author: JUSTICE QUETSCH

text:
    EDWARD YAVITZ EYE CENTER, LTD., Plaintiff-Appellee, v. JOSEPH EDGAR ALLEN, Defendant-Appellant.
    Second District
    No. 2—92—0290
    Opinion filed February 17,1993.

      Marcia B. Gevers, of Flossmoor, for appellant.
    Frank P. Maggio and Gregory A. Biegel, both of Maggio & Fox Professional Corporation, of Rockford, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Joseph Edgar Allen, M.D., appeals the trial court’s denial of his petition for sanctions against plaintiff, the Edward Yavitz Eye Center, Inc. The trial court granted defendant summary judgment in plaintiff’s suit to recover money allegedly due under an oral loan. However, the court declined to impose sanctions against plaintiff for filing what defendant asserts was a baseless and improper lawsuit (see 134 Ill. 2d R 137).

On appeal, defendant argues that the trial court’s denial of sanctions was an abuse of discretion. He maintains that plaintiff and its attorney filed the suit with the knowledge that the money they sought to recover from defendant was compensation and not a loan. Therefore, he concludes that plaintiff and its counsel brought the suit without fulfilling their duty to investigate whether the suit was well grounded in the facts and the law. Defendant argues further that the trial court erroneously considered as testimony certain remarks by plaintiff’s counsel.

Plaintiff counters that (1) the trial court’s denial of sanctions was not an abuse of discretion, as defendant failed to establish that plaintiff made false pleadings or that plaintiff made its pleadings without reasonable cause; (2) defendant was not entitled to sanctions as his counsel’s petition for fees was fatally defective in several respects; and (3) the trial court did not consider as testimony remarks by plaintiff’s counsel.

Plaintiff filed an original complaint and an amended complaint. Both sought recovery of the same sum of money, but proceeded on different theories. The original complaint, filed February 22, 1991, alleged the following. Plaintiff formerly employed defendant pursuant to a “Physician Services Agreement” (the agreement) executed June 11, 1989. After executing the agreement, the parties agreed to an amendment, effective January 1, 1990, which changed the manner of calculating defendant’s compensation.

Plaintiff’s original complaint further alleged that, prior to leaving plaintiff’s employ, defendant had received compensation in excess of that to which he was entitled under the agreement. Before the amendment took effect, defendant was guaranteed compensation of at least $60,500.02. As this exceeded 50% of his “net collections,” it was what defendant had earned for the period. However, plaintiff had paid defendant monthly advances totaling $90,529.98; thus, for the period ending December 31, 1989, defendant was overcompensated by $30,029.96; that for the period from January 1, 1990, through November 30, 1990, when defendant left plaintiff’s employ, defendant was entitled to 52% of his net collections, or $71,506.27. In this period, defendant received monthly advances totaling $69,466.91. Thus, for this period, defendant was undercompensated by $2,039.36. Overall, plaintiff was entitled to $27,990.60, the net amount by which defendant had been overcompensated. Plaintiff had demanded repayment, but defendant refused to repay the money.

On April 8, 1991, defendant moved to dismiss the suit, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), on the ground that paragraph 16 of the agreement provided that (quoting paragraph 16 as relevant here) “any dispute arising out of this contract, including, by way of example, disputes as to compensation, discharge, disability or working conditions, shall be subject to arbitration.” As there had yet been no arbitration of the matter forming the basis of the complaint, the complaint was not properly before the court.

On April 11, 1991, plaintiff moved to amend the complaint, alleging that it believed it could file an amended complaint that would set forth a cause of action that was not within the agreement’s arbitration provision. The motion stated that the amended complaint would still maintain that defendant owed plaintiff $27,990.60, but that it would set out facts alleging that the money defendant owed was outside the agreement’s compensation scheme and thus not subject to arbitration. Plaintiff received leave to file an amended complaint.

The amended complaint, filed April 26, 1991, alleged that, on or about January 21, 1990, plaintiff orally agreed to lend defendant $18,024.53 for a personal investment. Defendant accepted the loan. On information and belief, plaintiff alleged that defendant used the sum borrowed for investment purposes. Defendant had not paid the money back.

Defendant moved to dismiss the amended complaint (not specifying on what statute the motion was based), and to obtain sanctions, alleging that the factual basis of the amended complaint contradicted assertions in the original complaint. As to the merits of the amended complaint, defendant argued that the $18,024.53 in dispute was not a loan, but rather was part of the advances defendant received as compensation pursuant to the agreement. Attached to defendant’s motion to dismiss were (1) a copy of a computer printout prepared by plaintiff, detailing compensation defendant received between December 1989 and May 1990; and (2) plaintiff’s statement of defendant’s earnings for the period ending January 21, 1990. According to this statement, defendant in this period received no regular or overtime earnings, but received “other” earnings of $18,024.53. Plaintiff had withheld amounts for Federal income and social security taxes, and State taxes. The total distributed after withholding was $12,500.

On June 20, 1991, the court denied defendant’s motion to dismiss. On July 12, 1991, defendant answered the amended complaint. He admitted receiving the $18,024.53 advance.

In response to a subsequent notice to produce, plaintiff tendered, among other records, a statement of defendant’s gross pay for each of the two-week periods from January 7, 1990, through June 24, 1990. For the pay period ending January 7, 1990, defendant received $3,365.38. There are two entries for the pay period ending January 21, 1990; the first lists gross compensation of $4,807.70, and the second lists gross compensation of $18,024.53. For every succeeding pay period except the last one, the gross compensation is given as $4,807.70. For the last period, ending June 24, 1990, defendant’s gross compensation is “-$4,807.70.” Defendant’s gross compensation for the first half of 1990 totals $69,466.91.

On November 12, 1991, defendant moved for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005). He argued that plaintiff had not raised a genuine issue of fact as to whether the $18,024.53 paid, to defendant was a loan or wages. Defendant noted that plaintiff had admitted that the documents defendant had filed with his motion to dismiss demonstrated that (1) plaintiff had paid defendant gross compensation in this amount; and (2) plaintiff had withheld and sent to the appropriate Federal and State entities payments for Federal income tax, State tax, and social security taxes owed on this gross pay. Defendant also noted that plaintiff had conceded that no existing corporate minutes recorded any corporation loan to defendant.

Plaintiff responded with an affidavit of its president and sole shareholder, Dr. Edward Q. Yavitz. Dr. Yavitz stated that defendant requested certain funds from plaintiff so that he could take advantage of an investment opportunity. Plaintiff agreed to lend defendant the net sum of $12,500. At the time of the payment, plaintiff deemed this to be an oral loan transaction. At the time plaintiff provided defendant with the loan, in the form of gross compensation of $18,024.53, plaintiff was not required to tender that amount to defendant as wages, as defendant had not earned it for services rendered.

On January 9, 1992, the trial court granted defendant summary judgment. On January 27, 1992, defendant filed his petition for sanctions. (We note that although defendant requested sanctions pursuant to the now-repealed section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611), the parties agree that the proper basis for the request was Supreme Court Rule 137 (134 Ill. 2d R. 137).)

Defendant alleged that plaintiff had filed both complaints with actual or constructive knowledge that the complaints were not well grounded in the facts or in the law. Defendant alleged further that plaintiff did so to harass defendant and cause him expense, even though arbitration was available and required for disputes of this character.

Defendant’s petition stated that his attorney, Marcia B. Gevers, expended 13 hours, 55 minutes of office time, 5 hours of court time, and 20 hours of travel time plus costs in connection with the suit. Her customary hourly rates were $125 for office time, $175 for court time, and $50 for travel time. Without further elaboration, the petition stated that, in connection with the suit, defendant also owed his other attorneys fees of $2,401.98. Defendant requested an order requiring plaintiff or its attorneys to pay Gevers $3,645.58 in attorney fees and costs and to pay other attorney fees in the amount of $2,401.92.

On February 13, 1992, the court held a hearing on the petition. Neither party introduced evidence. Defendant’s attorney argued that plaintiff should be held liable for having filed complaints demonstratedly unwarranted by the facts or law and that both plaintiff and its counsel were liable for sanctions because they had signed the pleadings and thus had certified that, to the best of their knowledge, information and belief formed after reasonable inquiry, the complaints were well grounded in fact and warranted by existing law.

Plaintiff’s attorney argued that defendant knew full well that the money involved was a loan; the loan was couched as a special advance, but plaintiff’s counsel was “prepared to tell [the court] why that was done.” Plaintiff’s counsel requested that the court hold a full hearing on the petition so that plaintiff could introduce testimony from Dr. Yavitz and from plaintiff’s in-house comptroller that defendant requested the $12,500 loan and that the comptroller processed it as a special advance. When defendant’s counsel objected to these statements as inadmissible testimony regarding settlement negotiations, the trial judge responded that he would not consider the statements as evidence. Defendant’s counsel also argued that it would be inappropriate to hold a full hearing on the petition.

