author: JUSTICE SCARIANO

text:
    LEROY MARTIN, Superintendent of Police of the City of Chicago, Plaintiff-Appellee, v. JESSE CAJDA et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—2397
    Opinion filed November 24, 1992.
    Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On February 1, 1990, the Chicago police department initiated a disciplinary proceeding against defendant Officer Jessie Cajda (Cajda), an 18-year veteran of the department, charging him with, inter alia, violating section 25 — 30 of the Municipal Code of Chicago. (Chicago Municipal Code §25 — 30 (1980), recodified Chicago Municipal Code §2 — 152—340 (1990).) That provision, commonly known as the residency ordinance, obligates all employees and officers of the City of Chicago (the City) to reside “actually” within its corporate boundaríes. Chicago Municipal Code §25 — 30 (1980), recodified Chicago Municipal Code §2 — 152—340 (1990).

On May 30, 1990, the Chicago Police Board (Board) held a hearing on the charges against Cajda, at which he testified as an adverse witness, called by the department. He stated that he had resided at 4149 North Mango, Chicago, Illinois, during his entire tenure as a police officer, but admitted that his wife of 10 years, Nancy Cajda (nee Villi) owned the home in which she resided at 3025 South Oak Park Avenue in Berwyn, Illinois, and at which she had lived throughout the couple’s marriage.

Officer Eugene Labiak, an investigator with the police department’s Inspector General’s office, who had conducted an investigation of Cajda, testified that he observed Cajda on seven different occasions either arrive at the Berwyn address after completing his shift as a patrolman, or leave that house in uniform and proceed to work. He also stated that he canvassed the area around the Berwyn residence, speaking to neighbors, asking if they recognized Cajda.

Two neighbors, Ms. Joyce Czerwien and Ms. Cathy Tomascewski, also testified. Ms. Czerwien lived adjacent to the Cajda residence in Berwyn, and Ms. Tomascewski lived two homes north of it. Both witnesses testified that they had seen Cajda perform duties, such as mowing the lawn and shoveling snow, at the Berwyn residence, acts consistent with actual residence there. Ms. Czerwien testified that approximately IV2 years before the date of the hearing, she observed Cajda “move out” of the Berwyn residence.

Cajda testified in his own defense as well. He stated that he owned his home in Chicago, paid the bills there and used that home as his mailing address on his Illinois and Federal income tax forms. He introduced an affidavit of title on the Berwyn home which showed that it was owned by his wife in her maiden name and that Cajda had no ownership interest in it.

He explained to the hearing officer that he and his wife maintained separate residences because his wife wanted the children to grow up and attend school in the suburbs. He admitted that he did not reside alone in the Chicago home, but that his mother and brother resided there as well.

Cajda presented 21 witnesses and a considerable amount of documentary evidence. The witnesses all testified essentially that they would either call or pick up Cajda at the Chicago address, and that he was at that address at various hours of the day and evening. The documentary evidence, which included utility bills and social club memberships, indicated that Cajda resided at the Chicago address.

At the close of evidence, the hearing officer found that Cajda violated the Chicago mandatory residency ordinance (Chicago Municipal Code §25 — 30 (1980), recodified Chicago Municipal Code §2 — 152—340 (1990)), in that he actually resided at the Berwyn residence from 1980 ■until the hearing date in 1990, and that this resulted in a violation of six of the police department’s disciplinary rules. The hearing officer recommended that the Board suspend Cajda for 60 days as punishment for his violations. The Board accepted the hearing officer’s recommendation and entered a decision suspending Cajda from February 3, 1990, until and including April 3,1990.

Superintendent of Police Martin filed a complaint for administrative review in the circuit court of Cook County, pursuant to section 3—101 et seq. of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, pars. 3—101 through 3—112), alleging that the Board erred in failing to discharge Cajda after finding that he did not “actually” reside in the City of Chicago at some point while in the service of the City. The superintendent sought a reversal of the Board’s sanction and asked the court to remand the action to the Board, ordering it to discharge Cajda.

In his answer, Cajda denied the applicability of section 25 — 30 to his case and also denied that the section required discharge as an automatic sanction for a violation thereof. He raised no affirmative matters other than to request that the City tender his back pay to the circuit court and that it be placed in a fund until the resolution of the litigation. Cajda did not allege that the Board’s finding was against the manifest weight of the evidence nor did he intimate in any other way that he sought review of the Board’s factual findings.

After accepting memoranda from the parties and entertaining oral argument, the trial court ruled that the Board erred. It determined that the Chicago residency requirement ordinance does in fact mandate discharge for any violation thereof. Accordingly, on March 15, 1991, the court entered an order reversing the sanction imposed by the Board and remanding the cause to that agency for the entry of an order of discharge against Cajda in accordance with section 25—30 of the Municipal Code of Chicago, Illinois (Chicago Municipal Code §25—30 (1980), recodified Chicago Municipal Code §2—152—340 (1990)). On June 14, 1991, the Board complied with the court’s order by discharging Cajda from the Chicago police department.

Subsequently, however, Cajda filed a motion to set a briefing schedule and to reverse the Board’s order of discharge. The motion was not in the form of a complaint for administrative review as required by section 3—101 of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—101). At the hearing on his motion, Cajda suggested that the trial court had two options: It could either reverse its earlier decision as to the requirements of the Chicago residency ordinance or affirm the order of the Board discharging Cajda and allow him to appeal the decision. In response, Superintendent Martin argued that Cajda’s motion, in substance, sought to have the court reconsider its earlier decision on the proper construction of Chicago’s residency ordinance; and he further pointed out that under section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203), a motion to reconsider a judgment must be filed within 30 days of its entry, unless extended by the court within such 30-day period. The court rendered its initial judgment on March 15, 1991, yet the hearing on Cajda’s motion was held on July 9, 1991, well after the 30 days had expired.

The trial court rejected Martin’s argument and held that the Board had complied with the court’s previous ruling. In this later order, the trial judge included an approximation of Supreme Court Rule 304(a) language, stating that “[t]he judgment if [sic] discharge is now final and the court finds no reason to delay enforcement of any appeal of this judgment.” On July 19,1991, Cajda filed his notice of appeal.

As noted above, the circuit court issued two separate orders in this action. The first, issued on March 15, 1991, held that the Board misinterpreted section 25 — 30 of the Chicago Municipal Code and therefore erred by imposing a sanction of less than discharge for Cajda’s violation of the City’s residency ordinance. In its second order, issued on July 9, 1991, the trial court found that the Board had complied with the court’s prior order remanding the action for entry of an order of discharge. The court also found that the judgment was final and therefore appealable.

