author: JUSTICE McNAMARA

text:
    AERO TESTING & BALANCING SYSTEMS, INC., Petitioner, v. THE HUMAN RIGHTS COMMISSION et at., Respondents.
    First District (3rd Division)
    No. 1-88-1353
    Opinion filed June 28, 1989.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (William R. Sullivan, Jr., and Joseph S. Turner, of counsel), for petitioner.
    Maganzini, McMahon & McNicholas, of Chicago (Paul J. Maganzini, of counsel), for respondents.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Aero Testing & Balancing Systems, Inc., a division of Climatemp, Inc., appeals from a decision of the Illinois Human Rights Commission (Commission) which held that Aero discriminated against its employee, Jack Pachowicz, on the basis of his handicap, multiple sclerosis. An administrative law judge (ALJ) found unlawful discrimination and recommended eight months’ back pay and benefits, plus $39,095 of the requested $51,404 as attorney fees and costs. The Commission, with one dissenting member, adopted the ALJ’s findings and recommendation.

Aero contends that the Commission’s finding as to Pachowicz’ job duties was against the manifest weight of the evidence; that the Commission’s finding that Pachowicz’ handicap was unrelated to his ability to perform his job was against the manifest weight of the evidence; that the attorney fees award was excessive; and that the ALJ committed prejudicial error in not permitting certain cross-examination.

In 1969, Pachowicz began working for Climatemp as a sheet metal apprentice. In 1979 or 1980, he was transferred to Aero as a testing and balancing technician, which involved performing evaluative tests and overall system balancing of commercial air conditioning systems. The physical requirements of the job include repeated climbing up a ladder, 50 to 100 times a day, to make adjustments in the system, climbing down the ladder to take and record the readings, and then climbing up the ladder again to make further adjustments. Sometimes one man stayed on the ladder making adjustments while a second man performed the other duties on the ground.

On May 10, 1982, Pachowicz was diagnosed as having multiple sclerosis, a degenerative nerve disease. In Pachowicz’ case, the disease primarily affected the function of his legs, causing some stiffness and unsteadiness.

From November 1982 to February 1983 Pachowicz was laid off. He was recalled in January 1983 to do “light work” or “paperwork.” On May 20, 1983, Pachowicz was terminated. On November 21, 1983, Pachowicz filed a charge of discrimination with the Illinois Department of Human Rights (Department).

On August 16, 1984, a complaint issued from the Department. In July and August 1985, an eight-day hearing was held before an ALJ. On January 20, 1986, the ALJ issued an interim recommended order and decision finding that Pachowicz was a handicapped person. The ALJ found that Pachowicz established a prima facie case of handicap discrimination and that Aero failed to articulate a legitimate, nondiscriminatory reason for Pachowicz’ termination. The ALJ held that Aero had a duty to prove the reasonable accommodation of continuing to assign Pachowicz to normal duties until February 1984, when he could no longer perform such duties. Because of the substantial deterioration of Pachowicz’ condition after that date, Aero had no duty to reinstate Pachowicz to his prior position, and Pachowicz failed to prove that any other reasonable accommodation existed.

On March 31, 1988, the Commission issued a decision affirming the findings of the ALJ in all respects.

Initially we dispose of Pachowicz’ claim that the appeal should be dismissed because Aero failed to include the name “Climatemp, Inc.,” in the heading of this cause and Aero was not named as a separate legal entity but solely as a division of Climatemp. Aero simply adopted the exact heading used by the Commission in the order from which Aero appeals. No jurisdictional problem arises here.

Since the briefs were filed in the present case, another division of this court dismissed an appeal after finding that the employer had failed to appeal the three-member panel decision of the Commission to the full Commission. Castaneda v. Illinois Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 530 N.E.2d 1005.

We disagree with the Castaneda holding. The statute directs that application for rehearing shall be viewed with disfavor and only upon a clear demonstration that a matter raises legal issues of significant impact or that three-member panel decisions are in conflict. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(F).) Section 8 — 107(E)(1) of the Illinois Human Rights Act provides that final decisions will be issued through a panel of three members. We do not believe the exhaustion of administrative remedies requires application for rehearing before the entire Commission prior to appeal to this court. (See Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 417 N.E.2d 1039.) The appeal is properly before us.

Aero challenges the Commission’s decision, which adopted the findings of the ALJ, as being against the manifest weight of the evidence.

The findings and conclusions of the Commission on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110.) A reviewing court must sustain the Commission’s findings of fact unless they are against the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8— 111(AX2).) If the issues are merely ones of conflicting testimony or the credibility of witnesses, the Commission’s findings will be upheld. Kenall Manufacturing Co. v. Human Rights Comm’n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805.

Discrimination actions are analyzed under the three-step analysis announced in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. (See Village of Oak Lawn v. Illinois Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.) First, the employee must prove by a preponderance of the evidence a prima facie case of unlawful discrimination, which thereby creates a rebuttable presumption of discrimination. The employer then bears the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment decision; and the employee must then prove that the reason offered is only a pretext. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.

Where the facts of a particular case, however, render the formula awkward or inapplicable, it should be discarded. (Board of Trustees v. Human Rights Comm’n (1985), 138 Ill. App. 3d 71, 485 N.E.2d 33.) All parties here agree that the true dispositive question is whether Pachowicz proved his physical condition was unrelated to his ability to perform his job.

The evidence supported the ALJ’s finding that, while Aero’s “announced reason for the termination was ambiguous and difficult to identify,” when stripped of the abstractions, the testimony “amounted to an admission that [Pachowicz’] ‘MS’ was the actual reason.” Aero has stated both that the termination was due to “no work,” and that it was due to Pachowicz’ inability to perform his job as a result of his handicap. No one else was laid off in May 1983, but two men changed to different positions. Ronald Metz, a manager at Aero and Pachowicz’ supervisor, first testified that business was bad at the end of 1982. “If there’s no work, you don’t work.” However, Metz then testified that there was no work left that Aero believed Pachowicz was physically able to perform. He admitted that there was work for Pachowicz if he were able.

Aero, however, maintains that notwithstanding this admission, Pachowicz failed to prove his handicap was unrelated to the job duties, in which case the articulated reason could be reasonable and legitimate.

A prima facie case of unlawful discrimination requires a showing that the employee is handicapped within the meaning of section 1 — 103(1) of the Illinois Human Rights Act. (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 103(1).) The employee must be a member of a protected group. (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 103(1).) Aero does not challenge the Commission’s finding that the diagnosis of multiple sclerosis placed Pachowicz within such a group.

This is not enough, however. The statutory definition of “handicap” requires a showing that the employee is qualified in that his handicap is unrelated to his ability to perform his job. Ill. Rev. Stat. 1983, ch. 68, par. 1 — 103(1); Kenall Manufacturing Co. v. Human Rights Comm’n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805; Sanders v. United Parcel Service (1986), 142 Ill. App. 3d 362, 491 N.E.2d 1314.

The most significant testimony on this issue was offered by Pachowicz’ treating physician, Dr. Jordon L. Topel, a neurologist. He opined that as of the final layoff date of May 1983, Pachowicz was physically capable of performing his job duties, including “doing walking, standing, sitting, writing and at times climbing ladders.” No accommodations were needed from his employer. Dr. Topel never instructed Pachowicz to discontinue or curtail his employment activities. He certainly would have done so if he believed it was necessary for safety reasons.

Dr. Topel regularly discussed work duties with his patients. If there were any major questions, he would speak with the employer in order to dispel misconceptions about the disease. Dr. Topel discussed job duties with Pachowicz and “the major problem *** was mainly standing for periods on the ladder, unsteadiness of that.” Pachowicz reported that “he frequently worked with another man” and the “other person would do a lot of the climbing up the ladder.” Other than that, there were no other limitations in regard to his work.

Dr. Topel’s testimony was supported by his medical examinations and notes throughout the relevant period, indicating that the symptoms varied little and the main problem was some lower leg stiffness. A February 1984 hospital discharge summary reciting the two-year history of the disease and a January 1985 rehabilitation evaluation clinic report corroborated that the symptoms remained minimal and varied little until early 1984.

On November 16, 1982, Dr. Topel noted that Pachowicz’ legs would become stiff, not when he was standing on ladders, but when he sat. At the end of 1982 or beginning of 1983, Dr. Topel “thought that his walking was getting somewhat worse” because the stiffness was worse. Pachowicz then responded well to an alteration in his medication.

Just prior to the final layoff, Dr. Topel examined Pachowicz on May. 4, 1983. Again he reported leg stiffness if Pachowicz sat. Dr. Topel wrote “work okay” and “just tightness both legs.” Pachowicz informed him on May 25, 1983, that he was laid off and “thinks related to his illness.” A June 1, 1983, note reports “legs not as tight.” A June 19, 1983, note says, “very stiff legs.” On September 21, 1983, Dr. Topel wrote, “tired, legs swelling,” and noted some shaking when he sat, but not when he was standing. Since February 1984, there has been a major deterioration in Pachowicz’ condition. By May 1984, he was no longer able to stand unaided.

Aero argues that Dr. Topel was not familiar with the duties of a balancer and tester. We believe that the Commission could properly find the physician was sufficiently familiar with the physical requirements of the duties to render an informed opinion.