The trial judge denied the petition for sanctions, and defendant timely appealed.

Defendant argues that the trial court abused its discretion in refusing to award sanctions under Illinois Supreme Court Rule 137, which reads, as relevant:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading ***; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading *** is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading *** including a reasonable attorney fee.” 134 Ill. 2d R. 137.

Defendant argues that plaintiff and its counsel violated Rule 137 twice: first by filing a complaint when they were on notice that the complaint was preempted by the arbitration clause of the agreement; and, second, by filing an amended complaint which alleged without a reasonable basis that part of defendant’s compensation was actually a loan from plaintiff. Defendant notes the straightforward language of the arbitration clause and the undisputed fact that, for Federal and State tax purposes, the payments at issue were treated as compensation.

Noting that Rule 137 is to be construed narrowly, plaintiff responds that the amended complaint was not frivolous or improper merely because defendant received summary judgment. Plaintiff contends that the original complaint, having been withdrawn, is not properly under consideration on this appeal. Additionally, plaintiff maintains that defendant’s petition for attorney fees was insufficiently specific. Therefore, concludes plaintiff, the trial judge did not abuse his discretion in refusing to impose sanctions, particularly as defendant refused to agree to an evidentiary hearing on the issue of whether plaintiff’s conduct violated Rule 137.

We hold that plaintiff violated Rule 137 by filing the original complaint, which alleged a cause of action that was obviously preempted by the agreement’s arbitration clause (as plaintiff conceded). However, we hold that defendant failed to prove that plaintiff’s amended complaint, although ultimately dismissed, was the sort of pleading sanctionable under Rule 137. Therefore, the trial court abused its discretion in refusing to award defendant appropriate sanctions in connection with the filing of the first complaint only. We reverse in part and remand for a hearing on appropriate sanctions to be imposed on plaintiff for the expense flowing from its unreasonable actions in forcing defendant to respond to the original complaint. However, none of plaintiff’s conduct from the filing of the amended complaint on is sanctionable under Rule 137.

Supreme Court Rule 137 is the successor to the former section 2 — 611 of the Code of Civil Procedure (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611; Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 468). Cases construing section 2 — 611 are also relevant to the interpretation of Rule 137; the principal difference between section 2 — 611 and Rule 137 is that the former required sanctions for frivolous pleadings whereas, under the latter, whether to impose sanctions is entrusted to the trial court’s broad discretion. (In re Marriage of Irvine (1991), 215 Ill. App. 3d 629, 637.) Also, because Rule 137 is substantially similar to Rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.A. R. 11 (West 1992)), cases construing the Federal rule are appropriate guidance in the interpretation of Rule 137. Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334.

Rule 137 is penal; courts should construe it narrowly and invoke it only in those case falling strictly within its terms. (Yassin, 133 Ill. 2d at 467; Lewy, 211 Ill. App. 3d at 334; Couri v. Korn (1990), 202 Ill. App. 3d 848, 855.) The rule serves to penalize the litigant who pleads false or frivolous matters, or who brings suit without any basis in the law. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77.) A party making a filing in the trial court must make prefiling inquiries that are reasonable under the circumstances existing at the time the pleading is signed. (Couri, 202 Ill. App. 3d at 856.) A party seeking to recover attorney fees and expenses has the burden to show that his opponent has violated Rule 137; this requires more than merely demonstrating that the nonmoving party ultimately lost on the merits. Couri, 202 Ill. App. 3d at 855, 857.

The trial court erred in refusing to impose sanctions for the filing of the original complaint. In its original complaint, plaintiff brought its action as one to recover compensation that defendant allegedly received under the agreement. Even a cursory examination of the agreement itself would have revealed that the unambiguous language of the arbitration clause barred a suit based on the agreement itself. Thus, even if the original complaint’s allegations had merit, it is clear to us that plaintiff and its counsel failed to make objectively reasonable inquiries before filing the original complaint. With such inquiries, the original complaint as written would never have come before the trial court.

We do not believe, however, that the filing of the amended complaint, or any of the proceedings stemming therefrom, should be the subject of Rule 137 sanctions. We shall not disturb the trial court’s implicit finding that it was reasonable for plaintiff to proceed on the theory that defendant breached an oral contract for a loan for personal investment purposes (rather than for compensation for services performed under the agreement). Arguably, such a contract would be outside of the scope of the agreement as such and thus not subject to the requirement of arbitration.

Certain evidence developed at the trial level bolsters our conclusion. Plaintiff’s records show that it paid defendant $4,807.70 for each relevant two-week pay period — except for the period when it made the payment at issue. For this period, defendant received not only the standard amount of $4,807.70, but an additional $18,024.53, the amount of the alleged loan — approximately four times the standard biweekly amount. We shall not assume that defendant simply worked five times as hard as usual during that period. Thus, whether or not plaintiff could recover this money by suit, we will not disturb the trial court’s conclusion that it was not frivolous for plaintiff to proceed on the theory put forth in the amended complaint. Moreover, we note with interest that, although plaintiff requested an evidentiary hearing, defendant urged the court not to hold a hearing on his own fee petition. Generally, the court should hold a hearing on both the merits and the claimed amount of recovery in a Rule 137 proceeding, unless the relevant issues may be resolved by an examination of the record as it already stands. (Beno v. McNew (1989), 186 Ill. App. 3d 359, 366.) Although we believe that the frivolousness of the original complaint is evident from the record, we cannot say the same for the amended complaint.

Plaintiff makes two arguments for affirming the denial of the petition in its entirety. First, plaintiff argues that defendant’s fee petition was inadequate because it did not adequately allege or specify what fees defendant incurred as a result of any of plaintiff’s violations of Rule 137. (See Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 236.) However, we conclude that plaintiff has waived this issue by waiting until appellate review to attack the sufficiency of the petition. (See Yassin v. Certified Grocers of Illinois, Inc. (1988), 178 Ill. App. 3d 498, 511-12, aff’d in part & rev’d in part on other grounds (1990), 133 Ill. 2d 458.) Also, we reject plaintiff’s assertion that defendant was obligated to specify which allegations of each complaint were false and what expenses defendant incurred as the result of each baseless allegation. Such specificity is not required where, as here, the allegedly baseless allegations are the cornerstone of the entire lawsuit. Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 23-24.

Plaintiff argues second that it is not liable for sanctions under Rule 137 because it replaced the original complaint (which we have deemed in violation of Rule 137) with an amended complaint (which we have concluded may not be the subject of Rule 137 sanctions). Relying on Couri v. Korn (1990), 202 Ill. App. 3d 848, plaintiff maintains that (1) because the amended complaint superseded the original complaint, the original complaint was no longer a part of the record at the time of the Rule 137 petition; and (2) a trial court may not base Rule 137 sanctions on a pleading that is not part of the record. To the extent that Couri sets forth such a rule, we choose not to follow that holding.

In Couri, the defendant sought sanctions against the plaintiff’s attorney. She alleged that the plaintiff’s attorney (1) failed to sign the original complaint; (2) signed the amended complaint knowing that it contained false allegations and not realizing that one of the named defendants had died; and (3) continued with the litigation despite knowing that the complaint was not well grounded in fact or law.

Affirming the trial court’s denial of sanctions, the appellate court held that none of the defendant’s allegations established a violation of Rule 137. Apparently addressing the first of the allegations we have set forth above, the appellate court stated:

“The original complaint was superseded by the filing of the amended complaint, which was complete in itself and contained no references to the original complaint. (People v. Cross (1986), 144 Ill. App. 3d 409, 494 N.E.2d 703.) The original complaint is no longer part of the record, having been in effect abandoned or withdrawn. Robins v. Lasky (1984), 123 Ill. App. 3d 194, 462 N.E.2d 774.” Couri, 202 Ill. App. 3d at 856.

To the extent that Couri holds that the filing of a valid amended complaint insulates a plaintiff from any sanctions based on the filing of a frivolous or otherwise sanctionable complaint in the first instance, we cannot endorse this holding. To avoid saddling the judiciary and nonoffending litigants with the needless expenditure of time and money, a litigant who violates the rule should be held to account for the damage done by that violation even if the litigant later withdraws the offending pleading.

A contrary holding does not flow from the cases cited in Couri. These cases do not involve sanctions for improper pleadings and have no relevance in this context. In People v. Cross, the appellate court held simply that, where the State had abandoned its first amended complaint by filing an amended complaint, it could not challenge on appeal the trial court’s dismissal of its withdrawn complaint. (Cross, 144 Ill. App. 3d at 412.) Robins v. Lasky stands only for the well-established rule that, where an unverified complaint is superseded by a verified amended complaint, the defendant may use the allegations of the original complaint only as evidentiary admissions and not as judicial admissions. Robins, 123 Ill. App. 3d at 198-99.

In Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, the appellate court upheld the imposition of section 2 — 611 sanctions against the plaintiff and his attorney. The sanctions were based on untrue allegations in both the original and amended petitions. Rejecting the plaintiff’s argument that the trial court should not have assessed fees based on the period before the filing of the amended petition, the appellate court stated that “[t]he proposition that a section 2 — 611 award cannot be imposed when the pleadings have been amended does not apply where [the] plaintiff’s amended complaint renews allegations which he knew or reasonably should have known were false.” (Dayan, 126 Ill. App. 3d at 24-25.) We have no quarrel with the result in Dayan, but we find nothing in the case law creating even a qualified rule that an award pursuant to section 2 — 611 (or Rule 137) may not be based on a pleading that the offending party has subsequently withdrawn.

Federal case law upholds the imposition of Rule 11 sanctions based on shortcomings in a complaint which the plaintiff withdraws, even if the plaintiff replaces the offending pleading with a nonsanctionable complaint. We find the logic of these cases fully applicable to proceedings for sanctions pursuant to Rule 137.

In Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 110 L. Ed. 2d 359, 110 S. Ct. 2247, the Supreme Court held that a Federal district court retains jurisdiction to impose Rule 11 sanctions even after the plaintiff has obtained the voluntary dismissal of an improper complaint. The Court reasoned in part that its holding advanced Rule ll’s goal of deterring baseless actions. The Court explained that a baseless complaint needlessly burdens both the court and individuals, even where the plaintiff soon dismisses the action. A litigant who could escape Rule 11 sanctions merely by withdrawing a pleading would have no particular incentive to make reasonable prefiling inquiries about whether the pleading had any validity. Cooter & Gell, 496 U.S. at 397-98,110 L. Ed. 2d at 377,110 S. Ct. at 2457.

In Dennis v. Pan American World Airways, Inc. (E.D. N.Y. 1990), 746 F. Supp. 288, the plaintiff brought suit against her former employer for wrongful termination. The original complaint alleged causes of action under both Federal law and State law, even though a reasonable inquiry would have disclosed that the State causes of action were barred unequivocally by Federal law. After the defendant moved to dismiss all the claims, the plaintiff submitted an amended complaint that eliminated the invalid State causes of action. Citing Cooter & Gell, the court held that the plaintiff’s voluntary abandonment of the frivolous State causes of action did not insulate her or her counsel from sanctions based on the violation of Rule 11 embodied in the filing of those claims. Dennis, 746 F. Supp. at 291-92.

In Montgomery v. University of Chicago (N.D. Ill. 1990), 132 F.R.D. 200, the plaintiff brought a malpractice suit against Dr. Robert A. Del Pero, an ophthalmologist employed by the University of Chicago, along with the University of Chicago and certain of its agents. The plaintiff’s original pro se complaint named Dr. Del Pero as a defendant. The plaintiff amended his complaint, naming as a defendant not Dr. Del Pero but rather Dr. Eric Del Piero, a California ophthalmologist who had no connection whatever with the alleged malpractice. The district court struck Dr. Del Piero’s name from the complaint, granted the plaintiff leave to amend his complaint by reinstating Dr. Del Pero as a defendant, and imposed Rule 11 sanctions against the plaintiff. The court reasoned that the plaintiff’s carelessness had resulted in an unreasonable amendment of his complaint and that this amendment had caused needless expense to Dr. Del Piero and to the various defense attorneys who moved to ensure that Dr. Del Piero was dismissed from the action.

Here, defendant asserts that, at the hearing on the petition for sanctions, the trial judge erroneously considered as evidence certain statements by plaintiff’s attorney. The record shows that the trial judge did not consider these statements as evidence and that the trial judge did not consider any evidence that was not properly before the court.

We hold that the trial court abused its discretion in refusing to award Rule 137 sanctions for those expenses defendant incurred solely as the result of the original complaint, which was not well grounded in fact or law. We hold further that the trial court did not abuse its discretion in refusing to impose sanctions for the expenses defendant incurred after the filing of the amended complaint, which we cannot say was improper. We affirm the decision of the trial court in part, reverse in part, and remand for a hearing on the amount of sanctions to which defendant is entitled for expenses incurred as the result of the filing of the original complaint.

The judgment of the circuit court of Winnebago County is affirmed in part and reversed in part, and the cause is remanded.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH D. WILLIAMSON, Defendant-Appellant.
    Fourth District
    No. 4—91—0637
    Opinion filed February 11,1993.

      Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield, and Julia M. Gentile, of Petersburg, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

After a jury trial, defendant Ralph Williamson was convicted of possession of less than one gram of a substance containing cocaine and resisting a peace officer (Ill. Rev. Stat. 1989, ch. SGVe, par. 1402(b); ch. 38, par. 31 — 1) and was sentenced to four years of intensive probation supervision (IPS). Defendant appeals, contending the trial court erred in denying his motion to suppress physical evidence. We affirm in part, reverse in part and remand for a new trial on the charge of unlawful possession.

On August 15, 1990, at approximately 11 p.m., Officer John Kelly of the Danville police department responded to a call that a fight was in progress in the 100 block of South Kimball. Upon his arriving at the scene, Malinda Craft (formerly Barnes) told Kelly that defendant had been creating a disturbance and was possibly armed with a “weapon of some sort,” which was described as a “gun,” “knife,” or “something shiny.”

Kelly approached defendant and requested that defendant raise his arms. Defendant, who appeared intoxicated, was uncooperative and refused to comply. Kelly repeated his request and informed defendant that he wanted to search for a weapon. Defendant again refused and Kelly attempted to force defendant to raise one of his arms. Defendant pulled away and Kelly, thinking he was about to be struck, grabbed defendant. Both parties fell to the ground and struggled; several other officers arrived and subdued defendant. After defendant had been placed in custody, a search of his person did not reveal the alleged weapon.

Kelly then spoke with several witnesses, one of whom had only been identified as “Pasley.” Pasley told Kelly that defendant had earlier threatened to stab him (Pasley) with a knife. The record does not reflect whether Pasley ever saw a weapon. Kelly also spoke with Craft, who told him that defendant had arrived in a blue 1979 Chevrolet Chevette. Craft also informed Kelly that defendant had returned to his car between the time she saw him with the weapon and when the police had arrived. The car to which she referred was illegally parked in the street and was ordered towed.

Prior to the car being towed, Officer Steven Desecki of the department conducted an inventory of the car. At trial, Desecki testified that it was the policy of the department to inventory all vehicles which were to be towed. The inventorying officer was to search the vehicle and to note all items found on a tow-in report. Desecki testified that part of the search entailed the glove compartment wherein Desecki found a small, opaque prescription bottle. Desecki took the bottle out of the glove compartment, shook it, and heard a rattling noise that did not sound like pills. As the bottle was opaque, Desecki could not see the contents. Desecki opened the bottle and pulled out a razor blade, a cut-up piece of straw with a white, powdery residue which later was determined to be cocaine, and a “twisty thing.” Desecki returned the items to the bottle and gave the bottle to Kelly.

Defendant was charged with possession of a controlled substance and resisting a peace officer. On May 20, 1991, defendant filed a motion to suppress the prescription bottle and its contents. The trial court, after hearing the testimony of Kelly and -Desecki, denied defendant’s motion. Defendant contends, and we agree, the trial court erred in denying the motion to suppress.

On a motion to suppress evidence, defendant has the burden of establishing that the search and seizure were unreasonable. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 12(b); People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A trial court’s determination on a motion to suppress will not be overturned unless the decision of the trial court is manifestly erroneous. People v. Thomann (1990), 197 Ill. App. 3d 488, 496, 554 N.E.2d 748, 753; Neal, 109 Ill. 2d at 218, 486 N.E.2d at 899.

The State argues two justifications exist to support a search of both the vehicle and the prescription bottle contained therein: (1) the search was a valid inventory conducted pursuant to standardized procedures; and (2) Desecki had probable cause to search both the vehicle and the prescription bottle for the weapon allegedly possessed by defendant. Further, the State argues Desecki had probable cause to believe the prescription bottle contained a controlled substance.