Cajda predicates this court’s jurisdiction of his appeal on Supreme Court Rule 301 (134 Ill. 2d R. 301), contending that this is an appeal by right from a final judgment of the circuit court of Cook County. Although he never states it as such, Cajda necessarily takes the position that he appeals from the trial court’s July 9, 1991, order, and not its March 15, 1991, order. Martin responds that the order of March 15 was final and appealable, that Cajda’s July 19, 1991, notice of appeal was untimely, and thus, this court is without jurisdiction over this appeal.

In Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 449 N.E.2d 843, our supreme court addressed what constitutes a final and appealable order for the purposes of a circuit court’s review of an administrative proceeding, and held that the form of an order does not dictate its finality and that remandment of the cause to the agency does not preclude the finality, and thus the appealability, of the order. Rather than exalt form over substance, the Wilkey court held that the finality of an order which remands an action to the agency turns on what the court instructed the agency to do.

“ ‘If, upon remandment, the trial court has only to enter a judgment or decree in accordance with the directions of the reviewing court, or to conduct further proceedings on uncontroverted incidental matters, then, irrespective of the remandment clause in the judgment order, the judgment of the appellate court is final and reviewable.’ ” (Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 845, quoting Cory Corp. v. Fitzgerald (1949), 403 Ill. 409, 414, 86 N.E.2d 363, 366.)

The court contrasted that situation to one in which the reviewing court orders the trial court, or in this case an administrative agency, to hold a new trial or another proceeding which involves a disputed question of fact or law. Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 845.

With Wilkey’s standard as our touchstone, we find that the trial court order of March 15, 1991, was final and appealable. That order required the Board to enter an order of discharge as a penalty for Cajda’s breach of the City’s residency ordinance. The order left nothing to the discretion of the Board, nor did it necessitate any further proceedings other than the mere ministerial task of entering the prescribed order.

This is the precise situation that confronted the court in Fisher v. Rock Island County (1989), 191 Ill. App. 3d 110, 547 N.E.2d 678, where the plaintiff sought review of a merit commission determination that he was unfit to be a candidate for a position as a deputy sheriff of Rock Island County. The circuit court reversed the commission’s determination and remanded the action to that agency with directions to add the plaintiff’s name to the list of approved applicants. Before complying with the circuit court’s order, the commission appealed the remand order.

The Fisher court noted, sua sponte, that it could assert jurisdiction over the appeal because the remand order constituted a final and appealable order. The court based its decision on the content of the order, recognizing that it “was specific in nature and left no discretion with the Merit Commission. There was nothing left for the Merit Commission to do except comply with the circuit court’s order or appeal.” Fisher, 191 Ill. App. 3d at 113, 547 N.E.2d at 680.

The same can be said here. The court’s March 15, 1991, order remanded the cause back to the Board with specific instructions to discharge Cajda. The Board had no discretion; its only option was to comply with the order of the trial court.

Cajda, while discounting the applicability of Fisher, points to this court’s decision in Board of Education v. Box (1989), 191 Ill. App. 3d 31, 547 N.E.2d 627, as being analogous to the instant case. There, the board sought circuit court review of a hearing officer’s determination that a tenured teacher should not be discharged as a sanction for sexually abusing his students. The trial court reversed and remanded, ordering the hearing officer to “make findings which were not in conflict with each other and to decide the issues according to the law.” Box, 191 Ill. App. 3d at 36, 547 N.E.2d at 630.

On remand, the hearing officer complied with the court’s instruction and found that the facts warranted discharge as a sanction. Box sought administrative review of the second hearing and the circuit court affirmed the hearing officer’s determination. Box appealed. On appeal, the board of education argued that the trial court’s remandment order was final, and therefore, given that the notice of appeal was filed nearly six months after the alleged “final order,” the appellate court was without jurisdiction. The Box court rejected that argument, holding that the first order was interlocutory and, therefore, not appealable.

While the two cases share similarities, one essential difference renders Box inapposite to the case at bar. In Box, the trial court’s order obligated the hearing officer to make new, consistent findings of facts and to redetermine the issues in the case in accordance with applicable law. In short, the trial court commanded the hearing officer to consider the matter anew, a direction that exemplifies the type of order Wilkey contemplated as being nonfinal. Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844 (“ ‘[W]here [the] cause is remanded for a new trial or other further proceedings involving disputed questions of law or fact, the judgment *** is not of a final character’ ”). (Citation omitted.)

Here, in contrast, the remand order of March 15, 1991, resolved the dispute. The Board was instructed only to enter an order of discharge; the trial court left it no facts to redetermine or any legal issues to redecide — the archetypical remand order that the Wilkey court identified as being substantively final and thus appealable. Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.

The last issue that Cajda raises is that the March 15, 1992, order could not be final as neither the court nor the parties viewed it as such. He directs our attention to the colloquy between the trial court and counsel that day, the salient portion of which, after the court had issued the order, reads as follows:

“THE COURT: Is this a ruling [construing section 25 — 30 of the Municipal Code of Chicago to mandate discharge for any violation of the Chicago residency requirement] of first impression?
Mr. Roddy [counsel for Cajda]: Yes
THE COURT: This is the first one.
Mr. Roddy: Yes.
THE COURT: I think we ought to get on with appeal. There may be some grounds there.
Mr. Roddy: It can’t, Judge. It [the cause] has to go back to the police board now. They can either follow the order or not, and then it comes back.
Ms. Margolis [counsel for Superintendent Martin]: I believe possibly the procedure is to reverse and remand for entry of an order consistent with your finding, and it should be discharged.
Mr. Roddy: They [the police board] will either obey your order or not.
THE COURT: Once they do, then you come back here. Then you go up.” (Emphasis added.)

At first, the trial court apparently believed that it issued a final order which was immediately appealable. The court, upon being informed that its determination was one of first impression, urged Cajda to “get on with [the] appeal,” as it felt Cajda may have had valid grounds.- Cajda’s counsel erroneously disaffirmed the court of its belief that the order was final. Cajda’s emphasis on the court’s misunderstanding of the law is therefore misplaced, as the court’s error resulted from his attorney’s statements.

More significant and completely dispositive of this issue, “[t]o vest the appellate court with jurisdiction a party must file a notice of appeal within 30 days after entry of judgment appealed from.” (Lombard v. Elmore (1986), 112 Ill. 2d 467, 471, 493 N.E.2d 1063, 1065.) Compliance with the deadlines for appeals in Supreme Court Rule 303 is mandatory and jurisdictional (In re Application of County Treasurer and ex-officio County Collector of Cook County for Judgment and Order of Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for 1984 (1990), 208 Ill. App. 3d 561, 567 N.E.2d 486); Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 947, 397 N.E.2d 194, 195 (and cases cited therein)), and appellate jurisdiction may not be conferred by laches, consent, waiver or estoppel. Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 517 N.E.2d 1220; Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 365 N.E.2d 102.