Aero also points to the testimony of its expert witness, Dr. Donald Harter, who opined that Pachowicz could not perform the duties of a testing and balancing technician. Dr. Harter, however, never examined Pachowicz. In addition, his opinion was given in response to a hypothetical question assuming job duties far beyond those Pachowicz was ever required to perform. The Commission could properly assign little weight to Dr. Harter’s opinion.

Furthermore, the Commission was entitled to believe Pachowicz’ competent testimony describing his actual job duties, and the fact that neither Pachowicz’ supervisors nor co-workers ever complained of the quality of his work.

Pachowicz testified that he had no difficulty performing his job prior to his layoff. He never refused to perform any task. He never asked for a change in his job duties or for any accommodations. He never missed a day of work. Pachowicz was able to use ladders, move and install equipment, and carry out any assigned duties. Pachowicz was not aware of the other men “helping” him by doing extra ladder work.

Pachowicz described the effects of the MS. His lower legs were tight and sometimes one leg would drag. Sometimes he would lean when walking and would touch a wall for balance. His legs never gave out, nor did he lose control of his leg muscles. He felt no worse at the time he was terminated in May 1983 than he did in May 1982, when his condition was diagnosed. He did not have to rest more often, did not ask for breaks, and did not voluntarily take breaks. If his knees hurt after kneeling a long time, for example, he would simply squat instead of kneel. Overall, he continued to perform his work, despite some tightness in his legs.

When Pachowicz was assigned to work with another man, he tried to keep the ladder climbing to a minimum. He would do most of the readings on the ground while the other man stayed on the ladder and made the adjustments. But in the summer of 1982, he did the ladder work at the Ritz Carlton job while working with a coworker who did not know how to make adjustments. At the Continental Bank job, he installed outlets by himself, requiring use of the ladder and going into the ceiling. At his last job, which was at One South Wacker and ran until his final layoff in May 1983, he was using ladders occasionally.

Pachowicz’ supervisors and co-workers offered corroboration for his testimony. Aero’s answers to interrogatories described Pachowicz’ duties from 1980 until April/May 1983 as those of an adjusting and balancing technician without including any limitations. Metz testified that the accuracy of Pachowicz’ work was never questioned. John Vitkovic, a testing and-balancing technician at Aero, said there were never any problems with accuracy or quality at the One South Wacker job. Pachowicz always did what he was told. It was possible he did some of the installations alone.

Thomas DiGiovanni, a testing and balancing technician at Aero, testified that Pachowicz climbed ladders at the Presidential Plaza job in September and October of 1982. Pachowicz performed normal testing and balancing duties. He worked all day and came and left the job on his own. He never refused to do anything and never asked for a break.

Gus Verri, a testing and balancing technician at Aero, testified that Pachowicz climbed ladders at the Continental Bank job. Pachowicz might have installed the six missing dampers at the Water Tower Ritz Carlton in late October or November 1982. They worked together testing transformers and performing other normal duties. The quality and accuracy of his work, including his readings and reports, were great. He did everything he was asked to do.

Robert Clifford, a testing and balancing technician at Aero, testified that at One South Wacker in October 1982, Pachowicz never asked for favors or left early. He always worked all day. There were never any problems with the quality of his work.

Pachowicz’ brother testified that Pachowicz was doing ladder work at home, installing a garage door opener and hanging wallpaper, as late as 1984.

In addition, after leaving Aero, in October 1983 Pachowicz began working for Graphic Associates. He delivered packages throughout the Chicago area. Sixty percent to eighty percent of his time was spent making deliveries by car. The remaining time he made chromalin proofs while standing.

The evidence amply supports the Commission’s finding that Pachowicz performed normal job duties between 1980 and May 1983. We agree with the ALJ that the record clearly shows that although Pachowicz “found it more physically taxing to perform his job, he continued to perform all required job functions without accommodation and without any absences from work.”

Here, Aero never requested any medical report or records from Dr. Topel or Pachowicz. John Comforte, an Aero officer who terminated Pachowicz, admitted no knowledge of MS. Metz reported that he may have read an article about MS in Reader’s Digest. This factor is particularly important where Pachowicz’ supervisors never witnessed him having any problems at a jobsite while performing as a technician.

Comforte reports one telephone conversation with Dr. Topel in June 1982. When asked why an interrogatory answer stated they discussed whether Pachowicz could return to work when he had not yet been laid off, Comforte testified that the answer must be wrong, but then said the answer was hot incorrect. Dr. Topel’s notes, however, indicate the conversation occurred after the November 1982 layoff had already taken place. Pachowicz had asked Dr. Topel to contact Aero. According to Dr. Topel, the conversation lasted just a few minutes and only “very superficially” touched on the nature of Pachowicz’ MS.

Contrary to Dr. Topel’s medical records and testimony, Aero’s interrogatory answer states Dr. Topel reported the Pachowicz’ “strength was weakening and that [he] was having difficulty walking and maintaining balance.” Incredibly, although totally denied by Dr. Topel, Aero goes on to maintain:

“Dr. Topel was asked if he would release [Pachowicz] to go back to work. Dr. Topel responded that he did not know whether [he] could go back to work.”

Similarly, Comforte testified, “I asked if Jack could continue to work and [Dr. Topel] did not know.”

Dr. Topel’s testimony highlighted another striking contradiction affecting the credibility of Aero’s defense. Dr. Topel testified that Comforte assured him the reason for the layoff after November 1982 was lack of work. In their testimony, Comforte and Metz admitted lack of work was not the reason for the November layoff.

Comforte testified he told Pachowicz and his wife that the November layoff was because “all of his coworkers were very concerned about his safety on the job site; that he was physically incapable of doing his job; that we were carrying Jack; and that he was doing perfunctory tasks.”

Metz vacillated about the November layoff. He first said it was because of no work. Metz then contradicted himself and admitted the layoff was a result of the MS and the handicap was definitely a factor.

Thus, while the November layoff is not at issue here, testimony regarding that layoff indicates both the serious credibility problem permeating the Aero defense and the underlying misperception about the relationship between MS and Pachowicz’ ability to perform his job duties. (We note that Pachowicz does not challenge the Commission’s refusal to award lost wages between the date of his November 1982 layoff and recall in January 1983, as even if the first layoff was the result of unlawful discrimination, the claim is outside the scope of the complaint and was not before the Commission.)

Aero argues further that Pachowicz was not performing the actual duties of a tester and balancer. It introduced videotapes of claimed actual duties, including “pressure testing.” Pachowicz, however, never performed that function. Clifford testified that Pachowicz never had a chance to learn it and that it was only a small percentage of the job. Metz testified that during the time Pachowicz was at Aero, there were very few pressure jobs.

In regard to the need to crawl into duct work shown in the videotape, several employees testified that it was done only “in times of trouble.” Pachowicz testified he never worked in ducts during his entire employment with Aero.

The videotapes also showed men dangerously working near open walls and crawling over fences near open shafts or walking on open beams. Metz admitted, however, that most of the buildings Pachowicz worked at were drastically different and that the tapes depicted OSHA safety violations. Metz testified he never saw Pachowicz on that type of “open construction site.”

Aero maintains that Pachowicz functioned in the job until May 1983 only because it did not permit him to attempt to perform the duties required of the other men. The testimony clearly shows this is a classic case of the employer benevolently “protecting” the employee from his own handicap. Handicap discrimination rarely results from a hostile purpose or intent to discriminate, and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of handicapped persons. (Pushkin v. Regents of University of Colorado (10th Cir. 1981), 658 F.2d 1372, 1385 (multiple sclerosis), cited in Carter v. Casa Central (7th Cir. 1988), 849 F.2d 1048, 1056 n.8 (multiple sclerosis).) The testimony consistently shows, throughout the thousands of pages of transcript, that Aero guided its employees into a well-intentioned but misplaced plan of quietly protecting Pachowicz from the company’s own perception of the disabling effects of MS, which had little or nothing to do with the actual handicap from which Pachowicz suffered.

The evidence reveals only that two or three times during 1982 and 1983 did an employee see Pachowicz stumble or fall while walking on a normal floor, without injury and without seeming at all bothered by the mishap. Several employees noticed the degree of tremor Pachowicz occasionally experienced in his legs. Nothing else was ever observed. The co-workers merely expressed concern for Pachowicz’ safety and well-being, wondering if someone with MS should be on ladders. They never offered criticism of Pachowicz or concern that the safety of others was threatened in any way.

Significantly, the “protect Pachowicz from himself” policy prevented Aero from letting Pachowicz perform duties which he and his physician have clearly shown he was capable of performing. Pachowicz never complained, Metz testified, because they “watched” him “before he could ever complain.” Metz instructed any concerned coworkers “to watch him and see what’s going on. Don’t leave him alone for fear he would get hurt.” “Watching” meant that the “men would not let him do things they thought would be too dangerous for him.” Metz testified that even the “shop boys would have concern about him, and he’d walk [through the shop] — and there’s some sharp objects in the shop. He could be hurt.”

Incredibly, Metz also testified that they kept Pachowicz with another man “because he was starting to falter” prior to having symptoms or diagnosis of MS. The faltering was caused by “his inexperience,” which was normal. Later, he added that Pachowicz did not work alone either because of inexperience or because the other employees were concerned about Pachowicz’ safety.