The State first contends the search of both the vehicle and the prescription bottle was justified under an inventory rationale. Occasionally a police department’s community caretaking function will require it to tow and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of traffic. When vehicles are impounded, a police department will often inventory the contents of a vehicle; such an inventory serves several important interests: (1) the protection of an owner’s property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. (South Dakota v. Opperman (1976), 428 U.S. 364, 368-69, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3096-97; People v. Clark (1976), 65 Ill. 2d 169, 174, 357 N.E.2d 798, 800.) An inventory search does not violate the constitutional prohibition against unreasonable searches if it is conducted pursuant to standardized procedures. (Opperman, 428 U.S. at 375-76, 49 L. Ed. 2d at 1009, 96 S. Ct. at 3100.) Inventory searches of vehicles are not limited merely to the vehicle itself, but also include closed containers within a vehicle. (Colorado v. Bertine (1987), 479 U.S. 367, 374-75, 93 L. Ed. 2d 739, 747-48, 107 S. Ct. 738, 742-43.) As with an inventory of the vehicle itself, however, the inventory of closed containers must be conducted pursuant to standardized police procedures. Bertine, 479 U.S. at 374-75, 93 L. Ed. 2d at 747-48, 107 S. Ct. at 742-43.

In People v. Binder (1989), 180 Ill. App. 3d 624, 536 N.E.2d 218, this court implied that written evidence of standardized police procedures or policies may be necessary, as an evidentiary matter, to demonstrate the existence and scope of standardized procedures regarding inventory searches. In Binder, police searched defendant’s vehicle for evidence of the possession or consumption of alcohol. Defendant was arrested and his vehicle was ordered towed. At trial, an officer testified that it was the policy of the police department to inventory vehicles which were to be towed. Vehicles were not to be towed if the owner or driver were outside the vehicle or if a car were properly parked. Other testimony indicated that vehicles would be towed where the owner was arrested outside the vehicle. Although the search in Binder was upheld on a probable cause basis, this court, in dictum, noted that “producing a written directive detailing specific procedures would better reflect the type of standardized procedures which justify the inventory exception to the warrant requirement.” Binder, 180 Ill. App. 3d at 628, 536 N.E.2d at 221.

Here, the evidence of standardized procedures is scant. Kelly and Desecki testified that it was department policy to inventory any vehicles which were to be towed. Further, Desecki testified it was department policy to complete a “Tow-In Report” whenever a vehicle was impounded. However, the State failed to offer any written evidence of the inventory policies or procedures of the department. No evidence was offered to demonstrate under what circumstances a vehicle is to be towed or whether closed containers should be searched as a part of a general vehicle search. Further, no evidence was presented detailing the proper scope of such a search. We decline to uphold the validity of this search on an inventory basis absent written directives or policies which outline the procedures to be followed by law enforcement officers. Consideration of a written copy of the policies and procedures of a police department will enable courts to examine the scope of the procedures and determine whether a given officer has adhered to the carefully drafted policies of his or her department. In doing so, we do not mean to impugn the integrity of these officers or of police officers in general. However, the interests of justice will best be served if courts are able to compare an officer’s actions to the actual words of a carefully drafted procedure rather than the general statements often produced at trial.

Moreover, even if we found the evidence offered at trial to be sufficient to support a general inventory search of the vehicle, no evidence was presented regarding the department’s policies or procedures on the inventorying of closed containers. During an inventory search, closed containers may not be opened unless doing so is authorized by a standardized procedure. (People v. Lear (1991), 217 Ill. App. 3d 712, 714-15, 577 N.E.2d 826, 828; People v. Hundley (1992), 227 Ill. App. 3d 1056, 1062-63, 591 N.E.2d 903, 907.) Absent evidence of a departmental policy to inventory closed containers found during a general inventory search, we decline to infer such a policy from the general statements offered at the motion to suppress hearing. The State asks us to consider United States v. Wilson (7th Cir. 1991), 938 F.2d 785, wherein the court did not require the “magic words” “closed container” to be contained in the standardized procedures, but inferred a policy to open closed containers from other language. While there may be no requirement for “magic words,” we decline to infer such a policy absent clear intent as evidenced by the express language of the standardized procedures themselves.

When the driver or occupant of a vehicle is arrested, the police at the scene of the arrest may search the entire passenger compartment of the car and any container therein, as a search incident to a lawful arrest. (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) Belton does not apply, however, where the defendant was not in the vehicle prior to the arrest, as here. (People v. Kolody (1990), 200 Ill. App. 3d 130, 135-36, 558 N.E.2d 589, 594.) The State maintains Desecki’s search of the vehicle was valid because Desecki had probable cause to search the vehicle and prescription bottle for the weapon allegedly possessed by defendant. There is probable cause to conduct a warrantless search of an automobile when it is shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (People v. Clark (1982), 92 Ill. 2d 96, 100, 440 N.E.2d 869, 871; People v. Smith (1983), 95 Ill. 2d 412, 419, 447 N.E.2d 809, 811-12.) When officers have probable cause to search a vehicle, the scope of that search extends to any containers in the vehicle wherein there is probable cause to believe the contraband may be concealed. The scope of any such search is limited neither by the possibility that separate acts of entry or opening may be required to complete the search (United States v. Ross (1982), 456 U.S. 798, 820-21, 72 L. Ed. 2d 572, 591, 102 S. Ct. 2157, 2170-71; Smith, 95 Ill. 2d at 418, 447 N.E.2d at 811), nor by the nature of the container in which contraband is secreted; rather, it is defined by the object of the search and the places in which there is probable cause to believe it may be found. Ross, 456 U.S. at 824, 72 L. Ed. 2d at 593,102 S. Ct. at 2172.

Facts available to the police at the time of this search fully support the existence of probable cause to search the glove compartment of the vehicle for a weapon. Testimony indicated that shortly after Kelly arrived at the scene, he was informed defendant was armed with a “weapon of some sort.” Kelly then personally searched defendant for the weapon and found nothing. After defendant was placed in custody, Craft told Kelly that she had seen defendant return to his car after she had seen him with the weapon; and Pasley told Kelly that defendant had threatened to stab him. Given these facts and circumstances, the police had probable cause to believe defendant had a weapon and that the weapon might be in the vehicle.

However, the facts available to the officers at the time of the search did not give rise to probable cause to search the prescription bottle. The permissible boundaries of Desecki’s search only extended to those containers in which there was probable cause to believe the weapon might be concealed. (Ross, 456 U.S. at 824, 72 L. Ed. 2d at 593, 102 S. Ct. at 2172.) We fail to see how what Desecki described as “a regular prescription bottle” could contain a weapon the size of a gun or a knife. Absent any evidence that the weapon was of such an extraordinarily small size that it could fit inside a prescription bottle, the facts available at the time of the search would not justify a reasonable person in believing a gun or knife could be contained therein.

The State finally maintains that Desecki had probable cause to search the prescription bottle for a controlled substance because (1) drawing upon his law enforcement experience, he was aware that prescription bottles are often used to store drugs; (2) the prescription bottle did not bear the name of defendant; and (3) when Desecki shook the bottle, the sound emanating therefrom did not sound like common prescription pills. The State argues that these factors, when considered in aggregation, amount to probable cause to search the bottle for evidence of contraband.

Before considering whether these factors amount to probable cause, it is necessary to determine whether Desecki’s shaking of the bottle and reading the label thereon were a separate and distinct search which also must be supported by probable cause. In Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149, the United States Supreme Court held (1) the mere movement of an object could, for fourth amendment purposes, constitute a search; and (2) the search or seizure of an item in plain view must be supported by probable cause. In Hicks, a shot was fired through the floor of an apartment. Police suspected the shot emanated from defendant’s apartment and entered it to search for evidence associated with the shooter or the gun. While there, one of the officers noticed two sets of expensive stereo equipment which seemed out of place in the otherwise “squalid” apartment. The officer then read and recorded the serial numbers of the components, moving some of them in the process. Upon his discovering the components were stolen, the components were seized, and defendant was arrested and charged with theft. Defendant moved to suppress the evidence that had been seized. The Supreme Court held that the movement of some of the components to read and record their serial numbers constituted a search which must be supported by probable cause:

“Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of [defendant’s] privacy interest. [Citation.] But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of [defendant’s] privacy unjustified by the exigent circumstance that validated the entry.” Hicks, 480 U.S. at 325, 94 L. Ed. 2d at 354, 107 S. Ct. at 1152.

In the present case, Desecki’s shaking of the prescription bottle and reading of the label thereon constituted a search and must be supported by independent probable cause. Any contention that it was necessary to disturb, read, and shake the prescription bottle to search for the weapon is unconvincing. Therefore, it is necessary to determine whether the mere presence of a prescription bottle in a glove compartment constitutes probable cause to believe that evidence of criminal activity or contraband is contained therein, necessitating a further search. The State maintains Desecki was entitled to continue his search because the prescription bottle was in plain view and, to an officer of Desecki’s experience, its incriminating nature was immediately apparent.