The notions of the court and the parties as to the finality of an order will not render a final order nonfinal. (Altschuler v. Altschuler (1948), 399 Ill. 559, 78 N.E.2d 225 (stating that the finality of an order turns on its substance and effect, and not the characterization given by the trial court); Branch v. European Autohaus, Ltd. (1981), 97 Ill. App. 3d 949, 424 N.E.2d 6 (finality of order depends on substance not form).) Nor will a trial court’s misapprehension of the law allow an appellant to file his notice of appeal more than 30 days after the trial court issues what actually constitutes a final order. (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610 (holding that trial court has no authority to extend time limit for filing a notice of appeal).) Therefore, Cajda’s notice of appeal, filed in July 1991, was untimely; thus, this court is without jurisdiction to entertain his appeal.

Appeal dismissed.

HARTMAN, P.J., and McCORMICK, J., concur.

       Although Cory Corp. (403 Ill. 409, 86 N.E.2d 363), upon which the Wilkey court relied, discussed the finality and appealability of an appellate court order, the Wilkey court later stated that it adhered to Cory Corp.’s definition of finality for the purposes of administrative review as well. Wilkey, 96 Ill. 2d at 250, 449 N.E.2d at 845, citing Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 266, 383 N.E.2d 207; J.M. Jones Co. v. Industrial Comm’n (1978), 71 Ill. 2d 368, 370, 375 N.E.2d 1306; Stockton v. Industrial Comm’n (1977), 69 Ill. 2d 120, 124-25, 370 N.E.2d 548; South Chicago Community Hospital v. Industrial Comm’n (1969), 44 Ill. 2d 119, 121-22, 254 N.E.2d 448; Downey v. Industrial Comm’n (1969), 44 Ill. 2d 28, 29, 253 N.E.2d 371.

       Cajda argues that Fisher is inapplicable to the facts here because, unlike this case, the opinion in Fisher did not state that the agency conducted any hearings; nor did the merit commission impose any punishment on the plaintiff. The two “distinguishing” factors Cajda draws the court’s attention to have no impact on Fisher’s central holding that a trial court’s order which remands a cause to the agency for a specific purpose and leaves no discretion to the agency to accomplish that purpose is final and appealable.


source: Caselaw Access Project

author: JUSTICE TULLY

license: Public Domain

text:
    ROY LEE KING, Plaintiff-Appellant, v. LINEMASTER SWITCH CORPORATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1342
    Opinion filed November 25, 1992.
    Herbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago (Herbert F. Stride, William J. Harte, and Joan Mannix, of counsel), for appellant.
    Knight, Hoppe, Fanning & Knight, Ltd., of Park Ridge (Patrick J. Fanning and Janella L. Barbrow, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This case arises out of an accident in which the plaintiff, Roy Lee King, on February 11, 1982, had his hand amputated by a metal shearing machine. Subsequent to his injury, King filed a lawsuit on September 1, 1983, against various parties, none of which are still involved in the litigation. On February 10, 1984, King filed an amended complaint in that suit, adding Linemaster Switch Corporation (Line-master) as a defendant.

King, in counts X, XI, and XII of his amended complaint, alleges that Linemaster defectively manufactured the electronic foot switch controlling the metal shear and is liable to him for the damages he suffered in the accident under the theories of product liability (count X), negligence (count XI), and breach of warranty (count XII). Line-master moved for summary judgment pursuant to section 2—1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) as to all three counts. King voluntarily dismissed his breach of warranty claim. The trial court denied the motion as to the negligence claim and granted it as to the products liability claim. The trial court, in granting the motion with respect to count X, agreed with Linemaster’s argument that the product liability claim was time barred pursuant to the 12-year statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13—213). In ruling for Linemaster, the trial court relied upon the deposition and affidavit of James Mead, a field sales manager for Linemaster.

In Mead’s one-page affidavit, he stated that: he was familiar with the manufacture, sale, and distribution of Linemaster’s products; the foot switch alleged to have been involved in the accident was manufactured by Linemaster; that the serial numbers located on the snap switches contained in the foot switch indicated that the foot switch was manufactured in 1967; the foot switch in question would have been sold within one to two years from the date of manufacture; and the foot switch was not installed by, serviced or altered by Linemaster after its date of sale.

Mead’s deposition, taken after the affidavit was executed, further elaborated on the information contained in his affidavit. In that exhaustive deposition, Mead explained that his familiarity with Linemaster’s product line is based on his 36 years of experience with the company. However, when questioned on how he reached the conclusion that the foot switch was manufactured by Linemaster, he indicated that he based his conclusion on photographs furnished by the plaintiff and/or upon the representation of someone in Linemaster’s engineering department.

With regards to the snap switch contained within the foot switch, Mead stated that it was manufactured by a company named Micro-switch. It was Microswitch’s serial number “6704” that indicated to Mead that the snap switch component was manufactured in 1967. Thus, it was from the fact that the component part was manufactured in 1967, that Mead drew his conclusion in the affidavit that that foot switch was manufactured in 1967.

During his deposition, Mead at first stated that he got the date code from the field inspection notes of Robert Tarosky, King’s expert. Later, Mead stated that he got the date code from the plaintiff’s photographs. Additionally, Mead indicated that a letter from an employee of Microswitch assisted in concluding the date of the manufacture of the snap switch and, consequently, the foot switch.

Mead stated that Linemaster did not code its assembled foot switches. He indicated that Microswitch sells Linemaster thousands of component switches two to three times a year. Mead stated that Microswitch does not sell Linemaster old snap switches and that Line-master uses the latest model component parts in manufacturing its foot switches.

In his affidavit, Mead stated that the foot switch at issue would have been sold within one to two years from the date of manufacture. However, at his deposition, Mead said that a completed foot switch moves out of Linemaster’s plant within 6 to 12 months. With regards to when the foot switch involved in this case was sold, Mead said, “I don’t know when this foot switch was sold exactly. *** Nobody would know.” Furthermore, there is no documentation available which would indicate the foot switch’s date of sale.

King filed a motion to strike Mead’s affidavit for failure to conform with the requirements of Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)). However, the record contains no ruling by the trial court on the motion to strike.

King’s first argument on appeal is that the affidavit of Mead fails to conform to Supreme Court Rule 191(a). We cannot address the merits of this contention because King has failed to properly preserve this issue for appeal. “When a party moves to strike an affidavit which has been filed in support of a motion for summary judgment, it is that party’s duty *** to get a ruling on the motion. His failure to do so waives his objections ***.” (McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 763, 428 N.E.2d 739; see also Oak Trust & Savings Bank v. Annerino (1978), 64 Ill. App. 3d 1030, 381 N.E.2d 1389.) Accordingly, we find King failed to obtain a ruling on this issue and, consequently, has waived it.