The ALJ correctly noted that Aero’s reliance on the hearsay comments of several occasional co-workers, with no direct observation of his work, raises “a strong inference that the termination was a prejudiced reaction to the fact of ‘MS’ — precisely the type of discrimination at which the Act is directed.” Furthermore, it was significant that none of the “co-workers upon whom [Aero] exclusively relied could identify any situation or task at which [Pachowicz] failed to adequately perform.” Their comments about his leg tremors were conclusory. They “felt” someone with MS “should not perform the job because it was too demanding for someone with that affliction.” However, preferences of co-workers are impermissible considerations under section 2(d) of the Commission’s Interpretive Rules on Handicap Discrimination. 56 Ill. Admin. Code §2500.10 et seq. (1985).

As an alternative basis for a finding in favor of Pachowicz, the Commission found it was an obvious accommodation to continue letting Pachowicz work on two-man jobs, thus letting him perform the essential duties of the job. Section 4(d) of the Commission’s Interpretive Rules on Handicap Discrimination (56 Ill. Admin. Code §2500.10 et seq. (1985)) acknowledges the concept of an accommodation that is “obvious in the circumstances.”

Aero strenuously argues that Pachowicz could perform as a tester and balancer only if he worked on a two-man team, with the other man doing the ladder work. As the ALJ stated, this hotly disputed issue was of some significance because if the men generally worked in teams, Pachowicz’ handicap was less of a factor because his partner could do some of the ladder work. Moreover, this issue highlighted the numerous inconsistencies permeating Aero’s defense.

Several employees testified they worked alone 80% or 90% of the time. The Commission could properly find from the evidence, however, that although Aero preferred to assign just one man to a job, it was not uncommon for two technicians to work in teams. Pachowicz testified that most of the buildings on which he worked was done in teams. One man adjusted on the ladder while the other man read the outlet.

DiGiovanni stated he worked alone 90% of the time. However, when cross-examined about all the projects he worked on in a year’s time, it proved to be a mathematical impossibility. DiGiovanni agreed that working in a team could make the job go faster.

Metz testified it was not economical to work in teams. He also testified, however, that he would not be surprised if Christie, an Aero supervisor who taught at the testing and balancing school, recommended using two people for gauge reading.

Metz first stated that the instances where men would work in a team were few. Metz and other employees testified, however, to a variety of reasons why the company would use teams. Moreover, a beginner works with someone for one to two years after going to testing and balancing school. They “switch him around” to learn different systems and methods. Paehowicz had gone to school in 1981. Metz testified that Paehowicz was “still floating around to get experience” in 1982 and early 1983.

Metz finally concluded that, well, “[e]ach job is an individual case and you have to approach it that way, and it is my decision to make.” Actually, all that was needed to set up a team was for one worker to telephone and say he needed someone. Metz would tell him which co-worker to call. The ALJ properly pointed out that the distinction between whether men at the same site worked alone or in teams became blurred when Metz insisted that it was totally up to the men to allocate the work. In fact, the record shows that from January 1982 through May 1983, nearly every job Paehowicz worked on had at least one, and often several, teams working on the site.

This evidence tends to indicate that there was flexibility built into the job of tester and balancer. Metz and other employees testified repeatedly that each technician works differently and that there were many ways to complete the job properly. Metz did not control the method of work used at the site. “The men are responsible for their own jobs. They perform whatever function is necessary.”

Our review of the record indicates the ALJ correctly summarized the significance of this issue:

“The entire ‘two-man team’ controversy, while illuminative of [Aero’s] willingness to bend the truth, was a significant but not critical issue. [Paehowicz] never refused to work alone. Metz at one point flatly pronounced that [Paehowicz] had never worked alone. He held this position despite being cross-examined with documents showing [Paehowicz] worked alone, dismissing them as inaccurate. Finally, he agreed that [Paehowicz] had worked alone on at least the T.C. Condo’ project. [Pachowicz] established that he could and did work alone. At any rate, it is clear that enough two-man projects existed to assign [Paehowicz] generally to two-man teams, if it deemed this necessary.”

As further evidence that Pachowicz was incapable of performing the job, Comforte and Metz testified that during the six weeks prior to his termination, Pachowicz was in such bad shape that they kept him working in Metz’ office organizing the file cabinets. Metz then retreated from that position. It was possible that one day Pachowicz went into the field to help other testers. Maybe even more than 10 times. In fact, it could be Pachowicz was in the office just one week. Aero was unable to produce the timesheets for April, May and June 1983, as they were missing. Pachowicz testified that he worked in the office for just three or four days.

In an astounding demonstration of the incredibility of much of the Aero defense, Metz emphasized the vital importance of the accuracy of test reports and other documents, then did a complete reversal when documents were not in Aero’s favor.

When records showed Pachowicz worked alone, or other men worked in teams, Metz stated that records do not always show who worked on a job. Documents showing only Pachowicz’ initials did not mean Pachowicz did the testing and balancing work. Dates and names on test reports are “sometimes inaccurate. They have no meaning.” Moreover, even if the timesheet showed Pachowicz was working on a certain job, that “doesn’t mean that’s the job he was on.” While Metz insisted Pachowicz was only to do paperwork when recalled in January, he could not explain timesheets showing he did 25% paperwork, and 75% testing and balancing. There were no documents to show on which jobs Pachowicz worked alone, or how many one-man jobs they had going at the time.

The ALJ properly found that when Pachowicz tried to use documents to show he performed all required duties and that the men often worked in teams, the ALJ uncovered Aero’s “stunning contradictions.” Moreover, the ALJ correctly reasoned that if a technician worked alone 90% of the time and filled out his own reports, as Aero argued, 90% of the documents should be accurate as to who was assigned to the project.

We hold that the evidence supported the Commission’s finding that Pachowicz proved he was terminated on the basis of his handicap and that his handicap was unrelated to his job duties. We believe this evidence supports the ALJ’s reasoning and conclusions which the Commission adopted: “If an employer were going to terminate an employee based totally upon reports of co-workers, it is likely that it would engage in a somewhat detailed and exhaustive investigation. Yet the reports of the co-workers here were in the form of brief and sketchy comments. *** [I]t is highly suspect that it would base a major decision as termination upon what amounted to a small number of rumors from people with limited opportunity to fully assess [Pachowicz’] capabilities.”

Aero also points to testimony regarding an alleged offer by Aero that Pachowicz would be reimbursed and offered a drafting job if he would go to drafting school. However, we find it unnecessary to explore this particular accommodation. The Commission found it doubtful that such an offer was made. Because we find the evidence supports the Commission’s finding that the handicap was unrelated to the ability to perform the job duties, and demonstrates the obvious accommodation of continuing to assign him to team work, it is unnecessary to determine whether this accommodation was required and, if so, whether it was offered.

Aero argues that the ALJ improperly reversed the burden of proof by requiring Aero to prove the job included duties it identified, and not merely those performed by Pachowicz. It maintains the “difference is critical” because Pachowicz never had to rebut Aero’s legitimate articulated business reason for termination, i.e., that he could not perform the essential duties. First, the burden of proof was not reversed. The ALJ simply believed Pachowicz and found much of Aero’s evidence worthy of little or no weight.

Moreover, Aero failed to ever articulate a legitimate reason for terminating Pachowicz. Having failed to convince us that the evidence does not support a finding that Pachowicz set forth a prima facie case of handicap discrimination, and having failed to articulate a legitimate reason for terminating a man with a handicap unrelated to his job duties, we need go no further in the McDonnell Douglas analysis. See City of Belleville, Board of Police & Fire Commissioners v. Human Rights Comm’n (1988), 167 Ill. App. 3d 834, 522 N.E.2d 268.

Aero next contends that ALJ’s refusal to permit additional cross-examination of Pachowicz after the ALJ asked several questions was prejudicial error. We agree with the Commission that those questions were on a collateral matter and, even if error occurred, it was not prejudicial.

Aero next contends that the attorney fees award was excessive and erroneous. We will not disturb the award because we find no abuse of discretion. (See Rackow v. Illinois Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 504 N.E.2d 1344.) The ALJ wrote a 26-page decision on this issue, and the Commission adopted that decision. The ALJ detailed the precise adjustments and reductions which he made. We summarize those details here.

Over 300 hours were expended by paralegals at $45 per hour. This was reduced to $25 per hour because of the nonlegal nature of their work and lack of information about their background and experience. The hours were reduced by 25% to 250.12 due to billing for services on nonprevailing issues and services of a nonlegal nature.

Over 350 hours were expended by Pachowicz’ attorney at $100 per hour, and his associate at $50 per hour. The hours were reduced by 15% to 313.57 due to billings for services upon nonprevailing issues. The percentage reduction of hours for excessive or nonessential billings is a method which has been approved as an alternative to an item-by-item deduction. See, e.g., Copeland v. Marshall (D.C. Cir. 1980), 641 F.2d 880; Northcross v. Board of Education of Memphis City Schools (6th Cir. 1979), 611 F.2d 636.