Items in plain view are subject to a further search or seizure if (1) the initial intrusion which brings the police within plain view of the article is itself lawful; and (2) there is a nexus between the item sought to be searched or seized and criminal activity. (See Horton v. California (1990), 496 U.S. 128, 136, 110 L. Ed. 2d 112, 123, 110 S. Ct. 2301, 2308; People v. Harrell (1992), 226 Ill. App. 3d 866, 874, 589 N.E.2d 943, 948-49.) As we have stated earlier, the initial intrusion which brought the prescription bottle in plain view was itself lawful as Desecki had probable cause to search the glove compartment for the weapon allegedly possessed by defendant. To prove the nexus between the prescription bottle and criminal activity, the State must show that there was probable cause to believe the bottle contained evidence of criminal activity or contraband. See Hicks, 480 U.S. at 326-27, 94 L. Ed. 2d at 354-55, 107 S. Ct. at 1153-54.

The State likens this situation to the one encountered in Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, wherein defendant was stopped at a routine checkpoint when a police officer spotted a green, opaque party balloon, knotted near the top, drop from the hand of the driver. The officer also saw several plastic vials, a quantity of loose white powder, and an open bag of party balloons in the partially opened glove compartment. Additionally, the officer noticed a trace of powdery substance within the tied-off portion of the balloon. The officer seized the balloon, ordered the defendant out of the car and then conducted a search of the car, which revealed additional contraband. The defendant filed a motion to suppress the balloon and its contents, later determined to be heroin. The United States Supreme Court held that the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity. (Brown, 460 U.S. at 741-42, 75 L. Ed. 2d at 513-14, 103 S. Ct. at 1543.) Therefore, the State need only show that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or useful as evidence of a crime. (Brown, 460 U.S. at 742, 75 L. Ed. 2d at 514, 103 S. Ct. at 1543.) While the facts in Brown do tangentially reflect the facts here, we find two distinguishing characteristics: (1) the packaging in Brown (uninflated, tied-off balloon) was distinctive to the drug trade while a prescription bottle is capable of carrying numerous legitimate items; and (2) the officers in Brown had corroborating evidence not present here, i.e., that the balloons may have contained a controlled substance. We find the case of People v. Penny (1989), 188 Ill. App. 3d 499, 544 N.E.2d 1015, to be more applicable.

In Penny, defendant’s vehicle was stopped because its license plate sticker had expired. Upon encountering defendant, the attending officers noticed defendant’s hands were shaking. One of the officers looked inside the vehicle and saw “a package, approximately seven inches in diameter and four inches thick, wrapped in a brown opaque plastic material” on the floor of the car. (Penny, 188 Ill. App. 3d at 500, 544 N.E.2d at 1016.) The officer opened the car door and took out the package, which he described as “looking ‘like a kilo of cocaine’ and feeling ‘like a brick.’ ” (Penny, 188 Ill. App. 3d at 500, 544 N.E.2d at 1016.) The officer poked a hole in the top of the package and saw a white powder which was later determined to be cocaine. The appellate court upheld the trial court’s suppression order, stating: “[T]he package could have contained numerous legitimate items. There was nothing about the package itself or about the surrounding circumstances that suggested it contained contraband.” Penny, 188 Ill. App. 3d at 503, 544 N.E.2d at 1017.

Here, Desecki testified that, in his experience as a police officer, he had seen drugs (illegal) packaged in prescription bottles before. The State maintains that, to an officer of Desecki’s experience, the presence of the prescription bottle was clear evidence of criminal activity. We disagree. Nothing about a prescription bottle is so unique that it would immediately suggest criminal activity. (See State v. Meichel (La. 1974), 290 So. 2d 878, 880 (prescription bottle without prescription label in automobile did not constitute probable cause); State v. Baxter (Okla. Crim. App. 1974), 528 P.2d 347, 349 (police officer’s search of unlabeled Geritol bottle was “based upon the officer’s mere suspicion, rather than on probable cause, to believe that the bottle contained contraband”).) While there is a chance a prescription bottle may contain a controlled substance, it is equally, if not more, likely to contain a number of innocent objects such as a valid prescription, aspirin, thumbtacks or nothing at all. Probable cause requires more than simply having seen an item associated with criminal activity on an earlier occasion. As Desecki had no probable cause to read the label on the bottle or shake the bottle, the search should have terminated when he became aware that the weapon was not contained in the glove compartment.

For the foregoing reasons, the trial court erred in denying defendant’s motion to suppress. Defendant claims no error regarding his conviction for resisting a peace officer. Accordingly, we affirm defendant’s conviction for resisting a peace officer and reverse his conviction for possession of a controlled substance and remand for a new trial on that charge.

Affirmed in part, reversed in part, and remanded.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE WOODWARD

text:
    WAGNER CASTINGS COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Norbert Pierceall, Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—92—0065WC
    Opinion filed February 25,1993.

      Baird, McCarthy & Rowden, of Decatur (D. Douglas McCarthy, of counsel), for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Mark E. Jackson, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The claimant, Norbert Pierceall, appeals from an order of the circuit court of Macon County, reversing an award of benefits to him by the Illinois Industrial Commission (Commission) and against the employer, Wagner Castings Company. The issue on appeal is whether the decision of the Commission is against the manifest weight of the evidence.

At the arbitration hearing, claimant testified that he was 59 years of age and had worked for the employer from February 1964 until October 1, 1985. His last day at work was September 10, 1985. Initially, he worked as a laborer in the malleable foundry area. He described the noise in that area as constant from the molding machines and the vibrators on the hoppers. He did not wear any ear protection. In June 1964, he began working as a millwright in the maintenance department in the malleable foundry. His job consisted of maintaining, repairing and constructing all plant equipment and required him to work in all areas of the plant. Except for nine months in 1977 when he worked as a grinder in the ductile foundry, he stayed in the malleable foundry until 1980 when he was transferred to the ductile foundry. Claimant also hunted on a seasonal basis.

Claimant testified that during the period of time he was assigned to the malleable foundry he worked near an area called the “sprew chute” or “sprew balcony.” That area was located at the center of the malleable foundry. Workers would break the sprews from the castings with hammers, and the sprews would be thrown down chutes into hoppers and would then periodically be picked up to run through the system again. Claimant would work in the area where the hammers were used whenever the machinery broke down; he would be anywhere from 5 to 25 feet away from the hammers. Many times he was only five feet away. He described the noise level as a very loud din, consisting of the sounds of six hammers continually hammering on metal, two 300-horsepower motors and cleaning machinery. Depending on what needed repair, he could be in the area anywhere from a few minutes to four or five hours at a time. Between 1964 and 1980, there were times when he spent as much as a day or more in that area. He also worked many times within a 25-foot radius from the bottom of the chute. It was even louder there than up in the balcony. On an average, he spent less than an hour’s time there doing a repair.

Claimant further testified that he also repaired equipment in the reclaim grinders, salvage grinders and the snag grinders areas. While he would be repairing one of the reclaim grinders, another would be grinding approximately three feet away. A repair might take three days to a week to complete. In doing repairs in that area, he was within five or six feet of the grinder. A repair job in that area was usually less than a day because the machine was not used as much. In the snag grinder area, he worked within five or six feet of an operating grinder. A repair in that area usually lasted more than a day because machines had to almost be rebuilt, taking at least 21/a to 3 days to complete.

Claimant also testified that he also did repairs near the cooling shaker in the heat treat department. Castings would be brought from nearby ovens and dumped into the two cooling shakers, which would shake down the castings until they were on one level. Once castings were dropped into the shakers, one could not have a conversation with someone standing a foot away. When the blowers were on, it was worse. At times, claimant had to work within two feet of a shaker while it was in operation. The work would often take more than one day. Sometimes he would spend months rebuilding an oven which was within five feet of the shaker. He also worked near the type-flask molding machines. The sound created was that of metal hitting metal and created a very loud jolting noise. Often claimant would have to “jolt” the machine himself to make sure it was operating properly. There was a three-foot area between machines. Often he would be repairing one machine while another one was in operation. Usually, a repair took only a few hours.

Claimant further testified that prior to 1975 he wore no ear protection. In 1975, the employer provided Swedish cotton which he would use in areas where there was a lot of noise. It was not mandatory to wear the Swedish cotton. Later, the company replaced the Swedish cotton with sponge-rubber plugs. Claimant could not recall the year in which this occurred. He did not recall anyone instructing him on how to use the sponge-rubber plugs, but there were instructions on the package they came in. Claimant could not recall what year the sponge-rubber plugs became mandatory, but he recalled using the sponge-rubber plugs in 1979 and 1980. He was disciplined once in 1982 for not wearing ear protection.

Claimant further testified that during 1977 he worked as a grinder inspector in the ductile foundry. The noise source was the same from the grinders in the ductile foundry as from the grinders in the malleable foundry. He worked around the grinders eight hours a day. He wore the Swedish-cotton ear protection.

