)) and sentenced him to 20 years in prison. The trial court also ordered defendant to pay $350 in restitution. Defendant appeals, arguing that (1) the State did not prove him guilty beyond a reasonable doubt, (2) the trial court improperly sentenced him as a Class X offender, and (3) the trial court abused its discretion in ordering him to pay restitution. We affirm.

I. Facts

On May 22, 1991, Urbana police officer Troy Ray Phillips was in uniform on routine patrol in a marked squad car when, a few minutes before 10 p.m., he heard a radio dispatch sending two other Urbana police officers to 1201 East University Avenue in Urbana in response to a silent alarm alert. The business located at that address is Tire Central. Phillips proceeded to that location as well and, shortly after arriving, observed three white males running westbound on the railroad tracks approximately 75 yards away from him. He radioed what he had seen and, along with Urbana police sergeant Michael Metzler, who had joined Phillips, began to pursue the suspects. Phillips testified that during the course of his chase, he yelled, “stop, police!” several times.

Phillips observed that the suspect nearest to him wore blue jeans and a gray jacket, and the other suspects wore blue jeans and T-shirts. The chase led Phillips into the backyards of residences located near the railroad tracks. As he searched a weeded area between the yards and the tracks, Phillips found defendant hiding in the weeds. Defendant was wearing a Chicago Cubs T-shirt and blue jeans. Defendant was sweating profusely and had many green weeds and briars on his jeans. Phillips later found the other two suspects as well. He found the first, Darin Flanery, approximately three to six feet directly east of defendant. He found the third, Thomas Kenny, 20 to 30 feet east of Flanery. Kenny was wearing a gray jacket and jeans. Flanery and Kenny were also sweating profusely and also had many briars on their jeans and shoes. Phillips obtained the suspects’ shoes and clothing and later sent them to the State crime lab for analysis.

Urbana police officer Patrick Connolly testified that the Tire Central facility includes a large, one-story warehouse, an adjacent building attached to the westernmost side of the warehouse, and a chain link fence around the premises. The warehouse has two overhead doors on the south side and one overhead door on the north side. The building also has a silent alarm that signals any motion detected within the building or when anyone tries to enter the building. The alarm system automatically notifies the alarm company by telephone, and the company in turn contacts the police.

On the late morning of May 23, 1991, Connolly, Phillips, and Urbana police sergeant Michael Miller returned to Tire Central and retraced the route that Phillips and Metzler took in their foot pursuit of the suspects arrested the previous evening. As they did so, Connolly discovered a pair of red bolt cutters and a large pipe wrench. Connolly described the bolt cutters as “used to cut metal, primarily fence.” Connolly also found two pairs of brown cloth gloves approximately 20 feet south of where he found the pipe wrench and the bolt cutters. A short distance away, he found a similar glove in the backyard of a residence along the path that the three suspects had run.

James Demetral, a rental manager for a U-Haul trailer rental in Hickory Hills, Illinois, testified that on May 21, 1991, at approximately 5:30 p.m., defendant, with two other men, rented a 14-foot U-Haul truck from him. Defendant paid a cash deposit for the rental, said that he was going to use the truck “locally in the Burbank area,” and would return it the next day. On the afternoon of May 23, 1991, Connolly went to the Charter House Inn, a motel located approximately one-half to three-fourths of a mile west of Tire Central to investigate a report that a U-Haul truck had been abandoned in the motel’s parking lot. The U-Haul truck Connolly found abandoned in the motel parking lot was the truck defendant had rented the day before.

Sergeant Miller testified that on May 22, 1991, at 9:57 p.m., he received a report of an alarm condition on the silent burglar alarm at Tire Central. He proceeded to that location. When he arrived, he noticed that the west side bay door was halfway up and tires were stacked both in the entrance and lying just outside the door. He radioed that he believed a burglary was in progress, called for assistance, and then walked toward the railroad tracks that ran nearby. He saw three persons running southwest across the railroad tracks. Miller radioed his observations but did not chase the people. He watched them continue to jog and then slow into a brisk walk. Miller followed them at a distance and noticed that they kept looking over their shoulders. As the suspects reached an intersection, a civilian vehicle (unrelated to the police investigation) turned the comer, and all three suspects “bolted and took off running westward.” At that point, Miller lost sight of them. A short time later, Miller went to the location where Phillips had arrested three individuals in a grassy area near the railroad tracks. Miller identified defendant and his codefendants as the three individuals he had been watching. Miller did not believe that the suspects saw him as he first trailed them down the railroad tracks.