The ALJ specifically found that in this unusually complex matter, Pachowicz’ counsel was “exceptionally well-prepared and tried the case with an uncommonly comprehensive command of information” and it was “evident that an extraordinary amount of preparation preceded the hearing.” The ALJ declined, however, to make an upward adjustment of fees of an additional $75 per hour for 345.05 attorney hours, notwithstanding the complexity of the case, because of the fee award’s disproportionality to the relief obtained. Cf. Blum v. Stenson (1984), 465 U.S. 866, 79 L. Ed. 2d 891, 104 S. Ct. 154 (approved upward adjustment for “exceptional success”).

Aero insists that Pachowicz must separate billings for prevailing and nonprevailing issues because the Commission denied Pachowicz’ original requests for additional back pay and reinstatement. We find it was often impossible to differentiate between hours expended in pursuit of issues upon which he prevailed and those upon which he was unsuccessful. There was little distinction between the prevailing and nonprevailing issues. (See Hensley v. Eckerhart (1983), 461 U.S. 424, 76 L.Ed. 2d 40, 103 S. Ct. 1933.) Were we to approve a reduction of fees for every item of relief a complainant requests, even where little time was spent on the issue, we would severely limit the relief a complainant would be willing to risk listing in the original complaint. See Brewington v. Illinois Department of Corrections (1987), 161 Ill. App. 3d 54, 513 N.E.2d 1056 (affirmed award for fees of $12,669 even where no reinstatement or back pay awarded); see also Northtown Ford v. Human Rights Comm’n (1988), 171 Ill. App. 3d 479, 505 N.E.2d 1215.

Aero points to the discrepancy between the compensatory award and attorney fees award. The estimated monetary relief recovered by Pachowicz is $14,331.78, obviously well exceeded by the $39,095.54 award of fees and costs for the eight-day hearing. This factor is not decisive. See, e.g., Rackow v. Illinois Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 504 N.E.2d 1344 (affirmed award of $4,644 as reasonable attorney fees on a compensatory damage award of $300); see also Kenall Manufacturing Co. v. Human Rights Comm’n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805 (affirmed award for attorney fees of $19,393); Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 500 N.E.2d 639 (affirmed $17,722 award for two-day hearing due to extraordinary amount of preparation and complexity of case which was vigorously defended).

We conclude that the attorney fees award was appropriate, and it will not be disturbed. We also agree that the costs of $699.04 and Dr. Topel’s $1,800 expert witness fee were reasonable, particularly in view of the importance of his testimony to a resolution of the case. We agree with the ALJ that the complexity of the case, Aero’s vigorous defense, the extensive preparation and discovery, and the lengthy hearing support the award. Moreover, although Pachowicz did not get the requested additional several months of back pay and reinstatement, he prevailed upon the basic theory of his case — handicap discrimination.

Finally, pursuant to Pachowicz’ request, we remand the case to the Commission for a determination of whether he is entitled to additional attorney fees. See Kenall Manufacturing Co. v. Human Rights Comm’n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805; Johnson v. Human Rights Comm’n (1988), 173 Ill. App. 3d 564, 527 N.E.2d 883.

For the foregoing reasons, the decision of the Human Rights Commission is affirmed, and the case is remanded for a determination of whether Pachowicz is entitled to additional attorney fees and for enforcement proceedings.

Affirmed.

FREEMAN, P.J., and RIZZI, J., concur.

       Justice McNamara participated in this appeal prior to his assignment to the sixth division.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    JANICE SNELL, Special Adm’r of the Estate of Jacqueline Snell, Deceased, Plaintiff-Appellee, v. THE VILLAGE OF UNIVERSITY PARK, f/k/a The Village of Park Forest South, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-2662
    Opinion filed June 28, 1989.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge, Elizabeth A. Brown, Charles C. Hoppe, Jr., and Michelle A. Laiss, of counsel), for appellant.
    Thomas P. Valenti, P.C., and Brian J. McManus & Associates, Ltd., both of Chicago (Thomas P. Valenti and Brian J. McManus, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Village of University Park (Village), appeals from the entry of a jury verdict of $900,000 in favor of plaintiff, Janice Snell, special administrator of the estate of her deceased daughter, Jacqueline Snell (Jacqueline), in a wrongful death and survival action. Defendant also appeals from the denial of its post-trial motion. Plaintiff’s action arose out of an incident which occurred on August 24, 1981, in which Jacqueline, 11 years old at the time, died after falling while riding her bicycle. Plaintiff alleged that the defective condition of a street curb caused Jacqueline to fall and sustain the injuries which caused her death. Specifically, plaintiff alleged that defendant was negligent in failing to inspect the curb; allowing the curb to remain, after receiving notice, in an unreasonably dangerous condition; and causing the curb to be sunken in certain areas.

Defendant raises the following contentions on appeal: (1) defendant was entitled to a directed verdict or a judgment notwithstanding the verdict, as a matter of law, since plaintiff failed to establish that defendant’s negligence proximately caused Jacqueline’s injuries; (2) the verdict is contrary to the manifest weight of the evidence; (3) the accumulation of certain errors at trial regarding the admission of evidence warrants reversal of the verdict; and (4) the verdict is grossly excessive.

For the reasons stated below, we reverse the judgment of the circuit court.

The record indicates that in the afternoon on August 24, 1981, while it was still light outside, Jacqueline and her friend, Lisa Boudreau, rode their bikes to the house of their neighbors, the Reillys, located at 822 Blackhawk in the village now known as University Park, Illinois. After visiting with Terry Reilly, the girls left. Lisa proceeded down the driveway first and rode into the street. Jacqueline followed, riding down the driveway, cutting across the sidewalk onto the grassy area between the sidewalk and street, when she fell.

Lisa Boudreau testified that as she reached the other side of Blackhawk Street, she turned her head and saw Jacqueline falling. Lisa was approximately 20 to 25 feet from Jacqueline. Lisa did not see Jacqueline from the time the two of them were standing in the driveway until she saw Jacqueline falling. Jacqueline did not fall over the handlebars, but rather fell to the side. Lisa saw Jacqueline as she was about to hit the ground. Jacqueline’s head hit the ground, and then Jacqueline was lying on her back, with her head and most of her body on the street and with her legs on the grass. The bicycle was completely on the grass. Lisa approached Jacqueline, picked up her head, and noticed a bump on the back of her head.

Terry Reilly testified that he was standing in the driveway when the accident occurred. Terry saw Jacqueline ride down the driveway, through , the grass, and toward the street. Terry stated that as Jacqueline went near the curb, it appeared that her bicycle “ran out of juice” and Jacqueline and the bicycle just seemed to fall. It did not appear that the bicycle struck any object or that the bicycle wobbled before Jacqueline fell. Jacqueline and the bicycle fell together. Terry stated that Jacqueline and the bicycle were close to the curb when she fell, but he could not say that they struck the curb. The bicycle was lying next to Jacqueline after she fell.

Michael Reilly testified that he was looking out of the front door of his house at 822 Blackhawk and saw the accident occur. Michael could clearly see the street, curb, and grass. When Jacqueline crossed the area between the sidewalk and street, she and the bicycle “just seemed to fall.” It did not appear that she and the bicycle struck anything before she fell. Jacqueline did not fall over the handlebars but fell to the left side, and the bicycle fell with her. It did not appear that the bicycle jumped out or was thrown out in any way, or that Jacqueline lost control of the bicycle before she fell. Before she fell, the bicycle did not appear to wobble or turn in a different direction. It looked as though the bicycle slipped. Michael did not know the location of the front wheel of the bicycle immediately before Jacqueline fell. As far as he could remember, the bicycle was on the grass. After Jacqueline fell, the upper part of her body was in the street and part of her legs was on the grass area.

Brad Haag testified that he lived next to the Reilly house, at 824 Blackhawk, and observed the accident from his window as he was in the bathroom getting ready to shave. He looked out from the bathroom through his front picture window and was approximately 75 feet from where the accident occurred. Brad saw Jacqueline riding her bicycle down the driveway, across the sidewalk, and over the grass. She was between the sidewalk and the curb when she fell. Brad stated that the bicycle “flipped out” from under Jacqueline and it appeared that the grass may have been wet. There was nothing unusual about the bicycle, and it did not appear as if Jacqueline struck any object before she fell or that she lost control of the bicycle. The bicycle and Jacqueline fell to the side. Brad did not see the bicycle come into contact with the curb before Jacqueline fell. Part of Jacqueline’s body was on the grass and part was on the street. The bicycle fell half on the grass and half on the street.

Plaintiff testified that when she arrived at the scene, Jacqueline was lying on her back and was half in the street and half on the grass. Jacqueline was a careful bicycle rider and was in good health at the time of the accident. Plaintiff also testified regarding the family history. Jacqueline had an older sister and a younger brother. In addition, plaintiff described the relationships Jacqueline had with the family and Jacqueline’s contributions to the family. Marshall Snell, the decedent’s father and plaintiff’s husband, also testified to the contributions Jacqueline provided to the family and her relationships with the family members.

Robert Coleman testified that he was the investigating police officer for the Village on the day of the accident. When he arrived at the scene, Jacqueline was lying on her back, partially in the street and partially on the grassy area. Her head and torso were on the pavement.

