author: JUSTICE BOWMAN

text:
    PATRICIA FLAVELL, Court-Appointed Guardian of the Estate and Person of Shelly Tonkovich, a Disabled Person, and Patricia Flavell, Indiv., Plaintiff-Appellee, v. DONALD RIPLEY, Defendant-Appellant (Arthur Voss, Defendant).
    Second District
    No 2—92—0732
    Opinion filed August 9, 1993.

      Eugene G. Doherty and Gregory P. Guth, both of Holmstrom & Kennedy, P.C., of Rockford, for appellant.
    Frank A. Perrecone, of Lawrence J. Ferolie & Associates, Ltd., and John A. Sandberg, of Thomas & Hinshaw, Culbertson, both of Rockford, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Donald Ripley (Ripley), appeals from an order of the circuit court of Winnebago County denying his motion to reduce a judgment secured against him by plaintiff, Patricia Flavell (Flavell). It appears from the record that the trial court denied the motion because it was not timely filed.

Defendant brought his motion pursuant to section 2 — 1205.1 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—1205.1). Section 2 — 1205.1 provides, in part, as follows:

“In all cases on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, to which Section 2 — 1205 does not apply, the amount in excess of $25,000 of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable by the date of judgment to the injured person by any other insurance company or fund in relation to a particular injury, shall be deducted from any judgment. Provided, however, that:
(1) Application is made within 30 days to reduce judgment.” Ill. Rev. Stat. 1991, ch. 110, par. 2—1205.1.

The relevant facts indicate that plaintiff’s ward was a passenger in an automobile driven by defendant, Arthur Voss (Voss), westbound on Rockton Road in Winnebago County, Illinois. Defendant Ripley was driving his vehicle westbound on Rockton Road some distance ahead of the Voss vehicle. Karyn S. Rossi (Rossi) and Michael P. Storms (Storms) were bicyclists riding on the north side of Rockton Road in the vicinity of the occurrence. As the Ripley and Voss vehicles approached an intersection, Ripley’s vehicle either stopped or substantially reduced its speed. Voss lost control of his vehicle as it neared the Ripley vehicle and thereafter struck a utility pole at the side of the road. The ward was seriously injured as a result of the Voss vehicle striking the utility pole.

Flavell brought suit on behalf of the ward and individually under the family expense act (Ill. Rev. Stat. 1987, ch. 40, par. 1015). Voss, Ripley, Rossi, and Storms were named as defendants. Voss and Ripley filed cross-claims against each other for contribution. The court granted summary judgment motions dismissing Rossi and Storms from the lawsuit.

The cause proceeded to trial against Ripley and Voss on December 11, 1990. On December 19, 1990, the jury returned verdicts finding in favor of plaintiff and against defendant Ripley and fixing damages at $500,000 in favor of the ward, and $67,974.40 in favor of Flavell under the family expense act. The jury returned a verdict in favor of defendant Voss and against plaintiff. On January 10, 1991, the court entered judgment on the verdicts.

On January 17, 1991, plaintiff filed a post-trial motion against Voss for judgment notwithstanding the verdict, alternatively for a new trial on damages only, alternatively for a new trial on liability only or on all issues. On January 18, 1991, defendant Ripley filed a post-trial motion requesting a directed finding in his favor, judgment notwithstanding the verdict, a new trial on liability only, or a new trial on all issues.

In ruling on all post-trial motions, the court left standing the amount of damages fixed by the jury in favor of plaintiff but found that the verdict as to liability was against the manifest weight of the evidence. The court thereupon vacated the judgments previously entered on the verdicts finding liability against Ripley and no liability against Voss. The court ordered a new trial on the issue of liability only, encompassing plaintiff’s claims against Ripley and Voss as well as the cross-claims between Voss and Ripley.

The second jury trial commenced February 6, 1992. On February 11, 1992, the jury returned verdicts in favor of plaintiff and against both defendants, allocating 75% fault to Voss and 25% fault to Ripley. On February 18, 1992, plaintiff for the first time filed a motion pursuant to section 2 — 1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203) seeking to assess interest retroactive to the original verdict returned on December 19, 1990, as to damages. On February 27, 1992, the court entered judgments on the verdicts returned February 11, 1992, and assessed interest on the verdicts retroactive to February 11,1992.

On March 17, 1992, defendant Ripley filed a motion for a new trial and, for the first time, a motion for reduction of the judgment entered in favor of Patricia Flavell, pursuant to section 2 — 1205.1. The court denied all post-trial motions by order entered May 26, 1992, and defendant timely appealed.