Claimant further testified that from 1980 to 1985 he worked as a millwright out of the ductile maintenance shop located in the center of the ductile foundry. The shop was open at the top. The grinders were 200 feet away; however, close by were automatic molding machines, and in one corner of the maintenance shop were the sand mullers. The mullers were run by a 300-horsepower motor and never shut down so the noise was continuous. Claimant worked within 20 feet of the sand mullers approximately eight hours a day. According to claimant, you had to raise your voice above any sort of conversation level to be heard. Occasionally, he would leave the ductile maintenance area and work near a sprew table in the ductile foundry. Claimant explained that while the process is the same, the iron in the ductile foundry is tougher than in the malleable foundry and, as a result, it takes more strikes with the hammer to break the iron but produces the same type of noise. However, because the malleable foundry was a confined area, the noise was louder there.

Claimant further testified that when he first was assigned to the ductile maintenance shop, he was not required to wear ear protection in the shop itself. By 1983, ear protection was required in all areas of the plant. Prior to 1983, claimant wore ear protection if he was in a loud-noise area, including the maintenance shop. On occasion while he was doing repairs, he would have to remove the ear protection in order to listen to the machine, and other machines might be operating at the same time. At most he would have the earplugs out for 10 to 15 minutes.

Claimant further testified that prior to 1980, he had not experienced any problems with his hearing. During the 1980’s, he began having difficulty distinguishing words and numbers. He also noticed ringing sounds in both ears. Until 1985, his hearing problems seemed to get worse. Since 1985, there has been no change in his hearing.

On cross-examination, claimant testified that, while he was assigned to the malleable maintenance shop, most of his work assignments took him outside of the shop. He would wear ear protection when available, but he did not recall ear protection being available as early as 1970. While he was assigned to the ductile maintenance shop, he spent most of his time outside of the shop, except for the last year. According to claimant, the earplugs did not lessen the intensity of the noise but softened it. The sponge earplugs were better than the Swedish cotton.

Claimant testified further that between October 1977 and August 1980 he worked the third shift in the malleable foundry, during which period the molding department was shut down although the heat treatment, melt department and core room still operated. When the castings were being shaken, it was not a continuous noise as the cycle lasted 10 minutes, but the fans continued to blow. Once Swedish cotton was available, he wore it when the shakers were operating and in other noisy areas. However, Swedish cotton was not always available; sometimes the plant ran out of it.

On redirect examination, claimant testified that the Swedish cotton did not do much good at all. The sponge-rubber plugs had a little better effect at actually reducing the amount of noise. There were three 10-minute cycles per hour on the shaker machines. There were four to six large fans which were never shut off and which made a sound similar to that of a small jet engine. Claimant could not recall when he began using the sponge-rubber earplugs.

On re-cross-examination, claimant testified that after he was disciplined for not wearing ear protection, he wore ear protection all the time.

The parties stipulated that if called to testify, Lee Bond, the employer’s safety director since 1982, would testify that he made noise level studies in 1983, 1985 and 1986 in both the malleable and ductile foundries and that for any area not included on the list (which was admitted into evidence), such as the maintenance areas in both the malleable and ductile foundries, the decibel level was 85 or less. He would further testify that Swedish-cotton ear protection was made available in 1970 and that the rule of thumb in the industry is that Swedish cotton has a noise-reduction level of 20 to 23 decibels.

The parties also stipulated that, if called to testify, Velma Madison, the employer’s director of first aid since 1982, would testify that since 1982 earplugs have been mandatory and that the sponge earplugs have been made available to the employees since 1982. She would testify that she instructs the employees how to use them and that the employees are given annual audiograms. She would also testify that since 1982, she has been giving audiograms in soundproof booths with quieters and would vouch for their reliability. Finally, she would testify that the manufacturer’s noise-reduction level is 35 decibels for the sponge earplugs.

The parties further stipulated that, if called to testify, Herschel Upton and William Burgess, two millwright maintenance men who had worked for the employer for a significant period of time, would testify that they were not told how to wear the earplugs.

Dr. Steven Mark Sobol, an otolaryngologist (medical and surgical treatment of the head and neck including the ears, nose and throat), testified that he first examined claimant on September 10, 1986. Claimant told him he felt he had experienced a hearing loss and that it was possibly related to industrial noise exposure. The physical examination revealed no sign of any external auditory or middle nerve problem or any evidence of infectious disease. An audiologic study of claimant’s hearing was conducted on the same day. An audiogram is a study done which tests the ability of an individual to hear pure tones at various frequencies in increments of 500 hertz. The hearing levels are recorded in decibels, the traditional unit that a hearing level is measured in, and a graph is then made. In addition, a speech study consisting of two types is conducted: one using words that require no discrimination of speech, only the simple ability to correlate with pure tones, and the other, an ability to perform a task in which speech discrimination is measured as a percentage of the number of words offered that are pronounced correctly by the individual being tested.

Dr. Sobol testified further that claimant’s audiometric study showed that he had a typical high, down-sloping, high-pitched or high-frequency sensorineural hearing loss which was unequivocally a problem in the inner ear itself or in the nerve of hearing or both. Based upon the speech discrimination study, it was somewhere in the inner ear rather than the nerve. Since this pattern is most frequently seen in a noise-induced situation and since claimant informed him that he had worked in a foundry for several years, Dr. Sobol recommended that claimant obtain his previous audiometric studies to determine if the loss of hearing was a progressive one or was based on past events.

Dr. Sobol testified further that he again saw claimant on May 18, 1988. Another audiometric study was performed. While there was some variation at certain frequencies from the test in 1986, Dr. Sobol explained that patients perform within 5 to 15 decibels on any given date, in any given frequency. Comparing the two studies, claimant was identical at the 250-hertz level with a slight improvement at the 500-hertz level. At the 8,000-hertz level, in 1986 it was 55 decibels for the right ear and 70 for the left ear, while in 1988 it was 70 decibels for the right ear and 80 decibels for the left ear. Dr. Sobol noted that some of the differences might be due to the testing artifact and that the 8,000 level was the most unreliable for being able to repeat the results consistently. Claimant had also improved in the speech discrimination portion of the test. Otherwise, the test results between the two years were the same.

Dr. Sobol was then asked a hypothetical question in which he was asked to assume the following information: that the man in question had the same personal history and physical characteristics as the claimant; that he used firearms seasonally and had no known hearing problems; that he worked for the employer for approximately 20 years during which time he was exposed to industrial noise in excess of the levels and time required for noise exposure under the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.); that since leaving the employer, he has not been exposed to those continual levels of noise but has continued to use firearms to hunt on a seasonal basis; and that between 1964 and 1971 he used no ear protection, between 1971 and 1981, he occasionally used a cotton-type earplug and from 1981 until he left the employer occasionally used a sponge-type earplug. Dr. Sobol was also asked to consider the results of the audiograms performed by the employer between 1971 and 1984, as well as the results of his own examination and testing of the claimant.

Based upon the audiograms taken both by the employer and his own office, Dr. Sobol opined that the pattern of hearing loss was most consistent with an acoustic trauma or a noise-induced type hearing loss as the primary causative factor in claimant’s case. Other possible causative factors included an age-related hearing loss known as presbycusis, which is almost always a down-sloping sensorineural, more high-frequency base hearing loss. The onset of presbycusis is triggered by a combination of hereditary and limitedly environmental factors, which are quite unpredictable. If, in fact, claimant’s hearing loss was a presbycusis-caused one, there should have been a further drop in his hearing between the audiometric studies done in 1986 and 1988. That the audiogram done in 1988 showed no significant loss and that the claimant had not had any significant noise exposure other than from the occasional hunting that he did supported the likelihood that the factors that were contributing to his pattern of hearing loss had been eliminated. Claimant did not have the yearly progressive loss based upon presbycusis being an aging process. According to Dr. Sobol, claimant’s condition was a permanent one.

On cross-examination, Dr. Sobol testified that based upon his review of claimant’s audiograms performed for the employer between 1971 and 1984, claimant had a substantial sensorineural hearing loss in the early 1970’s and that his hearing loss was only slightly worse in 1986. On an average, in the 1,000, 2,000 and 3,000 frequencies, one might expect to have a loss of one to two decibels per year after a certain age in a person with presbycusis. While he agreed that some of the deterioration could be attributed to the aging process, he also stated that between the ages of 42 and 55 you might not lose any hearing because of presbycusis. In claimant’s case, while it was difficult to determine how much of his hearing loss could be attributed unequivocally to noise trauma versus aging and/or hereditary/aging process, Dr. Sobol stated that there was enough evidence to say that there was an acoustic-trauma phenomenon present.