Initially on appeal, defendant contends that it was entitled to a directed verdict or a judgment notwithstanding the verdict, as a matter of law, since plaintiff failed to establish that the negligence of defendant proximately caused Jacqueline’s injuries. In a negligence action, the plaintiff must establish a duty of reasonable care owed to him by the defendant, a breach of that duty, and an injury proximately resulting therefrom. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 510 N.E.2d 1176.) Negligence may be shown by either direct or circumstantial evidence. (Mort v. Walter (1983), 98 Ill. 2d 391, 457 N.E.2d 18.) Circumstantial evidence need not both create a reasonable inference of the fact to be shown and also exclude all other possible inferences. (Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App. 3d 890, 697, 413 N.E.2d 106.) Liability, however, cannot be based upon surmise or speculation as to what might have happened to cause the plaintiff’s injury. Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 923-24, 489 N.E.2d 409.

In order to establish the element of proximate cause, the plaintiff must bring evidence to demonstrate with reasonable certainty that a defendant’s alleged conduct or omissions caused the plaintiff’s injury. (Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 338, 504 N.E.2d 243.) As a rule, it is within the province of the jury to determine whether the defendant’s actions were the proximate cause of the plaintiff’s damages. (Illinois Bell Telephone Co., 90 Ill. App. 3d at 697.) The trial court, however, has the power to direct a verdict when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) If the plaintiff fails to establish the element of proximate cause, he has not sustained his burden of making a prima facie case and a directed verdict is proper. See Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.

In the instant case, plaintiff asserts that the circumstantial evidence, including the close proximity of the defective curb to the location of the accident, the way Jacqueline fell, and the position of the girl’s body after the fall, supports a reasonable inference that the defective curb caused the decedent to fall and suffer the injuries that led to her death. Therefore, plaintiff contends, the jury verdict is properly supported by the evidence.

The record indicates, however, that none of the witnesses testified that the decedent or her bicycle came into contact with the curb. Plaintiff failed to present other direct evidence that Jacqueline struck the curb before she fell. Further, three of the witnesses stated that it did not appear that Jacqueline or the bicycle came into contact with the curb before they fell. We find that the evidence, therefore, fails to support the conclusion that the curb caused Jacqueline to fall. We hold that plaintiff failed to establish a prima facie case of negligence.

Case law cited by the parties supports this conclusion. In Mclnturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 243 N.E.2d 657, the plaintiff’s decedent fell down a stairway and subsequently died. The plaintiff presented evidence that the stairway was worn and that, in violation of a city ordinance, there was no railing on the right hand side of the stair. The appellate court reversed a jury verdict in favor of the plaintiff, stating that the evidence failed to indicate that the condition of the stairway or missing railing proximately caused the decedent’s fall and consequent injuries and death. (Mclnturff, 102 Ill. App. 2d at 53.) Similarly, in the instant case, we cannot assume from the close proximity of the injured person to the defect that the defect was the cause of the fall.

In Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515 N.E.2d 142, the court affirmed the granting of summary judgment in favor of the defendant. The defendant, a tow truck operator, was assisting a disabled automobile next to a highway when the plaintiff’s decedent, who was standing at the side of the road, was struck by a van which left the highway. The court found that the record failed to support the plaintiff’s asserted inference that the defendant’s negligent failure to place flares or other warning devices on the roadside proximately caused the decedent’s injuries. The court stated that the circumstances must justify an inference of probability rather than mere possibility. The court held that submitting the question to the jury would have required the jury to determine liability based upon impermissible inferences. Salinas, 161 Ill. App. 3d at 514-15.

In the instant case, we find that the evidence fails to support an inference of probability, rather than possibility, that the defective curb caused Jacqueline to fall. Most significantly, the testimony of record disproves plaintiff’s assertion that contact with the defective curb caused the fall. Michael Reilly, Terry Reilly, and Brad Haag testified that it did not appear that Jacqueline or the bicycle struck the curb before she fell. Michael Reilly added that it did not appear that Jacqueline or the bicycle struck any object or wobbled before they fell. Brad Haag stated that he did not see the bicycle come into contact with the curb before Jacqueline fell. In addition, none of the witnesses at trial affirmatively testified that Jacqueline or the bicycle came into contact with the curb prior to falling. In view of the testimony that Jacqueline and the bicycle did not come into contact with the curb before the fall, and the lack of other evidence to show contact with the curb before the fall, we must find that the circumstantial evidence regarding where and how Jacqueline fell, and the position of her body after the fall, is insufficient to establish proximate cause. See Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.

The decision in McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157, cited by plaintiff, does not change this result, since McKanna is distinguishable from the case at bar. In McKanna, the court found circumstantial evidence sufficient to support a jury verdict that the defendant’s negligent maintenance of a ladder proximately caused the plaintiff’s death. The testimony of the plaintiff’s coworker indicated that the plaintiff was standing on the roof near a ladder hatchway at the defendant’s plant after making repairs to an air conditioning system. The co-worker testified that he saw the plaintiff place his left hand on the hatchway cover and then turn around, apparently to prepare to descend the ladder. Through peripheral vision, the co-worker then saw the plaintiff fall to the boiler room floor. The court found that the testimony at trial regarding the plaintiff’s actions, immediately prior to the incident, allowed a reasonable inference that the plaintiff intended to descend the ladder. The evidence also indicated that there were defects in the ladder and that the plaintiff was a safety-conscious worker and was careful on ladders. Mc-Kanna, 161 Ill. App. 3d at 527-28.

In the instant case, unlike McKanna, there were three witnesses who actually observed the fall and who testified that it did not appear that the decedent came into contact with the allegedly defective object. This court therefore has found, unlike the court in McKanna, that a reasonable inference cannot be drawn that the curb caused the injuries.

Since we have found that plaintiff failed to establish a prima facie case of negligence for failure to bring sufficient evidence to show proximate cause, an essential element of negligence, defendant was entitled to a directed verdict. Accordingly, the jury verdict must be reversed and there is no cause to remand this matter to the trial court. In view of our holding on this issue, we need not address defendant’s other arguments relating to alleged errors at trial and the excessiveness of the verdict.

For the foregoing reasons, the judgment of the circuit court is reversed without remandment.

Judgment reversed.

RIZZI and WHITE, JJ., concur.

       Judge Thomas J. Janczy, who subsequently retired, was presiding judge during the trial of this matter.

      Judge Edwin M. Berman presided at the hearing on the post-trial motion in this matter.


author: PRESIDING JUSTICE JIGANTI

text:
    EDWARD JOSEPH ZINSER, Plaintiff-Appellant, v. UPTOWN FEDERAL SAVINGS AND LOAN, F.A., as Successor, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1-88-2029
    Opinion filed June 29, 1989.

      McGee Parramore, of Palatine, for appellant.
    Patricia A. O’Connor, of Lillig & Thorsness, Ltd., of Oak Brook, for appellee Uptown Federal Savings & Loan.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal involves the dismissal of count IV of a complaint for failure to state a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.).

The complaint alleges that the plaintiff, Edward Zinser, purchased a truck from Glenside Nissan. Zinser entered into a written installment agreement with Nissan which was subsequently assigned to the defendant, Uptown Federal Savings (the Bank). Under the terms of the agreement, Zinser was required to make 60 installment payments on the third day of each month, commencing on December 3, 1986. The agreement also included a nonwaiver clause which provided that “[w]aiver of any default in the payment of any installment of the total of payments when due shall not operate as a waiver of any subsequent default. No extension of the time of payment or any other modification of the terms of this contract shall be binding on holder unless written consent thereof is given.”

Sometime prior to December 3, 1986, the due date of the first installment payment, Zinser lost his job. Zinser notified the Bank of his position and requested a moratorium on future payments until he got another job. The Bank orally agreed. Zinser become employed in mid-February at which time he wrote a check which covered the payments due December 3, 1986, January 3, 1987, and February 3, 1987. Zinser also made the installment payment due on March 3, 1987.

During the months of April 1987 through September 1987, Zinser paid some of the installment payments on time and paid some late. As of September 1987, Zinser believed he was current on all but one of his installment payments. The Bank claimed that Zinser was behind in three or four payments. Zinser received no communications from the Bank about late or delinquent payments.

On September 17, 1987, the Bank repossessed the truck, which was parked in a lot at Zinser’s place of employment. Zinser’s personal belongings were taken along with the truck. The Bank refused to return the truck, and Zinser was told that he would have to pick up his personal belongings if he wanted them back.

Based on these facts, Zinser filed a four-count complaint. Count IV, which was directed against the Bank, alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.) The Bank moved to dismiss the count pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The trial court granted the Bank’s motion.

On appeal, Zinser argues that he has stated a cause of action under the Consumer Fraud Act because the facts alleged constitute an “unfair act or practice” under section 2 of the Act. Section 2 provides in pertinent part:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 12D/2, par. 262.

Zinser maintains that despite the nonwaiver clause in the installment contract, the repossession and retention of his truck without notice or consent constitutes an “unfair act or practice” where the Bank has condoned past defaults. Zinser also argues that requiring him to pick up his personal items found in the truck is also an “unfair act or practice.”