Kurt Steger, the manager of Tire Central, testified that at any given time, he probably had $450,000 worth of tire inventory, consisting of thousands of tires. Steger testified that the building had a dock area for trucks that was four to five feet high, and a chain link fence at the rear portion of the building, which faced to the west.

On May 22, 1991, Steger closed the business at 5:30 p.m. and left the premises about 8:30 to 9 p.m. At that time, the overhead doors were closed and locked with a padlock. When Steger left, the warehouse was neat, no tires were stacked next to the overhead doors, nor were any in the grassy area outside of the warehouse.

Sometime after 10 p.m. on May 22, 1991, Steger’s security system summoned him back to the business. When he arrived, he saw police officers present and an overhead door halfway up and some tires lying outside the door. He also noticed stacks of tires had been tipped over inside the warehouse and that the chain link fence had been cut in two places. The padlock that had been on the overhead door was gone and Steger has never found it. Steger estimated that about 30 to 40 tires were stacked up near the door area. He estimated the weight of those tires as 10 to 15 pounds each. Steger was shown a photograph of the U-Haul truck that defendant had rented and estimated that 250 to 300 tires could fit within that truck.

Illinois State Police trooper Jerry Pea, a trained crime scene technician, testified that on May 22 at about 11:55 p.m., he processed the crime scene at Tire Central in Urbana. After speaking to some Urbana police officers, Pea noticed some footwear impressions in the dust within the Tire Central warehouse. He used a “gel lifter” on one of the impressions and made a gelatin lift of the footwear impression that he observed in the dust.

Thomas Gamboe, a forensic scientist employed at a State crime lab, testified that he examined the gelatin lift that Pea made and compared it with the shoe taken from Darin Flanery. Gamboe opined that Flanery’s shoe made the footwear impression on the gelatin lift.

Defendant offered no evidence, and the jury convicted him of burglary.

II. Sufficiency Of The Evidence

Defendant first argues that although the State’s evidence shows he was present near the Tire Central building, it failed to prove beyond a reasonable doubt either that he entered the building or that he was legally accountable for someone else who burglarized that building. Defendant concedes that forensic evidence established that his co-defendant Flanery’s shoe made the footprint discovered in the warehouse but maintains that no evidence shows that he aided Flanery in planning or committing the warehouse burglary.

In response, the State maintains that the evidence proving defendant’s guilt of burglary based upon accountability shows the following: (1) the day before the Tire Central burglary, defendant rented a U-Haul truck in a Chicago suburb and told the rental clerk that he was going to use the truck locally and would return it the next day; (2) two other men — presumably Flanery and Kenny — accompanied defendant when he rented the truck; (3) Tire Central had been burglarized, and numerous tires, weighing 10 to 15 pounds each, had been stacked near the doors, requiring a truck to transport the intended loot; (4) after Tire Central had been broken into and the tires stacked, the police saw defendant and his accomplices walking along a route that would take them from the burglarized warehouse to the U-Haul truck parked only one-half to three-fourths of a mile from Tire Central; (5) because defendant and his accomplices were initially unaware that their presence in the warehouse had been detected, they were proceeding with their original plan of walking back to where they had parked the U-Haul truck, intending to drive it back to the burglarized warehouse so that they could load it with stolen tires; (6) the burglary tools and gloves found along the path that defendant and his accomplices took as they fled near the railroad tracks, as well as the short period of time that passed from the time the manager of that warehouse left until the silent alarm signaled the Tire Central break-in, demonstrates that either defendant or his accomplices cut the chain link fence and burglarized the warehouse; (7) the gelatin lift of Flanery’s shoeprint taken from the warehouse floor proves that at least Flanery went inside the warehouse; and (8) at the time of defendant’s capture, he and his accomplices were all found in the same area, out of breath from running, and each had his clothing covered with green stains, weeds, and briars.

Both the prosecutor and defense counsel argued to the jury about the State’s claim of defendant’s legal accountability for the burglary, and the jury concluded that the State had proved defendant guilty as charged beyond a reasonable doubt. Based upon our review of this record, we are satisfied that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the State proved beyond a reasonable doubt that defendant committed the crime of burglary. See People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277; People v. Kunze (1990), 193 Ill. App. 3d 708, 720, 550 N.E.2d 284, 292.