King argues that the trial court erred in entering summary judgment against him after concluding that his action was barred by the statute of repose, which provides, in pertinent part, that: “no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—213(b).) The Illinois Supreme Court, in Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, stated:

“While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. [Citations.]
In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent.” (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.)

The applicable standard of review for evaluating the propriety of a trial court’s entry of summary judgment is de novo. Demos v. National Bank (1991), 209 Ill. App. 3d 655, 567 N.E.2d 1083.

In light of the foregoing principles, we conclude the trial court erred in granting summary judgment. Mead’s affidavit is inconsistent with numerous parts of his deposition. The conclusions Mead’s affidavit and deposition draw are speculative, self-serving and, at times, based on secondhand information. Furthermore, the record is devoid of any documentation to bolster Mead’s conclusions. Perhaps the most compelling reason demanding the result we reach today is Mead’s statement: “I don’t know when this foot switch was sold exactly. *** Nobody would know.” This is an issue of fact, which when construed liberally in favor of King, would place him within the limits of the statute of repose. Accordingly, we reverse the order granting summary judgment and remand this cause to the circuit court of Cook County for further proceedings.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUDITH ADAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—2238
    Opinion filed November 25, 1992.

      Rita A. Fry, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a bench trial, defendant, Judith Adams, an employee of the Secretary of State’s driver’s license division, was convicted of two counts each of bribery (Ill. Rev. Stat. 1987, ch. 38, pars. 33—1(d), 33—1(e)), official misconduct (Ill. Rev. Stat. 1987, ch. 38, pars. 33—1(d), 33—3(b), 33—3(d)), and conspiracy (Ill. Rev. Stat. 1987, ch. 38, par. 8—2), resulting from the sale of a fraudulent driver’s license at defendant’s place of employment on or about June 22, 1987. Defendant was tried concurrently with Eugene Richardson, who was her supervisor. She was sentenced to 30 months’ probation and required to forfeit her public employment.

On appeal, defendant asserts that (1) her out-of-court statements were improperly admitted; (2) the State failed to prove her guilty of conspiracy since there was no evidence that she ever agreed to the scheme; and (3) the State failed to prove her guilty of bribery or official misconduct since there was no evidence that she ever solicited or received funds she knew were intended to influence her performance of an act related to her employment. We reverse defendant’s convictions.

In March 1987, after receiving a tip from Andrea Harris, an informant, about fictitious drivers’ licenses allegedly being issued, the Illinois State Police initiated an investigation of the driver’s license testing facility located at 99th Street and Martin Luther King Drive in Chicago. Five special agents participated in the investigation by visiting the facility with Harris on various occasions in an attempt to obtain fictitious drivers’ licenses.

At trial, James Cokely, the operation’s admitted bagman, testified for the State in exchange for a probation recommendation on another conviction. He explained the license-for-sale scheme. After Richardson asked Cokely to assist in the scheme, Cokely met with Richardson, Harris, and Illinois State Police Special Agents Mary Woolery and Graylyn Simpson on April 8, 1987. At that time, Richardson took Cokely and Harris aside and told them that the price for a driver’s license would be $500.

On May 27, 1987, Cokely sold a fictitious driver’s license to Simpson. On June 4, 1987, Simpson telephoned Cokely at home and gave him information for another fictitious driver’s license. Four days later, Woolery and Simpson visited the facility and gave Cokely $500 and the information to be put on the license. Cokely gave the money and information to Richardson and received $75 for his assistance. After Simpson passed the written driving test, Cokely retrieved his application form from the vision counter, took him into the basement, filled out the back of the road test section, and told him to go upstairs to get his license.

On June 22, 1987, Woolery visited the facility with Special Agent Michael Cowling. Cokely took them to his car, where they gave him $500 and showed him the information for the license. Cokely took Cowling into the facility and brought him to Richardson. When Cowling later came to the road test area, Cokely had him sign the back of the application form instead of taking the road test. Cokely signed the application form and sent Cowling back into the building to get a driver’s license. When Cokely gave Richardson the $500, he received $75 in return.

Cowling testified that, on June 22, 1987, while wearing a body wire, he and Woolery visited the 99th Street and King Drive driver’s license facility. After meeting Cokely, they went to his car, where Woolery paid Cokely $500. When Woolery asked if they could pay less than $500, Cokely stated that he would have to speak with his superiors.

Cowling testified that Cokely took him into the facility through the back entrance and to the vision counter, where he was introduced to Richardson. After handing Richardson a piece of paper with the information for the fictitious driver’s license, Cowling followed Richardson into the lobby where applications are taken. From 50 feet away, Cowling saw Richardson speak with defendant, but he could not hear the conversation. Richardson then told Cowling to go to defendant to complete the application. Cowling stated that he saw defendant with the paper that Cowling earlier had given to Richardson.

Cowling testified that defendant requested identification from him three times. When he told her that he did not have any identification, defendant filled out the application with the information that Cowling gave her. At that point, Cowling spoke into his body mike, saying, “it is all confused.” Cowling testified that he had not expected defendant to ask for any identification because she had the paper with the information.

In order to fill out the application, defendant asked Cowling his name. When he gave the name, “Melvin Franklin,” defendant asked him to spell the name. She then asked for his address, birthdate, height, weight, glasses, and about his health. All the information that defendant filled out she obtained from Cowling. Defendant then asked Cowling for his social security number. After giving five numbers, Cowling told defendant that he could not remember the last four numbers. Defendant told him to make up some numbers. Defendant finished filling out the application and told Cowling to go to the cashier.

Richardson motioned to Cowling, gave him a completed written test, and told him to sit down and go through the motions. Cowling was then instructed to go outside to take the road test. Without taking the test, he was told by Cokely to go back inside to have his picture taken. Cowling then got his fictitious driver’s license in the name of Melvin Franklin.

Agent Frank Murphy, an investigator for the Secretary of State, testified that on January 29, 1988, he interviewed defendant, who identified the writing on the Melvin Franklin application as her handwriting and the voice on the undercover tape as her voice. Defendant told Murphy that she had filled out the application. When Murphy asked defendant how she was involved in that particular driver’s license, she replied that she filled out the information on the application with the information that Cowling gave her. She admitted that she did not see any identification from him.

Defendant told Murphy that she was periodically paid by Richardson and Eddie Jones to fill out information on applications. Usually, she was paid $50, but once Richardson gave her $100. She never gave any dates when she received money. On February 23, 1988, defendant was again interrogated by Murphy and gave substantially the same answers.

On cross-examination, Murphy testified that defendant stated that she had no knowledge of fictitious driver’s licenses, had no knowledge of any other employees receiving any money for giving any unauthorized assistance, and had never given or seen any employee give an improper exam. At the time of the Franklin application, Jones and Richardson were her supervisors, who sometimes ordered her to complete an application without proper identification. Defendant told Murphy that she completed the application without proper identification because she was afraid of being written up for insubordination by Richardson or Jones. Defendant also stated that she never saw any money exchanged and she was unaware of any money being exchanged.