Dr. Sobol testified further that as measured by the audiogram performed in 1986 claimant’s average hearing loss based upon the 1,000, 2,000 and 3,000 frequencies showed a 462/s-decibel hearing loss in the left ear and a 40-decibel loss in the right ear. Based upon the audiogram performed in 1988, claimant showed a loss of between three and four decibels in each ear between 1986 and 1988. Dr. Sobol agreed that for those frequences, between the period from the early 1970’s to 1986, claimant’s hearing loss was approximately a two-decibel loss per year. While he agreed that the type of slope seen on claimant’s audiograms performed in 1986 and 1988 was consistent with a presbycusis-type hearing loss, as well as a noise-induced hearing loss, it was not a typical presbycusis loss as there would not be the flattening in the lower frequencies in classic presbycusis as was seen in claimant’s case. According to Dr. Sobol, whether an initial noise-induced hearing loss made a person more susceptible to further deterioration because of presbycusis has never been documented.

On redirect examination, Dr. Sobol testified that the differing results from the audiograms, particularly those done in 1986 and 1988, could be attributed to the testing variables. Often the difference is as much as between 5 and 10 decibels. He would not vouch for the accuracy of the audiograms performed at the employer because of the number of different people who performed them, and they were done at different times of the day and in an environment that was not controlled. According to Dr. Sobol, as a person gets older, he tends to lose hearing slightly more rapidly.

Also admitted into evidence was Dr. Sobol’s report of October 15, 1987. Based upon the audiometric studies on claimant done for the employer, Dr. Sobol noted that from 1972 through 1976, claimant’s three-frequency-average hearing loss was approximately 30 decibels; from 1977 to 1982, the average was between 40 and 55 decibels; and between 1982 and 1984 between 55 and 60 decibels. He also noted that claimant’s high-frequency range deteriorated slightly from 1972 through 1984. Dr. Sobol concluded as follows:

“Based upon [claimant’s] history of occupational noise exposure in a range that would certainly qualify sufficient to cause noise[-]induced hearing loss, it is reasonable to assume that some of his high frequency hearing loss has been nurtured along by the continued noise exposure. Whether it was a direct cause of the hearing loss that we see is yet another matter and is certainly difficult to say. Certainly he had a high frequency hearing loss as far back as 1972 and, in fact, according to our measurements in the office, that loss is only slightly worse now that [sic] it was back then. He has aged some 15 years during that period of time and this in and of itself could account for some deterioration in the hearing.”

Dr. Sobol concluded that claimant’s condition was caused by a combination of presbycusis and occupationally related noise-induced hearing loss. However, it would be impossible to separate out the magnitude that each cause contributed.

A study done by Occupational Safety and Health Administration (OSHA) in 1976 was admitted into evidence. The study showed that the cooling shaker in the malleable foundry produced noise levels between 115 and 120 decibels while the castings were being cooled. When the castings were dumped from the shaker into the hoppers, the noise levels were between 110 and 112 decibels. The machine produced 95 decibels of noise when it was running without cooling castings. Also admitted into evidence were studies in 1983 and 1985 done by the employer which showed noise in the sprew table area of the ductile foundry to be at 103.6 (west machine) and 104.9 (east machine) decibels. The noise in the disamatic area on those two occasions registered at 98.5 and 98.9 decibels. The noise level in the snag grinder area measured 103.3 decibels in 1983 and 1985.

The arbitrator denied benefits, finding that claimant had failed to prove that he was exposed to noise levels as set forth in the Act. The arbitrator also found that the last day of exposure was September 27, 1982, and that since claimant’s application for claim was not filed until May 23, 1986, more than three years after the date of last exposure, his claim was barred by the statute of limitations (Ill. Rev. Stat. 1991, ch. 48, par. 172.36(f)). The Commission reversed the arbitrator, finding that claimant was exposed to noise levels over 90 decibels for extended periods between 1975 and 1985. Based upon the findings and opinion of Dr. Sobol, the Commission further found that a causal relationship existed between claimant’s hearing loss and his exposure to noise at work. The Commission also found that claimant’s last day of exposure was his last day of work, namely, September 10, 1985, and that therefore his claim was timely filed. Based upon a comparison of the audiograms taken by the employer in 1974 and 1984 and allowing the employer a credit of 1.66 decibels for pre-1975 hearing loss to the claimant’s right ear, the Commission determined that claimant had sustained a hearing loss of 57.6% in the left ear and 36.4% in the right ear.

On review, the circuit court set aside the decision of the Commission as against the manifest weight of the evidence. The court specifically found that the record failed to show a causal connection between claimant’s hearing loss and his exposure to noise at the workplace, since the record showed that claimant wore hearing-loss protection continually from the date of disciplinary action against him on September 24, 1982, more than three years before the filing of the claim for benefits. This appeal followed.

At the outset, we reject the employer’s request that we apply an “extra degree of scrutiny” to the decision of the Commission in this case because the Commission reversed the decision of the arbitrator without taking any new evidence. Recently, in Komatsu Dresser Co. v. Industrial Comm’n (1992), 235 Ill. App. 3d 779, 788-89, 601 N.E.2d 1339, 1345-46, this court confirmed that it had repudiated the statement found in both Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379, and Orkin Exterminating Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753, 526 N.E.2d 861, that a court of review is required to give “extra scrutiny” to a Commission’s decision overturning an arbitrator’s decision without considering additional evidence. (See Dillon v. Industrial Comm’n (1990), 195 Ill. App. 3d 599, 552 N.E.2d 1082.) Regardless of whether the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. Dillon, 195 Ill. App. 3d at 607, 552 N.E.2d at 1087.

It is well settled that it is a function of the Commission to determine whether there is a causal connection between a claimant’s injuries and his employment. (Caterpillar Tractor Co. v. Industrial Comm’n (1984), 124 Ill. App. 3d 650, 653, 464 N.E.2d 1097, 1099.) In making this determination, it is solely within the province of the Commission to judge the credibility of the witnesses, draw reasonable inferences from the testimony and determine the weight the evidence is to be given. (Caterpillar, 124 Ill. App. 3d at 653, 464 N.E.2d at 1099.) The fact that this court or the circuit court might have drawn other inferences from the evidence is not relevant, since a reviewing court will not disregard or reject permissible inferences drawn by the Commission nor will it substitute its own judgment for that of the Commission unless its findings are against the manifest weight of the evidence. (Caterpillar, 124 Ill. App. 3d at 653, 464 N.E.2d at 1099.) The manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence, and in order for a finding to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276, 1281.

Section 7(f) of the Act provides in pertinent part as follows:

“(f) No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following:
Sound Level DBA
Slow Response Hours Per Day
90 8
92 6
95 4
97 3
100 2
102 IV2
105 1
110 Vz
115 V4.”
(Ill. Rev. Stat. 1985, ch. 48, par. 172.42(f).)

The Act further provides that the employer is not liable for any hearing loss on or prior to July 1, 1975. Ill. Rev. Stat. 1985, ch. 48, par. 172.42(d).

In the record before us, the employer has conceded that, during his employment tenure, claimant was exposed to sound levels in excess of the statutory limits of section 7(f) of the Act. However, the employer maintains that the use of ear protection such as the Swedish cotton and the sponge earplugs by the claimant since 1975 brought the sound levels to below the 90-decibel threshold necessary for proving exposure under the statute. The employer points out that for most of his employment claimant was headquartered in the maintenance departments of both the malleable and the ductile foundries where the decibel levels were 85; that claimant offered no evidence of how often or how long he worked by a given machine; that claimant wore ear protection every time he worked in a noisy area of the plant; and that following disciplinary action taken against him in 1982, he always wore ear protection.

The record before us supports the conclusion that claimant was exposed to noise levels in excess of the statutory limits. In addition to the employer’s concession that the noise levels in the plant exceeded the statutory levels, claimant testified as to the areas he worked in, the types of machines he was called upon to repair, as well as an estimate of how long repairs usually took, and he was able to describe the kinds of noise levels he was exposed to in the various areas. While the noise level in the maintenance areas was measured at 85 decibels, except for the last year of his employment, most of his assignments took him outside the maintenance departments.

We must now address the issue of the effectiveness of the hearing protection provided by the employer. The employer points to the stipulation by the parties that if called to testify Lee Bond would testify that Swedish-cotton ear protection had been made available to the employees since 1970 and that it had a noise-reduction level of 20 to 23 decibels, and Velma Madison would testify that since 1982 sponge earplugs have been mandatory in all areas of the plant and that the manufacturer’s noise-reduction estimate is 35 decibels for sponge earplugs. On the other hand, the claimant points to the OSHA instruction manual, which was admitted into evidence and which analyzed how to evaluate various items of hearing protection. The formula used by OSHA required that manufacturer’s rating be reduced by seven and the result be divided by two. The OSHA report also pointed out that laboratory results as to the level of effectiveness of ear protection was seldom achieved in the workplace.