III. The Order Of Restitution

Defendant next argues that the trial court improperly ordered him to pay $350 in restitution because he had been sentenced to 20 years in prison, was unemployed, indigent, and had no assets. Defendant maintains that an order of restitution under these circumstances amounts to an abuse of the trial court’s discretion. We emphatically disagree.

After defendant’s initial arrest in May 1991, he posted a $7,500 cash bond in July 1991 to secure his release from custody. In August 1991, he was arrested again based upon the State’s petition that alleged defendant had committed another criminal offense. He was then held in custody until the trial court sentenced him on November 1, 1991.

In September 1991, immediately after the jury returned its verdict finding defendant guilty of burglary, the trial court vacated the previous $200,000 bail it had set when defendant was arrested the second time (which defendant had not been able to post), and in part granted defendant’s motion, releasing $6,000 to defendant of the $7,500 he had previously posted.

In support of defendant’s motion to release the cash bond previously posted, defendant’s counsel stated that the money had been posted by family members and a friend, and that some of the money had been borrowed. He also stated the following: “[T]hey are anxious to get the money back and they are just putting pressure on me to take some action to try to get it back to them. After somebody *** has been found guilty, they become very suspicious of what happened to the bond money and how the attorney fits in.”

The State objected to defendant’s request to release the cash bond, pointing out that the court could take court costs from it “and perhaps [the court] may order restitution from the bond posted.” The court asked the prosecutor what the restitution might be, and she responded as follows: “I don’t know. I am not going to stand here and suggest that. I am not sure what it would be. I don’t think it would be more than $200, but I don’t know that.” The court then directed that $6,000 of the $7,500 previously posted be returned to defendant and ordered that he be held without bond pending sentencing. The court retained $1,500, explaining, “That should cover the court costs and restitution from what people have told me.”

The initial presentence report prepared for defendant’s sentencing hearing indicated that total damage to the Tire Central building was $486 and that the business had an insurance deductible of $250. A later addendum to the presentence report stated that it would cost Tire Central $1,140 to restore the fencing, barbed wire, overhead doors, paneling, and door tracks. A written estimate from a person contracted by Tire Central to do the work accompanied the addendum. The addendum also contained a statement from Steger that he would prefer to have the defendant pay for all the damage because Steger feared that his insurance company would raise his insurance premiums if Steger turned in this claim to that company.

The presentence report also indicated that court costs would be $80. Section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7(f)) requires that 10%— in this case $750 — of the cash bond posted be retained by the Champaign County circuit clerk as the circuit clerk’s bond fee. As a result, in order to pay court costs and the circuit clerk’s bond fee, $830 had to be deducted from the $1,500 the trial court ordered retained to be used for restitution. However, the trial court ordered that only $350 of the $670 that was available for restitution be so used. The remaining $320 that was not used for restitution was simply returned to defendant.

In People v. Nasser (1991), 223 Ill. App. 3d 400, 410, 584 N.E.2d 1010, 1016, this court reaffirmed its earlier holding in People v. Strebin (1991), 209 Ill. App. 3d 1078, 1084, 568 N.E.2d 420, 424, that the Illinois General Assembly intended, in every criminal case where possible, to achieve two goals: “(1) to make victims whole for any injury received at the hands of the convicted criminal; and (2) to make criminals pay all of the costs which arise as a result of injuries the victim suffered.” (Emphasis in original.) We also wrote the following:

“[W]e believe trial courts have a duty, to the extent possible, to order restitution to benefit victims so that they can avoid the bother, expense, and delay too often present in the civil justice system. This duty is mandated by the legislative intent underlying section 5 — 5—6 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6). The focus of concern for the courts ought to be that victims of crime, who have been forced to endure the suffering, inconvenience, and hardship frequently associated with that status, receive remuneration for the damages they have suffered. (See Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board (1991), 502 U.S. _, _, 116 L. Ed. 2d 476, 488-89, 112 S. Ct. 501, 509 (‘There can be little doubt *** that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them’).) Courts should be more concerned with the need to make whole the victims of crime rather than with the civil interests of convicted criminals.” (Nasser, 223 Ill. App. 3d at 411, 584 N.E.2d at 1017.)

We also add that trial courts should concern themselves more with using cash bonds posted by defendants or their surrogates to pay restitution than with any interests of defendant or those surrogates regarding the cash posted. After all, we note that in the very case before us, there appears on defendant’s bail bond form a notice entitled, “NOTICE TO PERSON POSTING BAIL BOND,” that reads, in pertinent part, as follows:

“Any sum deposited as money bond *** may be used in the court’s discretion for the payment of *** restitution ***. Therefore, money posted by the defendant or by someone else on his/her behalf may, or may not, be returned at the conclusion of the case.” (Emphasis added.)