Gloria Austen Williams, an employee at the facility, explained the usual and ordinary practices and procedures to obtain a driver’s license. When a person enters the facility, she goes to the information desk, shows her identification, and is directed to the application counter, where the clerks fill out the applications. After signing the completed application, the applicant takes the application to the cashier and pays a $10 application fee. The applicant then takes a vision test and a written test, if necessary. The clerk takes the written test from under the counter, puts the application number on the test paper, and has the applicant sign it. After finishing the test, the applicant brings it to the counter to be graded.

If the applicant passed the written test, the clerks mark “pass” on the test, tell the applicant to get her car and pull it around to the testing area, where her form will meet her. The application is then put into a basket on the counter. A clerk comes from the outside and takes the applications to the testing area, which is in an annex building. If the applicant passes the road test, the examiner gives her the application and tells her to go up the backstairs where she will get her license.

Williams also testified that the clerks at the application desk often filled out the applicant’s social security number without any verification. It was not proper behavior, however, for the clerk to tell the applicant to make up the number. At some time during the process, the applicant must show identification before getting a driver’s license.

Eugene Richardson, who was also a defendant, testified that on June 22, 1987, Cowling did not have an application form when he came to the vision desk. Richardson directed Cowling to the front counter to “the lady in blue,” whom he did not know was defendant. Richardson explained that all the clerks wore blue smocks. Richardson stated that he does not know what Cowling did at the front desk, except that he had an application form when he returned to the vision counter.

In addition, Richardson testified that he had previously loaned money to defendant, but did not give her money for any favors. Richardson denied approaching defendant, giving her a piece of paper with information for Cowling’s application, or ever asking her to fill out any fictitious applications.

Richardson explained that he had the authority to direct an employee to fill out an application without the applicant having identification. Richardson stated that it is not unusual for him to authorize the application without the person showing identification. Richardson also explained that there was no requirement regarding a social security number, which was not verified, except that a number had to appear on the application. If an employee failed to carry out a supervisor’s order, she could be written up for insubordination. Eventually, she could be terminated for multiple write-ups.

After closing arguments, the trial court found defendant guilty of two counts each of bribery, official misconduct, and conspiracy. After denying defendant’s motion for a new trial, the trial court sentenced her to 30 months’ probation with the requirement that she forfeit her public employment.

On appeal, defendant asserts that her convictions in connection with the license-for-sale scheme should be reversed because the State failed to prove that she agreed to the scheme. She emphasizes that Cokely, the operation’s admitted bagman, and Richardson, an accused co-conspirator, never mentioned defendant as part of the scheme. Furthermore, defendant argues, Williams testified that all of defendant’s actions were consistent with office procedures and chain of command in effect at the time. Since the key participants testified and none mentioned defendant either as a participant in a conspiracy or as ever having received money for performance of her duties, defendant concludes that there is insufficient evidence to convict her. We agree.

Before addressing the sufficiency of the evidence arguments, we consider defendant’s statements to Murphy. Defendant waived the arguments that her statements were inadmissible as evidence of other crimes and that there was no corroborating evidence, exclusive of the confession, which tends to show that a crime did occur and that defendant committed the crime.

Nevertheless, defendant’s statements cannot be considered as a confession. They are so vague as to time and relation to the particular events that they are meaningless. The statements do not contain any evidence that defendant accepted a bribe to influence her preparation of Agent Cowling’s application form. In fact, they lack any specific reference to bribery on the date and relative to Cowling’s application. Furthermore, there is no indication that the money given to defendant was pursuant to any incident-specific or ongoing agreement. Defendant could not even recall when she received any money from Jones or Richardson. Moreover, Richardson testified that he occasionally loaned defendant money.

In addition, Murphy testified that defendant denied any knowledge of fictitious licenses being issued, of other employees receiving money for unauthorized assistance, or of any employee administering an improper examination. Defendant also told Murphy that her supervisors, Jones and Richardson, sometimes ordered her to complete an application without proper identification, and that she completed Cowling’s application without identification because she was afraid of being written up for insubordination.

Taking defendant’s statement and the other evidence in the light most favorable to the prosecution, the State did not prove defendant guilty of bribery, official misconduct, and conspiracy beyond a reasonable doubt. Conspiracy is proved by showing (1) an intent to commit an offense; (2) an agreement with another to commit the offense; and (3) the commission of an act in furtherance of the agreement by a co-conspirator. People v. Harmison (1985), 108 Ill. 2d 197, 203; Ill. Rev. Stat. 1987, ch. 38, par. 8—2.

The State does not have to prove that the conspirators actually met and entered into a specific agreement. (People v. McNair (1981), 102 Ill. App. 3d 322, 331.) Instead, the agreement can be by words, acts, or understanding. (People v. Roberts (1980), 83 Ill. App. 3d 311, 318.) Furthermore, through circumstantial evidence, conspiracy can be proven by showing a common criminal purpose. (McNair, 102 Ill. App. 3d at 331.) Even so, the State must prove that the accused had the specific intent to commit conspiracy. People v. Lyons (1954), 4 Ill. 2d 396, 401; People v. McChristian (1974), 18 Ill. App. 3d 87, 90.

The State did not prove defendant guilty of conspiracy because it did not prove that she agreed to the license-for-sale scheme or was a knowing participant in the ongoing operation or had the specific intent to commit conspiracy. Therefore, we reverse her convictions for conspiracy.

Next, defendant asserts that the State did not prove her guilty of bribery or official misconduct since (1) there was no evidence that she ever solicited or received funds she knew were intended to influence her performance of an act related to her employment; (2) the State affirmatively established through Cowling that defendant did not act in a manner consistent with the bribery scheme; (3) the evidence showed that defendant at all times acted within office procedures; and (4) the State did not present any evidence that she had violated any law, rule, or regulation.

Instead of knowingly performing an act forbidden by law, defendant maintains that she performed an act affirmatively required by law. Since defendant’s job duties required her to fill out the application and she could have been disciplined for not following Richardson’s directives, defendant concludes that the State did not prove that she exceeded her lawful authority or performed an act not authorized by law.

To support her argument, defendant cites People v. Jordan (1973), 15 Ill. App. 3d 672, 675, which ruled that receipt of property is not sufficient to sustain a bribery conviction. Defendant finds Jordan significant because that defendant, a police officer, accepted $10 from an ambulance driver who answered his emergency call. His accepting the money was alleged to be part of a kickback scheme involving bribes. There was, however, no evidence of either the officer’s particular agreement to the scheme nor was there evidence that the officer had summoned the ambulance. The reviewing court found that by accepting the money the defendant merely accepted a gratuity that could not sustain a bribery conviction. Jordan, 15 Ill. App. 3d at 675.