Zinser concedes that there are no Illinois cases which support his contention that count IV of the complaint alleges facts which amount to an “unfair act or practice.” However, as Zinser correctly points out, section 2 of the Act quoted above directs the Illinois courts to the interpretations of the Federal Trade Commission and the Federal courts. In his appellate brief, Zinser examines the many years of FTC and Federal court precedent on the question of what constitutes “unfairness.” His research leads him to a discussion of what he calls the current modified FTC standard of fairness as set forth in a letter from the FTC to the congressional committee on commerce, science, and transportation. Zinser’s analysis of the FTC standard boils down to a consideration of whether there is unjustified consumer injury and whether the Bank’s act or practice violates public policy. Although Zinser admits that there are no controlling FTC or Federal court cases, he invites us to conclude that under this modified FTC standard the repossession of his truck without notice and the retention of his personal items result in unjustified consumer injury and violate public policy.

We decline to accept this invitation. As Zinser concedes, none of the numerous citations of Federal court cases, FTC cases, or cases from other jurisdictions are controlling. Furthermore, we do not find any of the extensive citations relevant or persuasive.

Although we find it unnecessary to comment on every case, we will comment on Margolin v. Franklin (1971), 132 Ill. App. 2d 527, 270 N.E.2d 140, which was cited by Zinser to support his conclusion that the repossession of his truck without notice is a violation of public policy. In Margolin, the court reiterated the well-established rule that where “the parties have treated the time clause as waived with respect to some of the payments, the vendor, to avail himself of the right to forfeiture for failure to make subsequent payments on time, must give reasonable, definite and specific notice of his changed intention.” (132 Ill. App. 2d at 531, 270 N.E.2d at 143.) Although the court in Margolin did not address a situation where the parties’ written agreement contained a nonwaiver clause, Zinser concludes that the court would not take such a firm stance and then allow a creditor to avoid the well-established rule by inserting a nonwaiver provision in small print on the reverse side of a printed form contract.

We do not accept Zinser’s argument that Margolin establishes the public policy in Illinois with regard to repossession of an automobile without notice after late payments have been condoned. Margolin involved an action for fraudulent and willful conversion based on repossession of an automobile by a dealer who accepted late payments. There is nothing in the opinion to indicate that the dealer’s repossession of the automobile without notice violated public policy or constituted an “unfair act or practice” giving rise to an action under the Consumer Fraud Act. Furthermore, in General Grocer Co. v. Bachar (1977), 51 Ill. App. 3d 907, 365 N.E.2d 1106, this court ruled on the validity of nonwaiver clauses and held that where a security agreement between parties relating to financing specifically stated that no failure or delay by lender in exercising any right or remedy shall operate as a waiver, the lender’s conduct in accepting some tardy payments could not constitute a suspension of terms of agreement to make payments on certain dates. (51 Ill. App. 3d at 912, 365 N.E.2d at 1109.) Finally, even if the nonwaiver clause in the instant case is unenforceable, it does not follow, as Zinser asserts, that the Bank’s actions violated public policy.

In sum, Zinser has failed to cite any authority to support his conclusion that the repossession of the automobile under the circumstances in the instant case is an unfair act or practice. Accordingly, we reject Zinser’s contention that count IV states a cause of action under the Illinois Consumer Fraud Act.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    CHARTER MEDICAL OF COOK COUNTY, INC., d/b/a Charter Hospital of Hoffman Estates, et al., Plaintiffs-Appellants, v. HCA HEALTH SERVICES OF MIDWEST, INC., d/b/a HCA Woodland Hospital, et al., Defendants-Appellees. — CHARTER MEDICAL OF COOK COUNTY, INC., d/b/a Charter Hospital of Hoffman Estates, et al., Plaintiffs-Appellants, v. COMMUNITY PSYCHIATRIC CENTERS, INC., d/b/a Community Psychiatric Center Hoffman Estates Hospital, et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 1-88-3233, 1-88-3527 cons.
    Opinion filed June 29, 1989.

      Stanley A. Walton III and Ronald D. May, both of Winston & Strawn, of Chicago, and King & Spalding, of Atlanta, Georgia (Glen A. Reed and S. Wade Malone, of counsel), for appellants.
    David A. Epstein, Penny Brown, and Karlo Karacic, all of Carroll, Sain & Epstein, Ltd., of Chicago, for appellee HCA Health Services of Midwest, Inc.
    Jeffrey R. Ladd and Lawrence M. Gavin, both of Bell, Boyd & Lloyd, of Chicago, for appellee Community Psychiatric Centers, Inc.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This consolidated appeal challenges the authority of the Illinois Health Facilities Planning Board (Board) to award certificates of need to three applicants whose construction of psychiatric hospitals in planning area 7-E would produce more beds than the projected bed need. The appeal is brought by one of the certificate of need recipients, Charter Medical of Cook County (Charter). Charter seeks a reversal of the Board’s decision to award certificates of need to the other two recipients, HCA Health Services of Midwest (HCA) and Community Psychiatric Center (CPC). Joining Charter in this appeal are Northwest Mental Health Centers and the Maine Family Service and Mental Health Association (collectively, the Centers), who operate existing mental health facilities in planning area 7-E.

The relevant facts are undisputed. Pursuant to the Illinois Health Facilities Planning Act (Ill. Rev. Stat. 1987, ch. 111V-k, par. 1151 et seq.), an entity which proposes to build a new health care facility must file a certificate of need application for approval by the Illinois Health Facilities Planning Board. Charter, HCA, and CPC filed their respective CON (certificate of need) applications within three weeks of each other. All three applicants proposed to construct and operate freestanding acute mental illness hospitals in Hoffman Estates, Illinois. Hoffman Estates is located in planning area 7-E. Charter sought to build an 80-bed hospital. HCA and CPC each sought to build 100-bed hospitals. At the time each of the applications was deemed complete, the stated bed need for acute mental illness beds in planning area 7-E was 154.

A public hearing was held on October 15, 1987, regarding HCA’s application. Under the Board rules, Charter and the Centers were entitled to present testimony regarding HCA’s application. Accordingly, Charter submitted a letter asserting that the project failed to comply with State Board Rule 1110.730(a) (77 Ill. Adm. Code §1110.730(a) (1985)), which provides that “[additional or new beds must be added to existing hospitals.” The Centers also filed an objection alleging that HCA’s application was not in conformance with certain review criteria set forth in the Board rules. After several other hearings, HCA’s application was approved by the Board on November 5, 1987. Pursuant to the Board rules, Charter submitted a request for reconsideration of the approval of HCA’s application on the basis that the Board failed to follow its adopted procedures. Charter contended, among other things, that pursuant to Board Rule 1160.420 (77 Ill. Adm. Code §1160.420 (1985)), the Board was required to batch HCA’s application with Charter’s pending application. The Board denied the request for reconsideration. Charter subsequently filed a complaint for administrative review in the circuit court. The circuit court affirmed the Board’s approval of HCA’s application.

A public hearing was held on CPC’s application on November 16, 1987. Charter filed an objection asserting that CPC’s project failed to comply with Rule 1110.730(a), which requires that additional or new beds be added to existing hospitals. After several other hearings, CPC’s application was approved on February 5, 1988. Charter requested a reconsideration hearing, contending, among other things, that pursuant to Board Rule 1160.420, the Board was required to batch HCA’s application with Charter’s pending application. Upon denial of the request for reconsideration, Charter filed a complaint in the circuit court for administrative review. The circuit court affirmed the Board’s approval of CPC’s application.

Charter’s certificate of need application to construct a 100-bed acute mental illness facility was approved on February 5, 1988. Neither HCA nor CPC challenges the Board’s decision regarding Charter’s CON.

Charter first argues that the CONs which were granted to HCA and CPC should be revoked because the Board violated Rule 1160.420, which provides in pertinent part that “[substantive projects shall be batched into categories and considered in relation to each other according to *** Health Service Area *** Project Scope *** [and] Category of Service Affected.” 77 Ill. Adm. Code §1160.420 (1985).

Because the Board, as an administrative agency, is given substantial discretion in construing and applying its own rules, our role, as a reviewing court, is limited to determining whether the Board’s construction and application of this rule is plainly erroneous or inconsistent with long-settled construction. Neff v. Miller (1986), 146 Ill. App. 3d 395, 402, 496 N.E.2d 1073, 1077.

The record indicates that the Board was aware that CPC, HCA and Charter filed their applications for CONs within three weeks of each other and that each applicant sought to construct acute mental illness facilities in the same planning area. From a plain reading of this rule, it is unclear if Rule 1160.420 applies to the situation. However, even if the rule does apply, it is unclear what the Board is required to do in such situations. The rule merely provides that substantive projects shall be batched and considered in relation to each other. Charter fails to cite any other statute, Board rule, or precedent to establish a procedure for when applications are to be batched or a standard the Board should follow in considering applications in relation to each other. Without anything more, we cannot say that the Board’s procedure in the instant case violated Rule 1160.420.

Charter argues that even without a rule, the Board was required to batch and comparatively review the applications of HCA and CPC under the doctrine set forth in Ashbacker Radio Corp. v. Federal Communications Comm’n (1945), 326 U.S. 327, 90 L. Ed. 108, 66 S. Ct. 148.

Ashbacker involved competing applications for the same radio frequency. Because of the interference which would result if two applicants received a license for the same frequency, only one license could be granted. The FCC granted a license to one applicant and then scheduled a hearing for the other applicant. The Supreme Court recognized that because the applications were mutually exclusive in that only one license could be granted, the approval of one without a hearing to both deprived the loser of a hearing to which he was entitled under the governing statute. The Court therefore required a hearing on each competing application before a license could be granted.