Immediately under the above notice, the person who posted the $7,500 cash bond in the present case signed a certificate acknowledging that he had read the notice.

On this record, we reject defendant’s claim that the trial court erred in requiring that he pay $350 in restitution from the cash bond previously posted. In so holding, we note that the trial court could have ordered defendant to pay the entire $670 that was available for restitution. The court did not need to take action on September 11, 1991, to partially grant defendant’s motion to have the $7,500 cash bond returned to defendant, when the court at the same time set his sentencing on November 1, 1991. Instead, the court would have been fully justified to wait until defendant’s sentencing hearing to rule upon his motion to release the $7,500 cash bond. Had the court so waited, it could have ordered defendant to pay all of the $1,140 in restitution that Tire Central needed to be made whole as a result of defendant’s crimes.

It should go without saying that the concerns defendant’s counsel expressed — about possibly offending the sensibilities of defendant’s surrogates who posted the cash bond for him if the $7,500 cash bond were not released — should not have long troubled or concerned the trial court. Those surrogates were not drafted into that role; they elected to put up their cash in defendant’s name to secure his release, and they were warned in advance of the possible consequences of their doing so. As opposed to the persons who posted defendant’s bond, we emphasize that Tire Central was not a volunteer.

This record presents an additional reason why the trial court might want to retain all of the $7,500 cash bond that defendant had posted until the time of defendant’s sentencing on November 1, 1991. We note that immediately after the court sentenced defendant, it granted his request to appoint the office of the State Appellate Defender as his counsel on appeal. Section 113 — 3.1 of the Code (111. Rev. Stat. 1989, ch. 38, par. 113 — 3.1) provides that the court may use cash bonds defendants have posted to pay for the services of court-appointed counsel. Section 113 — 3.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(b)) authorizes the court to assess up to $2,500 for court-appointed counsel on appeal, and section 113 — 3.1(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(e)) explicitly mentions appointments of the State Appellate Defender as a basis for ordering defendants to pay for that office’s appellate services. Had the trial court not released $6,000 of the defendant’s cash bond prior to November 1, 1991, it could have held up to $2,500 from that bond to meet the costs of counsel that the court had just appointed on that date to handle defendant’s appeal. The record before us suggests no reason why such an order would not have been an entirely appropriate exercise of the trial court’s discretion, thereby correctly placing the taxpayers of the State of Illinois, who fund the office of the State Appellate Defender, in a position superior to that of defendant’s surrogates, who elected to post his cash bond.

IV. Defendant’s Sentencing As A Class X Offender

The trial court found that defendant had prior convictions of burglary and residential burglary and thus was eligible to be sentenced as a Class X offender under section 5 — 5—3(cX8) of the Unified Code. Defendant argues that the trial court erred in sentencing him as a Class X offender under that section because the record is devoid of any evidence regarding the dates upon which he committed the burglary and the residential burglary which provided the basis of the court’s treating him as a Class X offender. We disagree.

In People v. Williams (1992), 149 Ill. 2d 467, the Illinois Supreme Court addressed this identical argument and rejected it. In Williams, as in the present case, the trial court received documents at the sentencing hearing that listed the two prior felonies of the defendant but did not provide the dates on which those felonies had been committed. (Williams, 149 Ill. 2d at 473.) The supreme court rejected the argument that the State had a burden of proof regarding the Class X provisions of section 5 — 5—3(cX8) of the Unified Code (Williams, 149 Ill. 2d at 491) and then wrote the following:

“Essentially, defendants contend that the presentence reports were deficient for the purpose of imposing a Class X sentence because the commission dates of their prior felonies were not listed in the report. Any claimed deficiency or inaccuracy within a presentence report must first be brought to the attention of the sentencing court, and a failure to do so results in waiver of the issue on review. [Citations.] Every defendant in the cases before us neglected to notify the sentencing court that he believed the presentence report was deficient because the report failed to include the dates upon which the felonies were committed.
* * *
*** [Defendants’] failure to object to the sufficiency of the reports at the sentencing hearing results in waiver of the issue on review. No purpose would be served by giving the parties notice of the presentence reports at least three days prior to the imposition of sentence (Ill. Rev. Stat. 1987, ch. 38, par. 1005—3—4(bX2)) if we were to permit them to later raise objections to the presentence reports for the first time on appeal.” (Williams, 149 Ill. 2d at 493-95.)