The State responds that defendant breached her official duties by improperly filling out a form with information she knew was false and for which the applicant had not supplied proper identification. The State argues that defendant performed her improper acts in the furtherance of the unlawful act only after $500 was solicited and paid to Cokely, who was a co-conspirator. The State maintains that it does not have to prove that defendant personally solicited or accepted the money since she was shown by her actions to be a participant in the conspiracy. In addition, the State contends that defendant was properly convicted of official misconduct because she performed the act of bribery in her capacity as a public employee.

A person commits bribery when:

“(d) He receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to. cause him to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness; or
(e) He solicits, receives, retains, or agrees to accept any property or personal advantage pursuant to an understanding that he shall improperly influence or attempt to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness.” Ill. Rev. Stat. 1987, ch. 38, pars. 33—1(d), (e).

The official misconduct charges were based on the bribery charges. Official misconduct occurs when a public officer or employee, in his official capacity:

“(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
***
(d) Solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law.” Ill. Rev. Stat. 1981, ch. 38, pars. 33—3(b), (d).

Taking the evidence in light most favorable to the prosecution, the State did not prove that defendant knowingly received or solicited anything of value for filling out the false application on the date in question. Therefore, we find that the State did not prove defendant guilty beyond a reasonable doubt of bribery or official misconduct.

Based on the foregoing, we reverse defendant’s convictions for bribery, official misconduct, and conspiracy.

Reversed.

GREIMAN, P.J., and TULLY, J., concur.


author: PRESIDING JUSTICE JIGANTI JUSTICE McMORROW,

text:
    STEVEN SOLICH et al., Plaintiffs-Appellees, v. GEORGE AND ANNA PORTES CANCER PREVENTION CENTER OF CHICAGO, INC., et al., Defendants-Appellants.—GEORGE AND ANNA PORTES CANCER PREVENTION CENTER OF CHICAGO, INC., Plaintiff and Cross-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant and Cross-Appellant.
    First District (4th Division)
    No. 1—91—0323
    Opinion filed November 25, 1992.

      McMORROW, J., dissenting.
    French, Kezelis & Kominiarek, P.C., of Chicago (James M. Hofert, Russell P. Veldenz, and Daniel C. Hofert, of counsel), for appellant George and Anna Portes Cancer Prevention Center of Chicago, Inc.
    Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (John K. Hughes, Luanne Ellison, and Jonathan A. Rothstein, of counsel), for appellant United States Steel Corporation.

      Robert B. Patterson and Danielle M. Jaeschke, both of Drumke & Patterson, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Steven and Helen Solich, filed suit in the circuit court of Cook County to recover damages caused by the alleged negligence of the defendants, U.S. Steel Corporation and Portes Cancer Prevention Center, for failing to report to Steven Solich the findings of a chest X ray. Codefendant Portes filed a cross-claim against U.S. Steel for equitable apportionment. U.S. Steel and Portes now appeal from the jury’s verdict for the Soliches and U.S. Steel further appeals from the jury’s apportionment of the verdict, 99% to U.S. Steel and 1% to Portes.

Among numerous contentions, U.S. Steel argues that the exclusivity provisions of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) barred the Soliches’ lawsuit. Portes claims that the Soliches’ suit should have been dismissed based upon the medical malpractice statute of limitations, challenges the sufficiency of the evidence, and alleges other errors at trial.

Steven Solich became employed by U.S. Steel in 1948 as a millwright helper. In 1968, he was promoted to a foreman and subsequently became entitled to take advantage of the employee benefit of an optional yearly management physical paid for by U.S. Steel. The physical examinations were normally conducted at the plant’s own medical clinic. However, in 1975, the clinic was understaffed and U.S. Steel contracted with the Portes Cancer Prevention Center to perform the physicals, which included various laboratory tests and a chest X ray. The results of the employee’s physical were to be reported to U.S. Steel’s medical director after the employee signed a release form authorizing Portes to do so. The employee could also have the results sent to his or her family physician or residence.

In 1975, Solich participated in the management physical program. U.S. Steel arranged for his physical to be conducted at Portes, Solich signed a release form, and the results were sent directly to U.S. Steel’s medical director and were ultimately retained at U.S. Steel as part of Solich’s permanent medical record. Solich’s 1975 chest X ray results read: “chest X-ray, interpretation normal *** lungs, fibrosis.” These results were not discussed with him. Various experts testified at trial and presented conflicting opinions as to whether the finding of fibrosis in Solich’s 1975 X ray was clinically significant. Solich had other management physicals in 1976 and 1977. His 1977 chest X ray indicated a finding of “increase in hilar markings.” His 1982 management physical revealed the presence of silicosis in his lungs and he was referred by U.S. Steel to another physician at Northwestern University. Solich retired from U.S. Steel due to his lung condition in 1982.

Solich filed a claim under the Workers’ Compensation Act for injuries allegedly sustained while he was employed at U.S. Steel, namely, hearing loss and pulmonary disease, including silicosis and asbestosis. In 1983, Solich settled with U.S. Steel for compensation for his injuries and the settlement was approved by the Industrial Commission. In 1984, Solich brought the action at issue against U.S. Steel and Portes, alleging that their failure to report to him the results of the 1975 X ray indicating fibrosis aggravated his lung condition which eventually resulted in silicosis. Helen Solich filed a separate claim for loss of consortium.

U.S. Steel contends that Solich’s action was barred by the exclusive-remedy provision of the Worker’s Compensation Act. The Act bars a common law action by an employee against his employer or co-employees “for injury or death sustained by any employee while engaged in the line of his duty as such employee.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) To be compensable under the Act, the injuries sustained by the employee must be “arising out of and in the course of his employment.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.1(b)(2).) “Arising out of” refers to the causal connection between the employment and the injury. The causal connection is demonstrated if the claimant establishes that the injury’s origin lies in some risk related to the employment. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 480, 548 N.E.2d 1033; Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 85, 481 N.E.2d 684; Scheffler Greenhouses, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 361, 366, 362 N.E.2d 325.) “ ‘In the course of’ employment” refers to the time, place, and circumstances under which the injury is received. (Scheffler Greenhouses, 66 Ill. 2d at 366-67, 362 N.E.2d at 327.) An injury will generally be found to arise “in the course of employment” when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and when he is fulfilling those duties or engaged in something incidental thereto. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 278, 201 N.E.2d 434.) Each claim for compensation must be determined on its own facts. Campbell “66” Express, Inc. v. Industrial Comm’n (1980), 83 Ill. 2d 353, 357, 415 N.E.2d 1043.