According to claimant, between 1975 and 1979, he used Swedish cotton when it was available and when he was working in the noisy areas of the malleable foundry. Using the OSHA formula, the Swedish cotton reduced the noise level by only 7.25 decibels. The employer concedes that the noise levels in the malleable foundry ranged from 90 to 104 outside the maintenance area. Although the sound levels were higher in the molding room (up to 115 decibels), for the most part that area was shut down while claimant was working in that area.

Between 1979 and 1985, claimant used sponge-rubber earplugs. Using the same formula, the sponge-rubber plugs reduced the noise levels by 14 decibels. Although in 1980 he began working in the ductile foundry, he was again exposed to the noise from the grinders and the sprew chutes. The employer’s noise studies done in 1983 and 1985 showed noise levels of 103.6 (west machine) and 104.9 (east machine) decibels. The noise level in the snag grinder area (malleable foundry) measured 103.3 decibels in 1983 and 1986. Although the noise level in the grinder area of the ductile foundry measured only 94.1 decibels in 1983 and 1985, claimant testified that the sound level was the same in the grinder areas of both foundries.

In addition to the above, claimant testified that he often had to remove whatever ear protection he was wearing in order to listen to the machines he was repairing. Whether he continued this practice after disciplinary action was taken against him in 1982 is unclear from his testimony. In any event, claimant also testified that the use of ear protection “softened” the sound but not the intensity. Further, testimony from Velma Madison that the employees were instructed on the proper use of ear protection was contradicted by the testimony of claimant and two other employees.

In United States Steel Corp. v. Industrial Comm’n (1985), 132 Ill. App. 3d 101, 106, 477 N.E.2d 237, 240, this court held that it was proper to infer that an employer would not have given an employee ear protection if it did not serve the purpose indicated, that is, to eliminate excessive noise and that because the employee began to use it on a specific date the Commission properly found that date to be the date of last exposure. In John Deere Plow & Planter Works of Deere & Co. v. Industrial Comm’n (1988), 168 Ill. App. 3d 1096, 523 N.E.2d 386, the employer, relying on United States Steel Corp., argued that an employee could not be exposed to excessive noise once he began wearing ear protection. This court explained that the date when ear protection is furnished cannot always be reconciled with the possibility that the furnished ear protection may be inadequate. John Deere Plow & Planter Works of Deere & Co., 168 Ill. App. 3d at 1100, 523 N.E.2d at 388.

Given the decibel levels in the various areas that claimant worked and the OSHA formula applied to those decibel levels, together with claimant’s testimony that the ear-protection devices furnished softened the sound but not the intensity of the noise, and that, at least up to 1982, he often removed the ear protection even in noisy areas of the plant to listen to the machines, there is some evidence in the record from which the inference that the ear protection furnished by the employer was inadequate could be drawn. We therefore conclude that, even in light of the evidence of the use of ear protection, the Commission’s determination that claimant was exposed to sound levels in excess of those allowed by the statute was not against the manifest weight of the evidence.

We also find that there was sufficient support in the record for the Commission’s finding that there was a causal connection between claimant’s hearing loss and his exposure to excessive noise at work. The employer argues that according to Dr. Sobol, claimant’s age could in and of itself account for claimant’s high-frequency hearing loss; that claimant’s average decibel hearing loss at the three frequency levels was about two decibels per year; and that claimant had had a one- to two-decibel hearing loss in each year at the three frequency levels which would be consistent with an age-related hearing loss. In fact what Dr. Sobol did conclude was that claimant’s hearing loss was a combination of presbycusis and occupationally related noise-induced hearing loss. Moreover, according to Dr. Sobol’s report, as well as his deposition testimony, claimant’s hearing loss got progressively worse until he left his employment, following which claimant experienced no significant hearing loss. A claimant need not prove his employment was the sole causative factor, only that it was a causative factor in the resulting injury. (Johns-Manville Corp. v. Industrial Comm’n (1975), 60 Ill. 2d 221, 226, 326 N.E.2d 389, 391.) The employer’s argument that there was sufficient evidence to support the findings of the arbitrator and the circuit court misses the point. It is the Commission’s decision which must be focused on, and so long as that decision is not against the manifest weight of the evidence, it is that decision that will be upheld regardless of whether a contrary decision by the arbitrator also finds support in the record.

Dr. Sobol’s testimony and report also support the Commission’s finding that claimant’s last day of exposure was September 10, 1985, his last day of work, rather than September 27, 1982, the date claimant began to consistently wear ear protection. As noted above, claimant’s hearing deteriorated between 1972 and 1984, worse between 1982 and 1984. Thus, even during the period of continuous use of the ear protection, claimant’s hearing loss was continuing. In his deposition testimony, Dr. Sobol explained that if claimant’s hearing loss was a typical presbycusis loss, there would not be the flattening in the lower frequencies shown by the graph of claimant’s hearing loss. There was conflicting testimony as to whether the employees were instructed on the proper use of the ear protection. Claimant testified that the sponge-rubber plugs worked better than the Swedish cotton in that they softened the noise to a certain extent. He still could not hear any conversation with or without the plugs while he was working around the machines. As we pointed out in John Deere Plow & Planter Works of Deere & Co., it is the province of the Commission to infer whether the presence of ear protection had an effect upon the employee’s subsequent loss of hearing. (John Deere Plow & Planter Works of Deere & Co., 168 Ill. App. 3d at 1100, 523 N.E.2d at 388.) We cannot say that the Commission’s conclusion that the claimant’s last day of exposure was September 10, 1985, was against the manifest weight of the evidence.

Finally, the employer contends that the Commission’s determination of permanent partial disability was erroneous in that the Commission failed to follow the statutory requirements for determining such disability. Section 7(c) of the Act provides as follows:

“In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100 percent which is reached at 85 decibels.” (Ill. Rev. Stat. 1985, ch. 48, par. 172.42(c).)

The employer argues that the Commission should have used the average of Dr. Sobol’s 1986 audiometric findings of a loss of 46.66 in the left ear and 40 decibels in the right ear, rather than those of the employer’s 1984 findings of a loss of 61.66 decibels in the left ear and 51.66 in the right ear, because Dr. Sobol’s 1986 findings were the “lowest measured losses.”

Our research has revealed no cases that address this specific question. We note, however, that the employer does not argue that the Commission should have used Dr. Sobol’s 1988 findings because Dr. Sobol attributed the loss of hearing between 1986 and 1988 to the aging process. In calculating the amount of permanence, the Commission used a comparison of the claimant’s audiograms taken by the employer in 1974 and 1984 and applied the statutory formula. Allowing the employer a credit of 1.66 decibels for claimant’s pre-1975 hearing loss, the Commission found that claimant had sustained a 57.6% hearing loss in the left ear and 36.4% in the right ear. According to the employer, if Dr. Sobol’s findings had been used, the percentage of permanent loss in claimant’s left ear would be 30.32% and in the right ear 18.2%.

The statute does not provide a time frame for the resolving of which of the tests should be included in order to determine which is the lowest measured loss of hearing. Both the employer’s tests, as well as those of Dr. Sobol, were admitted into evidence and were before the Commission. At first the differing results — given the short period of time between them — are somewhat disconcerting, considering Dr. Sobol’s testimony that once claimant left his employment, he suffered no significant hearing loss. However, Dr. Sobol also stated that he would not vouch for the accuracy of the employer’s tests because of the lack of control over the testing variables in those tests, but that he would vouch for the accuracy of the tests conducted in his office. Given the plain language of the statute, we agree with the employer that the Commission erred in using the employer’s findings as to claimant’s hearing loss rather than those of Dr. Sobol in 1986.

Based upon all of the foregoing, we conclude that the record in this cause supports the Commission’s decision that the claim for benefits in this cause was not barred by the statute of limitations; that claimant was exposed to noise levels in excess of the statutory levels and that there was a causal connection between claimant’s employment and his hearing loss. Therefore, the Commission’s decision on these issues was not against the manifest weight of the evidence. We further conclude, however, that the Commission did err in failing to use Dr. Sobol’s 1986 findings in determining the award to claimant for partial disability.

The judgment of the circuit court is reversed, and the decision of the Commission is reinstated except for the award for permanent partial disability. Said award is reversed, and the cause is remanded to the Commission to recalculate said award in accordance with Dr. Sobel’s 1986 findings.

Judgment reversed; Commission’s decision is reinstated in part; Commission’s award of permanent partial disability reversed; and the cause is remanded to Commission with directions.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER, and RARICK, JJ., concur.