Similarly, in the present case, defendant failed to object or raise any question when the trial court stated that it had to treat defendant as a Class X offender, as the State had argued. Based upon Williams, we reject defendant’s argument that the trial court erred by sentencing him as a Class X offender.

V. Conclusion

For the reasons stated, we affirm defendant’s conviction and sentence.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    TROY PARHAM, Petitioner, v. MACOMB UNIT SCHOOL DISTRICT No. 185 et al., Respondents.
    Fourth District
    No. 4—91—0484
    Opinion filed June 29,1992.

      Allen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.

      Brian A. Braun and Megan Paisley, both of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for other respondent.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner’s racial discrimination charges, filed with the Illinois Department of Human Rights (Department), were dismissed after investigation based on a lack of substantial evidence supporting the charges. (In re Parham, HRC No. 1986—CF—3524 (dismissal by Department, Aug. 21, 1990).) Petitioner requested review by the Human Rights Commission (Commission), which affirmed the dismissal. (In re Parham (Feb. 22, 1991), _Ill. Hum. Rights Comm’n Rep. _(HRC No. 1986 — CF—3524).) A subsequent petition for rehearing before the entire Commission was denied. Petitioner then filed a petition for review of the Commission’s order pursuant to section 8 — 111 of the Hlinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111) alleging (1) the Department failed to conduct a “full investigation”; (2) the Commission erred in finding the facts failed to support a prima facie case of race discrimination; and (3) a public employer violates the Act by dismissing an employee to satisfy the racially discriminatory demands of a community group. The Commission challenges this court’s subject-matter jurisdiction, citing petitioner’s failure to name the Commission and the Department as respondents within 35 days of the Commission’s final order. See 134 Ill. 2d R. 335.

Petitioner Troy Parham was employed by respondent Macomb Unit School District No. 185 (Macomb) as a physical education teacher and as boys’ varsity basketball coach beginning in the 1983-84 school year. He was released from his coaching duties on April 14, 1986, by the board of education of Macomb although he continued to be employed as a physical education teacher and was the only black faculty member of Macomb. The superintendent of Macomb listed three reasons in support of petitioner’s dismissal: (1) failure to foster community satisfaction and support for the basketball program through effective community relations, (2) use of curses and other inappropriate and unsuitable language in the presence of students and fans, and (3) failure to provide guidance and establish relationships with members of his athletic teams.

Petitioner filed charges with the Department alleging (1) he was subjected to unequal conditions of employment and (2) his discharge was based on his race. The Department began an investigation of those charges in 1986 which did not conclude until August 21,1990.

During the course of the investigation, the Department interviewed 10 witnesses, held an informal fact-finding conference attended by petitioner and Macomb, and filed a 17-page report, plus exhibits, summarizing the positions of Macomb and petitioner. The Department concluded there was a lack of substantial evidence that petitioner’s dismissal was related to his race and a lack of substantial evidence that petitioner had been subjected to unequal terms and conditions of employment. The Department issued a notice of dismissal of the charges on August 21,1990.

Pursuant to petitioner’s request for review, and upon review of the Department’s investigation report, the Commission affirmed the Department’s dismissal, noting:

“Complainant’s allegations and facts do not support a prima facie case of race discrimination. The Complainant has failed to provide the Department with the necessary corroborating evidence or testimony to substantial [sic] his claim of unequal terms and conditions of employment, and discharge, based on race.” In re Parham (Feb. 22, 1990), _ Ill. Hum. Rights Comm’n Rep. at_(HRC No. 1986-CF-3524).

The Commission denied petitioner’s petition for a rehearing and petitioner filed a petition for appellate review in this court, naming only Macomb as respondent. The Commission then filed a motion to dismiss for lack of jurisdiction pursuant to Supreme Court Rule 335. (134 Ill. 2d R. 335.) Petitioner filed objections to the motion as well as a motion for leave to amend to include the Department and the Commission as respondents. This court allowed the motion to amend the petition for review.

We address first the Commission’s claim that failure to name the administrative agency as respondent in the petition for review is a jurisdictional defect barring review in this court. Section 8 — 111(A)(1) of the Act provides for direct appellate review of final orders of the Commission by the filing of a petition for review within 35 days of the Commission’s order in accordance with Supreme Court Rule 335. (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111(AX1).) Rule 335(a) provides “[t]he agency and all other parties of record shall be named respondents.” (134 Ill. 2d R. 335(a).) Petitioner’s original petition for review was not in compliance with Ride 335(a) for failure to name the Commission and the Department as respondents.