Although the Ashbacker doctrine has never been applied by the Illinois courts to CON cases, it has been applied to other jurisdictions to require batching of CON applications when the applications are mutually exclusive and filed within the same time period. See, Gulf Court Nursing Center v. Department of Health & Rehabilitative Services (Fla. App. 1985), 483 So. 2d 700; Appeal of Behavior Science In stitute (1981), 121 N.H. 928, 436 A.2d 1329.

In urging this court to find that the Board was required to batch under Ashbacker, Charter maintains that the applications of CPC and HCA were mutually exclusive. In this regard, Charter argues that at the time the CON applications of Charter, HCA and CPC were deemed complete, the bed need in planning area 7-E was 154. By granting all three CONs and allowing Northwest Mental Health Center to add beds to its existing facility, the Board approved 168 more beds than the stated bed need. Charter concludes that because more beds were approved than the bed need indicates, the applicants will not be economically viable if allowed to operate simultaneously.

Charter fails to point to any evidence in the record to support its conclusion that three hospitals cannot operate simultaneously and remain economically viable. Rather, Charter relies on the stated bed need as proof that the applicants are mutually exclusive. Such an argument assumes that the bed need creates a fixed pool of beds and that the Board is without authority to authorize beds in excess of that need.

The stated bed need in a planning area is a projection made by the State agency. Although a critical factor in determining need, there is nothing in the rules to indicate that the Board is without authority to deny a proposed project if not needed even though there is a projected bed need. Similarly, there is nothing to indicate that the Board is without authority to award more beds than the stated bed need. Without reference to any prior Board decision or rule, we cannot say that the stated bed need of 154 prohibited the Board from awarding these three certificates of need.

Charter’s argument regarding batching suggests that batching is a procedure which compels the Board to select only one applicant. However, batching is a procedure to be used by the Board to ensure the hearing rights of applicants when only a limited number of CONs can be granted. Having concluded that the applications of HCA and CPC are not mutually exclusive, we find that the Board was not required to batch and comparatively review.

Charter further maintains that the award of the three CONs violates the purpose of the Planning Act, which Charter asserts is to prevent unnecessary construction and duplication of health care facilities. Again, Charter fails to point to any evidence in the record to support its conclusion that the construction of three hospitals will result in duplication of health care facilities. Further, prevention of unnecessary construction and duplication of facilities is one of several competing goals of the statute, such as quality, availability, and development. (See generally Illinois Health Facilities Planning Act (Ill. Rev. Stat. 1987, ch. 111-k, par. 1152).) In focusing on this one goal of the statute, Charter advocates a mechanical approach to allocating health care services. However, Charter overlooks the Board’s discretion, judgment and expertise required for a balanced consideration of all statutory and regulatory criteria.

Charter next argues that in approving the applications of HCA and CPC to construct freestanding acute mental illness hospitals, the Board violated Rule 1110.730(a), which provides that “Additional or new beds must be added to existing hospitals.” (77 Ill. Adm. Code §1110.730(a) (1985).) Charter acknowledges that under Rule §1110.320(c), the Board is given discretion to permit the construction of a freestanding hospital where an applicant “can justify establishment of a new service by documenting improvement of distribution or accessibility of the service.” (77 Ill. Adm. Code §1110.320(a) (1985).) However, Charter maintains that Rule 1110.730(a) controls because it is found in the section of the rules dealing specifically with the review criteria for projects involving acute mental illness beds, whereas Rule 1110.320(c) is found in the section of the rules dealing with general review criteria. Thus, Charter asserts that Rule 1110.730(a) is an absolute prohibition of new acute mental illness hospitals.

As stated above, our review of the Board’s interpretation and application of its own rules is limited to determining whether such interpretation and application is plainly erroneous or inconsistent with long-settled construction. (Neff v. Miller (1986), 146 Ill. App. 3d 395, 402, 496 N.E.2d 1073, 1077.) As CPC and HCA point out, the rules contained in subpart D, such as Rule 1110.320(c), are to be applied in addition to the rules contained in subpart H, such as Rule 1110.730(a). (See 77 Ill. Adm. Code §§1110.310, 1110.710 (1985).) Thus, the Board’s interpretation of its rules as allowing the construction of freestanding hospitals is reasonable under Rule 1110.320(c). Furthermore, in light of the fact that Charter’s'application to construct a freestanding psychiatric hospital was approved, it is clear that the Board acted consistently with prior rulings.

Charter next argues that the Board’s conclusion that HCA’s application complied with the relevant review criteria is against the manifest weight of the evidence. Charter’s challenge focuses on the review criteria set forth in Rules 1110.230(c), 1110.230(g), and 1110.230(1). Basically, these rules require HCA to demonstrate that its application is responsive to and is primarily designed to serve the needs of planning area 7-E.

In support of its manifest weight argument, Charter essentially relies on the State agency report. This report raised questions about the documentation submitted by HCA with regard to these three rules and indicated: (1) that HCA’s proposal to devote 78 of its 100 beds to children and adolescents was contrary to the need of planning area 7-E for more adult beds; (2) that HCA’s bed mix and letters of support indicated that HCA did not primarily intend to serve patients from planning area 7-E; and (3) that HCA should explore developing more adult beds and more referrals from planning area 7-E.

The Board considered this report, HCA’s application, and HCA’s testimony and found that the proposed project substantially complied with the relevant review criteria and would serve the area needs. It is not the function of this court to weight the evidence; rather, our review is limited to determining whether the Board’s decision is against the manifest weight of the evidence. Northwest Hospital v. Illinois Health Facilities Planning Board (1978), 59 Ill. App. 3d 221, 227, 375 N.E.2d 1327, 1332.

During the relevant proceedings, HCA presented evidence that the area 7-E child and adolescent psychiatric patients were regularly being sent to HCA facilities located outside the planning area. HCA testified that the location of its hospital as part of a planned medical campus would serve to draw area patients. The record also indicates that HCA entered into agreements with mental health care providers, community agencies, and public officials located in planning area 7-E to provide services to local child and adolescent patients. With regard to the bed mix, HCA stated that if necessary, it had the capability to meet future demands for adult beds in area 7-E. As proof of its intent and capability of serving area 7-E, HCA pointed to its established record at other Illinois hospitals of serving local community psychiatric needs. Based on this, we conclude that there was sufficient evidence to support the Board’s finding that HCA’s application is responsive to and is primarily designed to serve the needs of area 7-E. Accordingly, we reject Charter’s contention that the Board’s decision is against the manifest weight of the evidence.

Charter finally argues that the Board failed to make findings which sufficiently complied with Rules 1160.640 and 1110.30(b). Rule 1160.640 provides that the Board “shall state the basis for its final decision on an application for permit, in a written report and shall forward a copy of such findings to the applicant.” (77 Ill. Adm. Code §1160.640 (1985).) Rule 1110.30(b) provides that the Board “shall state the basis for any decision on an application in accordance with conformity or nonconformity with the applicable review criteria.” 9 Ill. Reg. 3734, 3743 (eff. March 6, 1985).

Both CPC and HCA received permit letters from the Board informing them that their certificate of need applications had been approved. The permit letters stated that in awarding the CONs, the Board considered the State agency report, the application material, and the applicant’s testimony. The letters also stated that the Board’s approval was based on the project’s substantial conformance with the applicable standards and criteria. The permit letters further stated that the applicants had documented and justified the need to establish freestanding acute mental health facilities.

Charter argues that the permit letters are incomplete and that the Board failed to specifically explain why it approved applications to construct freestanding acute mental illness hospitals in light of Rule 1110.730(a), which Charter contends is a prohibition of new acute mental illness facilities. Charter further contends that the Board was required to make specific findings with regard to whether HCA’s application conformed with the review criteria set forth in Rules 1110.230(c), 1110.230(g), and 1110.230(1) as discussed above.

Neither Rule 1160.640 nor Rule 1110.30(b) supports Charter’s argument. Rules 1160.640 and 1110.30(b) simply require the Board to state the basis for its final decision. Neither rule requires point-by-point findings or explanations for how and why certain review criteria were applied. The contents of the permit letter constitute a reasonable application of Rules 1160.640 and 1110.30(b). In sum, the Board’s decision reasonably complied with the findings’ requirements of the rules.

For the foregoing reasons, the decision of the trial court affirming the Board’s grant of certificates of need to HCA and CPC is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE JOHNSON

text:
    DAVID POTTER DUFF, Plaintiff-Appellant, v. VARIG AIRLINES, INC., S.A., Defendant-Appellee.
    First District (4th Division)
    No. 1-86-2920
    Opinion filed June 29, 1989.
    David Potter Duff, Ltd., of Oak Park, for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago, and Condon & Forsyth, of New York, New York (J. Robert Geiman, Daina B. Van Dervort, Michael J. Holland, and George N. Tompkins III, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, David Potter Duff, appeals from the order of the circuit court of Cook County dismissing his complaint for lack of subject matter jurisdiction, pursuant to article 28(1) of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, commonly known as and hereinafter referred to as the Warsaw Convention (49 U.S.C.A. §1502 et seq. (1976)). Defendant, Varig Airlines, Inc., S.A., is a Brazilian corporation. The following issues are raised on appeal: (1) whether the Warsaw Convention is constitutional and (2) whether the trial court properly dismissed plaintiff’s complaint for lack of subject matter jurisdiction, pursuant to article 28(1) of the Warsaw Convention.