In the instant case, the injury complained of is the aggravation of Solich’s work-related lung disease due to the failure of U.S. Steel and Portes to report to him the finding of fibrosis in his 1975 X ray. Solich argues that his injury did not arise out of his employment because his physical examination was entirely voluntary and was not a condition of employment.

Given the facts in this case, we cannot conclude that simply because Solich’s physical was not mandatory, the injury did not arise out of his employment. The Illinois Supreme Court has addressed a very similar factual situation in Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 481 N.E.2d 684. The plaintiff in that case filed a medical malpractice action against a co-employee physician and his employers based on the physician’s alleged failure to properly diagnose the plaintiff’s nonwork-related lung cancer during an employer-sponsored physical. A factual dispute existed as to whether the physical was mandatory or voluntary. Even though the lung cancer was not work-related, the court found a sufficient causal nexus between the plaintiff’s employment and the physician’s failure to diagnose his lung cancer and concluded the injury arose out of his employment.

We find the difference between the instant case and Unger with respect to the voluntariness of the physical to be irrelevant in establishing the requisite causal nexis. A sufficient causal connection was demonstrated between Solich’s employment and U.S. Steel’s failure to report the finding of fibrosis in his 1975 chest X ray. U.S. Steel provided the physicals for the benefit of the employment relationship. Solich was benefited by having his physical condition examined and U.S. Steel was benefited by ensuring the continued good health of its employees. U.S. Steel made the arrangements and paid for Solich’s 1975 physical at the Portes Center. U.S. Steel’s medical director reviewed the results of Solich’s physical examinations and maintained his medical file at U.S. Steel’s medical clinic. We, therefore, believe these facts amply demonstrate that Solich’s injury arose out of his employment.

Solich further argues that the injury did not arise “in the course of employment” because the physical examination occurred at the Portes Center, where he was not in the performance of his duties and, because the physical was voluntary, he was not fulfilling his duties at the time. We believe that under the facts of this case, the alleged injury was sustained “in the course of employment.” The examination occurred in a clinic employed by U.S. Steel to conduct physicals for its employees. The examination was scheduled by U.S. Steel and took place during working hours. Further, U.S. Steel’s alleged negligence occurred when the company’s medical clinic physician failed to report the results of the 1975 X rays. The review of the X rays occurred during working hours on the company premises by a co-employee physician. We believe these facts are sufficient to prove that Solich’s injury occurred in the course of his employment since Solich was fulfilling his duties at the time of the injury.

We, therefore, find that the Soliches’ claims against U.S. Steel were barred by the exclusive-remedy provision of the Workers’ Compensation Act. It is therefore unnecessary for this court to address the other issues which were raised by U.S. Steel on appeal.

We next address Portes’ contention that the trial court erred in failing to dismiss the Soliches’ negligence claim against Portes based upon the medical malpractice statute of limitations. (Ill. Rev. Stat. 1983, ch. 110, par. 13—212.) We first summarize the pertinent facts applicable to this issue. Portes is an Illinois not-for-profit corporation. Originally, Portes primarily educated the general public on the detection and treatment of cancer. Having received additional outside funding, Portes began to offer screening examinations for cancer and, ultimately, Portes provided general screening physical examinations. The examination consisted of a physical, various blood tests, a test for blood in the stool, basic respiratory function tests and a chest X ray. However, Portes did not diagnose or treat illnesses. Portes employed 12 staff physicians and two registered nurses, all of whom were licensed by the State of Illinois. Additionally, Portes employed State-certified medical assistants and laboratory technicians.

Upon completion of the physical, Portes did not interpret the chest X rays, but rather sent them to a board-certified radiologist at Henrotin Hospital. The radiologist completed a report indicating whether the X ray was normal or abnormal. Portes then sent the results of the physical examination, including the chest X-ray interpretation, to U.S. Steel.

Portes now contends that since the Soliches’ suit was brought more than four years after the date of Solich’s physical, the claim should have been dismissed under the medical malpractice statute of limitations. The statute provides:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew *** but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death ***.” Ill. Rev. Stat. 1983, ch. 110, par. 13—212.

The parties agree that if the statute applies to Portes, the action would be barred because Solich’s chest X ray was taken in 1975 and the suit was brought in 1984, more than four years after the date of the act alleged to have been the cause of Solich’s injury.

Portes argues that it should have been protected under the statute. Solich argues that a not-for-profit corporation is not listed in the statute as one of the entities which is afforded the benefit of the statute. Solich further contends that Portes cannot be afforded the protection of the statute because it is not licensed under the Medical Corporation Act (Ill. Rev. Stat. 1991, ch. 32, par. 1 et seq.) and, thus, does not practice medicine or provide patient care.

Our supreme court has discussed the intent of the medical statute of limitations in Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 510 N.E.2d 883. The court noted that in light of the medical malpractice insurance problem, the legislature enacted the statute to ensure the continued availability of medical malpractice insurance to affected persons and institutions and to subsequently ensure the continuation of their health-care services. In Penkava, the court held that nurses were covered under the 1981 version of the statute despite the fact that they were not specifically named in the group of health-care providers who were covered. The court reasoned that it was inconceivable that the legislature intended to protect only physicians, dentists, and hospitals and leave nurses exposed to liability. The court stated that a hospital could only provide medical care through its medical personnel, which included nurses.

The statute has also been construed to apply to medical corporations. In Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783, the plaintiff’s estate sued a radiology group, a medical corporation, for its failure to properly evaluate and report the results of a brain scan which allegedly resulted in the plaintiff’s terminal brain cancer. The court held that the word “physician,” as used in the medical malpractice statute of limitations, includes corporations formed to practice medicine under the Medical Corporations Act. The court reasoned that the intent of the statute would be to afford the same protection to a group of physicians who were organized as a medical corporation as that afforded to a single physician.

We believe that Portes should also have been afforded the protection of the statute and thus the Soliches’ claim was barred by the four-year statute of limitations. As the above-mentioned cases explain, the intent of the statute is to afford protection to medical professionals. While Portes is not a medical corporation that is licensed under the Medical Corporation Act, the reasoning is the same. All of the Portes employees are medical professionals who are licensed to practice in this State. The fact that Portes is a not-for-profit corporation is not a relevant distinction. A not-for-profit corporation is licensed in this State and thus fulfills the statute’s requirement of being “duly licensed under the laws of this State.”

Further, the statute provides that the statute of limitations applies to actions “arising out of patient care.” Clearly, the Soliches’ suit falls under the penumbra of “patient care.” The essence of the Soliches’ claim is that Portes failed to report a clinically significant result, the finding of fibrosis in his 1975 chest X ray. The Soliches cannot claim that Portes had a duty to conclude that Solich’s X-ray finding of fibrosis was clinically significant and a duty to report the finding to him, and at the same time claim that Portes did not provide patient care. The evaluation of Solich’s chest X ray required the expertise of medical professionals, most likely the physicians employed by Portes. These physicians, much like the physicians who were organized into a medical corporation in Real v. Kim, were covered by the statute.