Based on analogy to cases interpreting sections 3 — 107 and 3 — 102 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 107, 3 — 102), the Commission contends failure to comply with the exact requirements of Supreme Court Rule 335(a) bars review in this court. (See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266; Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893; Cuny v. Annunzio (1952), 411 Ill. 613, 104 N.E.2d 780 (interpreting the Administrative Review Act (see Ill. Rev. Stat. 1945, ch. 110, pars. 264 through 279), the predecessor to the Administrative Review Law); Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864.) In Lockett, the court found the language of sections 3 — 107 and 3 — 102 of the Administrative Review Law to be clear and unambiguous in mandating all parties of record be named as defendants in an administrative review action, that administrative review law procedures must be strictly followed and the requirement of naming necessary party defendants was a mandatory jurisdictional prerequisite and could not be modified. Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.

Section 3 — 107 of the Administrative Review Law provides: “In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107.) Section 3 — 102 of the Administrative Review Law provides: “Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 102; see also Lockett, 133 Ill. 2d at 353, 549 N.E.2d at 1267.) The Commission concludes that based on the substantial similarity of language between Supreme Court Rule 335(a) and section 3 — 107 of the Administrative Review Law, Lockett controls on the question of subject-matter jurisdiction under Supreme Court Rule 335 and petitioner is barred from seeking direct appellate review for failure to name the Department and the Commission within 35 days of the Commission’s order.

In construing provisions of Rule 335, the supreme court has determined the express incorporation of only sections 3 — 101, 3 — 108(c), 3— 109, 3 — 110, and 3 — 111 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, pars. 3-101, 3-108(c), 3-109, 3-110, 3-111) excludes applicability of other provisions of that act. (County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board (1991), 144 Ill. 2d 326, 336, 579 N.E.2d 866, 871.) Therefore, the omission of sections 3 — 107 and 3 — 102 of the Administrative Review Law from the purview of Rule 335 precludes an application of the decisional analysis in Lockett to proceedings governed by provisions of Rule 335 on the facts of this case. Moreover, section 3 — 102 of the Administrative Review Law is specific in barring judicial review except as provided therein. Rule 335, by contrast, contains no such specific bar and this court declines to give it such a construction on the facts of this case.

Here, we need not reach the question of whether failure to name the agency in the petition for review is a jurisdictional defect barring review pursuant to Rule 335(a). Supreme Court Rule 335(h)(l) (134 Ill. 2d R. 335(h)(l)) expressly incorporates other provisions of the rules, including Rule 303 (134 Ill. 2d R. 303), allowing for discretionary amendment of the notice of appeal on motion “filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal” (134 Ill. 2d R. 303(e)). (See Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178; Getty Synthetic Fuels, Inc. v. Pollution Control Board (1982), 104 Ill. App. 3d 285, 288-89, 432 N.E.2d 942, 945.) The petition for review serves the function of the notice of appeal. See 134 Ill. 2d R. 335, Committee Comments, at 293.

The Commission’s final order was rendered June 3, 1991. Petitioner filed the petition for review with this court on July 3, 1991, within 35 days of the final order as required by section 8 — 111 of the Act. Thereafter, petitioner filed a motion in this court on August 6, 1991, to amend the petition for review by naming the Department and the Commission as party respondents, within 30 days after expiration of the time for filing the petition for review. This court allowed that amendment on August 12, 1991; therefore, any failure to comply with the jurisdictional requirements of Rule 335(a) was cured and the appeal is properly before this court.

On the merits, petitioner argues the Department failed to conduct a “full investigation of the allegations set forth in the charge.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(CX1).) In assessing this allegation, it may be useful to review the procedures governing the processing of claims under the Act, which are divided into two phases. The first phase involves the Department’s investigation of the facts and allegations surrounding the filed charges including the interview of witnesses and examination of records or documents. (Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102.) An investigator for the Department conducts an informal fact-finding conference to be attended by claimant and respondent. (Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(CX4).) A party may also supplement the record at any time while the investigation of the charge is pending. (Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(B).) At the conclusion of the investigation, the investigator prepares a written report summarizing the facts disclosed. If it is found after review of the investigative report that substantial evidence of a violation is lacking, the Department will dismiss the charge and notify the claimant that he may request review by the Commission. Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102(DX2Xa).