Plaintiff filed his complaint on March 17, 1986, alleging that Varig was negligent in wrongfully ticketing his flight from Rio de Janeiro, Brazil, to Capetown, South Africa. Plaintiff claims that he was incorrectly advised by defendant of the departure time for his flight; therefore, he was delayed for one week and incurred expenses in the amount of $2,500.

On June 24, 1986, defendant filed a motion to dismiss plaintiff’s complaint, claiming that the court lacked subject matter jurisdiction pursuant to article 28(1) of the Warsaw Convention. Plaintiff filed a response to defendant’s motion, attacking the constitutionality of the Warsaw Convention. On September 10, 1986, a hearing was held on the motion to dismiss. After reviewing the motion, plaintiff’s response, and arguments from each counsel, the trial court granted defendant’s motion to dismiss. Plaintiff filed a motion for reconsideration which was denied on October 8,1986. This appeal followed.

Plaintiff first contends that the Warsaw Convention is unconstitutional. Specifically, he argues that the Warsaw Convention deprives him of his fifth amendment right to due process of law under the United States Constitution in that it restrains his right to travel.

Essentially the Warsaw Convention concerns itself with the liability of air carriers for death and damages suffered by passengers engaged in international travel as defined by article 1(2) of the Warsaw Convention. The United States was not one of the original signatories to the Warsaw Convention; however, it “has declared its adherence to the provisions thereof by a Declaration of Adherence, advised by the Senate, and deposited at Warsaw on July 31, 1934. With congressional implementation it [became effective] for the United States on October 29, 1934.” (Pierre v. Eastern Air Lines, Inc. (D.C.N.J. 1957), 152 F. Supp. 486, 487.) Article VI of the United States Constitution states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of United States, shall be the supreme Law of the Land ***.” (U.S. Const., art. VI.)

Article 28(1) of the Warsaw Convention provides:

“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.” 49 U.S.C.A. §1502 (1976).

The constitutionality of article 28(1) was considered in People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052. Giliberto involved the hijacking of an Air France plane departing from Tel Aviv, Israel, on flight to Paris, France, with an intermediate stop at Athens, Greece, where the hijackers boarded. The plane was forced to fly to Entebbe Airport in Uganda where rescue subsequently occurred. Plaintiffs in the trial court action filed a negligence suit against Air France. Air France moved to dismiss the action pursuant to article 28(1) of the Warsaw Convention. The plaintiffs argued that Air France is domiciled in the United States because it conducts a substantial amount of business in the United States and that the Warsaw Convention is unconstitutional to the extent that it might be applicable. The court rejected both arguments. With reference to their constitutional argument, the court stated:

“[I]t appears that the constitutional challenge asserted here rests only on the claim that the circuit court of Cook County, in the plaintiffs’ words, ‘[i]s one of the few forums, perhaps the only one on this planet, where all three defendant airlines carry on business and are subject to process.’ From this, the plaintiffs assert, it follows that dismissal of this suit would deprive them of due process of law. The contention does not persuade [us]. It is not unique to article 28(1) that a plaintiff may be unable to sue all defendants in a single action, whether because of lack of personal jurisdiction, venue problems, subject matter limitations on Federal or State court jurisdiction, or the like. The plaintiffs cite no authority for the proposition that such inability amounts to a deprivation of due process.” Giliberto, 74 Ill. 2d at 108.

Similarly, in the case at bar, plaintiff has failed to cite any authority to support his contention .that article 28(1) deprives him of due process of law, specifically his right to travel. Moreover, we find no evidence in the record to substantiate plaintiff’s constitutional argument nor does the record provide any factual basis upon which a constitutional argument may be predicated. Therefore, we find no deprivation of plaintiff’s due process right to travel by the application of article 28(1) of the Warsaw Convention.

Plaintiff’s final contention is that the trial court erred in dismissing his complaint for lack of subject matter jurisdiction pursuant to the Warsaw Convention. Plaintiff argues that his air travel arrangements began and ended in the United States and that Varig has a place of business in the United States through which he purchased his original tickets.

Article 1 of the Warsaw Convention outlines the applicability of the treaty and provides that the “convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire.” (Warsaw Convention, art. 1(1), 49 U.S.C.A. §1502 (1976).) “International transportation” is defined as follows:

“[A]ny transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation ***, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority or another power, even though that power is not a party to this convention.” (Warsaw Convention, art. 1(2), 49 U.S.C.A. §1502 (1976).)

If the passenger’s ticket provides for international transportation as defined above, “this is sufficient to invoke the [Warsaw] Convention.” (Eck v. United Arab Airlines, Inc. (2d Cir. 1966), 360 F.2d 804, 808.) Accordingly, “[w]hen the contract of the parties providefs] for transportation between certain designated termini, the provisions of the Convention automatically apply and exclusively govern the rights and liabilities of the parties.” (Varkonyi v. S.A. Empresa De Viacao Airea Rio Grandense (1972), 71 Misc. 2d 607,_, 336 N.Y.S.2d 193, 199.) Article 19 of the Warsaw Convention provides that a “carrier shall be liable for damages occasioned by delay in the transportation by air of passengers, baggage, or goods.” Warsaw Convention, art. 19, 49 U.S.C.A. §1502 (1976).

The tickets produced by plaintiff revealed travel from Rio de Janeiro, Brazil, to Capetown, South Africa, and from Rio de Janeiro to Panama. The departure and destination for one ticket was in Brazil and the departure and destination for the other ticket was in South Africa. Thus, plaintiff’s tickets do provide for international travel within the meaning of the Warsaw Convention.

Having established the applicability of the Warsaw Convention, we turn specifically to article 28(1), which governs the issue at bar. Article 28(1) relates to obtaining subject matter jurisdiction of the action. (Varkonyi v. S.A. Empresa De Viacao Airea Rio Grandense (1972), 71 Misc. 2d 607,_, 336 N.Y.S.2d 193, 198.) It “restricts the forums in which damage actions may be brought in order to foreclose the possibility of suit in the courts of a nation that has no substantial connection with an accident, or in courts that lack advanced judicial procedures.” (Eck v. United Arab Airlines, Inc. (2d Cir. 1966), 360 F.2d 804, 808.) Thus, the instant suit can be maintained only in one of the following forums enumerated in article 28(1): “either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.”

“The domicile of the carrier” has been defined as the carrier’s place of incorporation. (Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798, 802; Recumar, Inc. v. KLM Royal Dutch Airlines (S.D.N.Y. 1985), 608 F. Supp. 795, 798.) The court in Varkonyi (71 Misc. 2d 607, 336 N.Y.S.2d 193) established that Varig is domiciled in Brazil; therefore, Brazil is also its place of incorporation.

Furthermore, it is well settled that for purposes of article 28(1), an air carrier has only one “principal place of business.” (Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798, 802 n.13; Eck v. United Arab Airlines, Inc. (2d Cir. 1966), 360 F.2d 804, 809 n.9.) Varig’s principal place of business is located in Brazil. See Varkonyi v. S.A. Empresa de Viacao Airea Rio Grandense (1972), 71 Misc. 2d 607, 336 N.Y.S.2d 193.

The carrier’s “place of business through which the contract has been made” is the place where the passenger’s ticket was issued. (Smith, 452 F.2d 798, 802-03; Eck, 360 F.2d 804, 814-15.) The record reveals that plaintiff’s tickets were issued by Varig in Rio de Janeiro, Brazil.

The place of “destination” for purposes of article 28(1) is the place of ultimate destination as indicated on the passenger’s ticket, and not the destination of a particular flight. In re Alleged Food Poisoning Incident, March, 1984 (2d Cir. 1985), 770 F.2d 3, 6; Petrire v. Spantax, S.A. (2d Cir. 1985), 756 F.2d 263, 265, cert. denied (1985), 474 U.S. 846, 88 L. Ed. 2d 112, 106 S. Ct. 136; Gayda v. LOT Polish Airlines (2d Cir. 1983), 702 F.2d 424, 425.

Plaintiff argues that he purchased a package of tickets for flights around the world from a travel agent in the United States. He insists that the package of tickets included a Varig airline ticket from Rio de Janeiro, Brazil, to Capetown, South Africa. To the contrary, the only ticket produced at trial by plaintiff showing a flight from Rio de Janeiro to Capetown is a Pan American Airlines ticket issued in Brazil. Thus, the place of plaintiff’s destination was Brazil.

Article 28(1) “ ‘must be considered as absolute and mandatory, on the national level, in the jurisdictional sense, and be given [its] proper status as a treaty obligation of our nation without equivocation.’ ” (Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798, 801, quoting McKenry, Judicial Jurisdiction Under the Warsaw Convention, 29 J. Air L. & Com. 205, 217-18 (1963).) Hence, under article 28(1) if none of the places is located in the United States, as is true in the present case, the courts in the United States lack jurisdiction to hear the action.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

LINN and McMORROW, JJ., concur.