We therefore find that the trial court erred by failing to dismiss the Soliches’ suit against Portes as it was barred by the medical malpractice statute of limitations and we subsequently need not address Portes’ other contentions.

For all of the aforementioned reasons, we reverse the judgment of the trial court against both U.S. Steel and Portes.

Reversed.

JOHNSON, J., concurs.

JUSTICE McMORROW,

dissenting:

Because I am unable to agree with the majority’s holding with regard to Portes Cancer Center, I respectfully dissent. The majority determines that plaintiff’s negligence claim against Portes Cancer Center is governed by a four-year medical malpractice statute of repose that applies to actions against physicians, dentists, registered nurses, or hospitals. (Ill. Rev. Stat. 1983, ch. 110, par. 13—212.) However, by its plain terms, this statute does not apply to the Center, which is neither a physician, dentist, registered nurse, nor a hospital. The majority’s disposition effectively rewrites the statute to include an entity which the Illinois General Assembly did not intend to be governed by the legislation. I am unable to concur in the majority’s impermissible amendment, by judicial decision, of a clear and unambiguous provision enacted by our legislature.

The cardinal rule of statutory interpretation is to determine and give effect to the legislature’s intent according to the plain and unambiguous meaning of the language used in the statute. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194-95, 595 N.E.2d 561.) The role of the court is to interpret the statute, not to amend it. “A court is not free to rewrite legislation, or to ignore an express requirement contained in a statute” (People v. Palmer (1992), 148 Ill. 2d 70, 88, 592 N.E.2d 940), and the court may not modify the plain terms of a statute by the use of “subtle construction.” Palmer, 148 Ill. 2d at 85.

Based upon a statutory construction that gives effect to the plain terms of the provision, Portes Cancer Center does not fall within the limited scope of the medical malpractice statute of repose. The pertinent provision setting forth the medical malpractice statute of repose bars an action in tort that “arise[s] out of patient care” if the suit is not filed within four years after the date on which the allegedly tortious acts occurred. (Ill. Rev. Stat. 1983, ch. 110, par. 13—212.) This statute of repose is specifically designated to apply to suits brought “for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 110, par. 13—212.) By its express, clear, and unambiguous terms, the statute does not apply to other types of health care professionals that may also provide medical services. Since the Portes Cancer Center is neither a physician, dentist, nurse nor a hospital, it is not protected by the statute, and plaintiff’s claim against the Portes Cancer Center should not be barred.

In Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, the Illinois Supreme Court specifically endorsed and adopted a restrictive interpretation of the scope of the medical malpractice statute of repose, at issue in the case at bar. The court observed that the “General Assembly in responding to the medical malpractice insurance crisis drew the statute very narrowly and encompassed within the classification to whom the statute applied only those segments of the health-care providers most acutely affected by the crisis.” (79 Ill. 2d at 319.) The court noted that “there is a wide variance as to the classes of health care providers who are covered by the statutes” adopted in other States. (79 Ill. 2d at 310.) The supreme court further noted that the statute in Illinois “falls within the group which does not extend the protection of the statute to all classes of health-care providers who could be the subject of medical malpractice actions.” (79 Ill. 2d at 310.) The court specifically determined that “[protection is afforded by our statute only to physicians and hospitals.” (Emphasis in original.) 79 Ill. 2d at 310.

Subsequent to the supreme court’s decision in Anderson, the Illinois legislature enacted statutory amendments that extended the protection of the statute to nurses and dentists. (See Pub. Act 83—235, eff. Sept. 8, 1983 (registered nurse); Pub. Act 82—783, eff. July 13, 1982 (dentist).) However, although cognizant of other health care providers and on notice of the restricted interpretation given by our Illinois Supreme Court to the statute, our General Assembly has chosen not to further amend the statute to provide protection to additional classes, or providers such as Portes, within the health care field. When “a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions, despite the lack of any negative words of limitation. [Citations.]” (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 442, 593 N.E.2d 522.) Because the medical malpractice statute of repose specifies the particular health care providers to which it applies, and because the legislature had not seen fit to amend the statute to include additional health care providers beyond those already specified in the statute, it is reasonable to conclude that medical providers such as the Portes Cancer Center are not governed by the four-year statute of repose.

Notwithstanding the plain language of the statute and the history of its enactment and amendments by the legislature, the majority concludes that Portes Cancer Center should be governed by the statute. I cannot concur in this determination. It is not the proper role or function of this court, on review of the trial court’s judgment, to judicially amend the statute to include an entity that is not specified therein. Whether it would be more logical or fair to include all health care professionals, including the Center, within the scope of the statute is not a matter of judicial concern. Rather, it is a question that should be addressed to the Illinois General Assembly.

The statute at issue here represents “a reasonable attempt to remedy what the legislature perceived to be a medical malpractice insurance crisis.” (Anderson v. Wagner (1979), 79 Ill. 2d 295, 316, 402 N.E.2d 560.) “Whether the course [chosen by the legislature] was wise or the best means of accomplishing the result desired is a matter for legislative determination.” (Anderson, 79 Ill. 2d at 316.) Because the majority’s disposition is in clear conflict with the legislature’s intention in the current medical malpractice statute of repose, I cannot concur in the majority’s holding in the present case.

I also do not believe the majority’s decision is justified by Penkava v. Kasbohm, (1987), 117 Ill. 2d 149, 510 N.E.2d 883, or Real v. Kim, (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783. The nurses in Penkava were deemed to be included within the term “hospital” because the nurses were employed by the hospitals and were essential to the hospitals’ provision of medical care. (See Penkava, 117 Ill. 2d at 156-57.) In the present case, the Portes Cancer Center is not an employee of any physician or hospital, and there is nothing in the record before us to indicate that the Center is “essential” to a physician or hospital in the provision of medical services. Also, in Real the medical corporation was an entity licensed under the Medical Corporation Act to provide medical care. (See Real, 112 Ill. App. 3d at 436-37.) In the case at bar, the Portes Cancer Center is not licensed under the Medical Corporation Act. Moreover, as it appears from the evidence presented at trial, the Center did not provide medical care but merely arranged and coordinated tests and examinations, and forwarded the medical results, without interpretation, to the appropriate physicians. As the majority notes, Portes did not diagnose or treat illnesses. Portes was not a doctor, and Solich was not Portes’ patient.

The legislature had a rational basis for amending the statute to include nurses and dentists. (See Penkava, 117 Ill. 2d at 157.) In my opinion, the majority is in error when it reads into the statute a classification clearly not included and, importantly, for which there is no basis for inclusion.

For these reasons, I respectfully dissent.