During the second phase of proceedings under the Act, the Commission reviews the Department’s decision to dismiss the charges. Claimants are given another chance to submit additional supporting evidence and argument as a supplement to the request for review. (See Ill. Rev. Stat. 1989, ch. 68, par. 8 — 103(B).) At its discretion, the Commission may conduct a hearing on the factual basis for the dismissal. (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 103(B).) If the Commission sustains the Department’s action dismissing the charge, its decision is subject to judicial review in the appellate court. Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111(A).

In this case, the Department conducted an informal conference with petitioner and members of Macomb, interviewed 10 witnesses, and prepared a 17-page report appending 112 pages of exhibits. On the basis of the investigation, the Department concluded there was a lack of substantial evidence of either unequal treatment or dismissal based on race discrimination. Nevertheless, petitioner points to the following omissions, which he characterizes as investigative deficiencies: (1) no contact had been made with a student manager who overheard unnamed team members indicate a racial motivation for petitioner’s dismissal; (2) petitioner’s coaching performance was evaluated by Macomb (and his signature appeared on the evaluation form) while some white coaches were not evaluated; (3) even though Macomb produced written evaluations for 10 different coaches for the period 1983-86, including four whom petitioner had named as receiving no evaluations, the Department failed to interview those coaches to determine why their signatures did not appear on the evaluation forms; (4) of the 24 separate parents who signed a list criticizing petitioner’s coaching performance some (who are unidentified) were unaware the list was appended to a letter demanding petitioner’s dismissal and these parents were not interviewed; (5) two students told the Department they felt race may have played a role in petitioner’s dismissal and these statements were not investigated more fully (in fact, when questioned by the Department as to the basis of their statements neither student could provide any explanation or examples in support of his beliefs); (6) while petitioner admitted using inappropriate language, he asserted that all coaches did so and the Department failed to investigate two white coaches who used profanity and were not disciplined (in fact Macomb stated it was unaware of any use of profanity by other coaches as it had received no complaints naming other coaches); (7) a white community group critical of petitioner’s coaching performance “co-opted” a black parent to “front” the group’s opposition to petitioner and the investigation did not address this (in fact, when interviewed by the Department, the black parent denied he was pressured to be a spokesperson and stated that criticism of petitioner went to his failure to relate effectively to the players on his team and had nothing whatsoever to do with race); (8) petitioner was pressured to win two particular games while white coaches were not so pressured (a seemingly contradictory allegation is made that Macomb’s denial of a link between a coaching contract and games won or lost defies “common sense”); (9) parents directed players on the team to rebuff petitioner’s coaching efforts to make him appear deficient and this allegation was not investigated; and (10) the disparity between petitioner’s status as a satisfactory teacher and an unsatisfactory coach never “made an impression” on the Department’s investigation.

In cataloging the foregoing as deficiencies of the investigation (which essentially support Macomb’s position that petitioner failed to foster community satisfaction and support of the basketball program through effective community relations), petitioner fails to set forth examples of how he was treated differently based on his race, the only basis upon which the Department and the Commission could assert jurisdiction. Petitioner apparently concludes speculation as to a racial motivation for his treatment and dismissal constitutes missing evidence the Department overlooked and was required to investigate exhaustively. However, inferences of fact based on imagination, speculation, and conjecture cannot stand as a matter of law (Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 244, 504 N.E.2d 230, 236) and the Department is not required to disprove mere supposition.

The record indicates the Department fully investigated the facts as supplied by petitioner and Macomb. The fact petitioner does not concur with the result of that investigation is an insufficient basis for claiming the investigation itself was deficient. We find the Department fully investigated the verifiable facts tending to show the circumstances and causes of petitioner’s dismissal as basketball coach, which resulted in a finding of a lack of substantial evidence of either unequal treatment or discharge based on his race.

Petitioner also claims the Commission erred in determining his allegations and facts did not support a prima facie case of race discrimination. We note initially that upon review by the Commission, petitioner was not limited to the record before the Department but was given a second chance to submit new or additional evidence. (See Ill. Rev. Stat. 1989, ch. 68, par. 8 — 103.) He failed to do so and instead reargued his interpretation of the facts.

To establish a prima facie case of race discrimination, complainant must prove (1) he was a member of a racial minority; (2) he was qualified for the job he was performing; (3) he was satisfying the normal requirements of his work; (4) he was discharged; and (5) after his discharge the employer assigned an employee of another racial group to perform the same work. (St. Mary of Nazareth Hospital Center v. Curtis (1987), 163 Ill. App. 3d 566, 569, 516 N.E.2d 813, 815-16.) It is apparent the investigation produced substantial evidence of community dissatisfaction with petitioner’s abilities and techniques as basketball coach and efforts were aimed at obtaining his dismissal. Petitioner admits that players on his team rebuffed his game strategies, which is evidence supporting Macomb’s position, i.e., petitioner failed to provide guidance and establish relationships with members of his athletic team. It seems evident that a high school athletic sports program would necessarily be dependent in large measure for its success on community and parental support. Under such circumstances, efforts to engender a cooperative relationship between the athletic faculty, players on the team, and members of the community interested in the sports program would constitute the normal requirements of employment in a coaching capacity. Therefore, an essential element of petitioner’s prima facie case has not been shown.

We now address the standard of review to be applied when reviewing Commission orders affirming a dismissal of the charges based on the Department’s investigative report in the absence of an adjudicatory proceeding.

Section 8 — 111(A)(2) of the Act provides that upon appellate review the Commission’s findings of fact shall be sustained unless the court determines the findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111(AX2).) When the Commission reviews “decisions of the Department to dismiss a charge” (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 103(A)(1)), it may in its discretion conduct an evidentiary hearing on the charges (111. Rev. Stat. 1989, ch. 68, par. 8 — 103(B)). However, in the absence of such an adjudication, no “findings of fact” made by the Commission are subject to review. Rather, the issue for review is the Commission’s exercise of its discretionary authority to dismiss the charges. Investigations conducted by administrative agencies attempt to discover and produce evidence not for the purpose of adjudicating guilt or proving pending charges, but rather to serve as the basis for determining whether facts exist to justify instituting a complaint. (Klein v. Fair Employment Practices Comm’n (1975), 31 Ill. App. 3d 473, 483, 334 N.E.2d 370, 377.) In these instances, the scope of review is necessarily limited to determining whether the decision to dismiss the charge was an abuse of discretion.

In both Klein and Sanders v. United Parcel Service (1986), 142 Ill. App. 3d 362, 365, 491 N.E.2d 1314, 1317, the first district has determined that the Commission’s dismissal of the charges based on an investigative report by the Department would be reversed only if the decision of dismissal was arbitrary, capricious or an abuse of discretion. We likewise conclude that the preliminary determination of whether facts exist to justify issuance of a complaint necessarily lies within the discretionary authority and expertise of the Commission and the Department and will not be disturbed by the reviewing court absent abuse of that discretion.

Although not cited by the parties, we note in Moriearty v. Civil Service Comm’n (1985), 131 Ill. App. 3d 198, 200-01, 474 N.E.2d 1291, 1294, this court rejected the more deferential “abuse of discretion” standard of review in reviewing a decision by the Civil Service Commission denying plaintiff’s appeal of her layoff following a staff investigation. Citing the arbitrary and capricious standard applied to dismissal after an “investigation” in Klein, and the manifest weight standard applied to the dismissal of charges after “hearings” before a hearing examiner in Unger v. Sirena Division of Consolidated Foods Corp. (1978), 60 Ill. App. 3d 840, 377 N.E.2d 266, and reasoning that Powell v. Jones (1973), 56 Ill. 2d 70, 305 N.E.2d 166, equated a civil service commission “staff investigation” with a “stage in the hearing process,” the Moriearty court deemed the manifest weight of the evidence test to be the appropriate standard of review. This court affirmed the decision of the agency utilizing “manifest weight of the evidence” as the scope of review. The instant case, by contrast, falls within that category of cases to which the Klein standard applies.

Under the statutory scheme in the matter now before this court, the Commission possesses the expertise and statutory discretion to determine whether dismissal following an investigation is warranted by the facts of the case or whether a basis exists for requiring an evidentiary hearing. Given the legislative grant of discretionary authority to the Department to dismiss a complaint following an investigation, which dismissal is subject to review by a panel of the Commission, we conclude the proper scope of review by this court is limited to determining whether the Commission’s decision dismissing the charges was an abuse of discretion. We find no abuse of discretion.

Last, petitioner suggests that a public employer, itself not racially motivated to discharge an employee but which is pressured by a community group to do so, should be held to have engaged in race discrimination. Inasmuch as petitioner has failed to produce any evidence that either Macomb or members of the community acted on the basis of petitioner’s race in seeking his discharge, we need not comment on this theory.

The order of the Commission is affirmed.

Affirmed.

STEIGMANN and COOK, JJ., concur.