Plaintiff asserts on appeal, as she did in the trial court, that Ripley’s motion for reduction of her judgment was time barred, not having been filed within the time for filing post-trial motions following the judgment entered on damages after the first trial. The record shows that the section 2 — 1205.1 motion was filed approximately 15 months after the various other post-trial motions filed by Ripley following the first trial. Plaintiff characterizes the section 2 — 1205.1 motion as a supplement or amendment to these prior motions. Accordingly, plaintiff urges that the standard of review is whether the trial court abused its discretion in denying Ripley’s motion as time barred.

While it is true that a trial court has discretionary power to allow a party to amend or supplement his post-trial motion with additional issues (Frank v. Village of Barrington Hills (1982), 106 Ill. App. 3d 747, 751), where the facts are basically uncontroverted and the real issue is the trial court’s application of the law to the facts, a question of law is presented, and the rule that a court of review may not set aside the trial court’s findings unless contrary to the manifest weight of the evidence is inapplicable. (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 365.) Because the facts before us are uncontroverted and the trial court’s ruling was based on application of the meaning of section 2—1205.1 to the facts, we review the issues presented as a matter of law.

Section 2 — 1205.1 was added to the Code of Civil Procedure by omnibus legislation entitled “An act in relation to the insurance crisis” (Pub. Act 84—1431, art. 6, eff. November 25, 1986). (See Ill. Ann. Stat., ch. 110, par. 2—1205.1, Historical & Practice Notes, at 22 (Smith-Hurd Supp. 1992).) The provision is applicable to any case involving bodily injury or death, or physical damage to property, brought on a negligence or strict liability theory. According to the plain language of section 2 — 1205.1, the application to reduce judgment must be made within 30 days. Our research has failed to disclose any Illinois cases interpreting the 30-day limitation language of section 2 — 1205.1. However, the same language, “[application is made within 30 days to reduce the judgment,” is contained in section 2— 1205 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—1205), which served as a pattern for section 2—1205.1. See Ill. Ann. Stat., ch. 110, par. 2—1205.1, Historical & Practice Notes, at 22 (Smith-Hurd Supp. 1992).

The 30-day limitation language.in section 2 — 1205 was interpreted in Richter v. Northwestern Memorial Hospital (1988), 177 Ill. App. 3d 247. In Richter, the defendant filed a motion to reduce judgment pursuant to section 2 — 1205 within 30 days after the trial court denied its post-trial motion for a new trial as to plaintiff’s damages and six months after the jury returned its verdict. Defendant argued that the language of section 2 — 1205 required that such motion be brought within 30 days of the date of the denial of the post-trial motion. In rejecting this argument, the court stated: “The hospital does not provide this court with a plausible justification for allowing a setoff to be made as late as it claims to be the case, and we cannot assume that the legislature intended to give parties an additional 30 days beyond that provided for filing a post-trial motion to bring to the court’s attention a matter which should have been included in such a motion.” Richter, 177 Ill. App. 3d at 258.

Although Richter did not rely on any particular rules of statutory construction in reaching its decision, we find Richter to be persuasive that section 2 — 1205.1 motions, like section 2 — 1205 motions, must be brought within the time for filing post-trial motions. We believe it is implicit in the plain meaning of the phrase, “application be made within 30 days to reduce judgment,” that a judgment must be in existence before the 30 days start to run. That commencement of the 30-day period starts from the date of judgment is further supported by the plain language of section 2 — 1205.1, which provides that plaintiff’s benefits be deducted from any judgment and that any setoff extends only to benefits paid or payable by the date of the judgment. We note that post-trial motions in jury cases must be filed within 30 days after the entry of judgment or within any further time the court may allow within the 30 days or any extension thereof. Ill. Rev. Stat. 1991, ch. 110, par. 2—1202.

While we agree that section 2 — 1205.1 motions must be made within the time for filing post-trial motions, we do not agree with plaintiff’s argument, which apparently was accepted by the trial court, that defendant’s motion in this case had to be brought within 30 days of the original judgment entered on January 10, 1991. Although the trial court allowed the judgment fixing damages to stand, it vacated the judgments previously entered as to liability and granted defendant Ripley a new trial. Where a judgment order is vacated, the effect is to leave the pleadings as if no judgment were ever entered. (Talley v. Alton Box Board Co. (1962) 37 Ill. App. 2d 137, 140.) As a matter of fact and law, after the court granted Ripley a new trial on the liability issue, Ripley had no liability to plaintiff for any part of the judgment fixing plaintiff’s damages. We therefore believe the defendant is correct in his argument because the motion to reduce judgment filed March 17, 1992, was a timely, first post-judgment motion prompted by the February 27, 1992, judgment on liability. To hold otherwise would require Ripley to file a motion to reduce damages on a judgment for which he has not been found legally liable.

The judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. SCAPES, Defendant-Appellant.
    Fourth District
    No. 4—93—0088
    Argued July 20, 1993.
    Opinion filed August 12, 1993.
    William A. Yoder (argued), of Ostling, Ensign, Barry & Glenn, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and James Majors (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant John Anthony Scapes appeals the trial court’s order denying his petition to rescind the statutory summary suspension of his driver’s license. Defendant alleges he was not in actual physical control of a motor vehicle while under the influence of alcohol. We affirm.

On December 11, 1992, defendant went with a few friends to a bar located in downtown Normal. Defendant drove his 1966 Mustang to this bar and parked his car in front of the Campus Town Supply Store. Defendant consumed approximately three bottles of Miller Lite beer and three shots of alcohol. When defendant left the bar at approximately 12:30 a.m., he knew he was too drunk to drive and so he began to look for someone to drive him home. Because he could not find anyone to drive him home, defendant decided to either call his girlfriend or to simply walk home. Defendant lived approximately one-half mile from the bar. As he was cold, he decided to sit in his car with the heat on while he decided how he was going to get home. Defendant realized his girlfriend was scheduled to take the Graduate Record Examination (GRE) the next morning so, rather than wake her up, he decided to walk home.

While defendant was sitting in his car warming himself, he looked up and saw a sign directly in front of him stating “no parking 2 a.m. — 6 a.m.” Defendant did not want to get a ticket or have his car towed, so he decided to stay in his car instead of walking home. He turned the car off, and put the key into the “accessory” position in order to play the radio. Defendant put on his seat belt “to hold me up, plus it’s the law.”

He dozed off and was subsequently awakened by a police officer knocking on his car window. Defendant rolled down the window and told the officer he was not going anywhere, but that he drank too much at the bar and was merely sitting in his car. Defendant testified he had no intent to drive his car that night.

Officer Duane Lee Harris of the Town of Normal police department testified that at approximately 12:45 a.m. on December 12, he saw a white older model Ford Mustang parked along North Street near a bar called Rocky’s. The engine was idling as evident by the smoke coming from the exhaust pipe. Officer Harris observed one person in the driver’s seat. Approximately one-half hour later, Officer Harris passed by that vehicle again. The car was not running this time. Officer Harris exited his squad car, went up to the vehicle, looked into the car, saw the driver slumped over the wheel asleep and heard the radio playing. Officer Harris testified the key was in the “on” position.

Officer Harris woke up the driver, whom he later identified in court as defendant. He noticed defendant’s eyes were bloodshot and glassy and he had a strong odor of alcoholic beverage on his breath. Officer Harris had defendant perform field sobriety tests. He was of the opinion that defendant was under the influence of alcohol and subsequently placed him under arrest for driving under the influence of alcohol (DUI). The record on appeal indicates defendant took the breathalyzer test that evening, which produced a reading of .11. Defendant was served immediate notice of the suspension of his driving privileges.

On December 21, 1992, defendant filed a petition to rescind the statutory summary suspension. He alleged, among other things, the arresting officer had no reasonable grounds to believe he was in actual physical control of a motor vehicle while under the influence of alcohol. A hearing was held on January 14, 1993, and the court took the case under advisement. On January 22, 1993, the court issued an order denying the petition to rescind the statutory summary suspension. The court found defendant was in actual physical control of the motor vehicle and had a blood-alcohol concentration of greater than .10.

Defendant contends the trial court erred in denying his petition to rescind the statutory summary suspension because when he was arrested, he had no intent to operate the motor vehicle or be in actual physical control of the motor vehicle.

Section 11 — 501(a)(1) of the Illinois Vehicle Code provides that a person shall not drive or be in actual physical control of any vehicle while having a blood-alcohol concentration of .10 or more. (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501(a)(1).) Illinois courts have held that a motorist need not be actually driving a vehicle in order to be in actual physical control of it. (People v. Brown (1988), 175 Ill. App. 3d 676, 678, 530 N.E.2d 74, 75.) Defendant’s intent to put the car in motion is irrelevant to that determination. People v. Cummings (1988), 176 Ill. App. 3d 293, 296, 530 N.E.2d 672, 675; People v. Davis (1990), 205 Ill. App. 3d 431, 435, 562 N.E.2d 1152, 1155.

Certain factors, such as whether the motorist is positioned in the driver’s seat of the vehicle, in possession of the ignition key and has the physical capability of starting the engine and moving the vehicle are repeatedly singled out as indications that the motorist is in actual physical control of the vehicle. Courts have also found actual physical control where the defendant is the only one present in the vehicle and the vehicle doors are locked. (Davis, 205 Ill. App. 3d at 435, 562 N.E.2d at 1155; Cummings, 176 Ill. App. 3d at 295, 530 N.E.2d at 674; People v. Heimann (1986), 142 Ill. App. 3d 197, 199, 491 N.E.2d 872, 874.) A defendant may be in actual physical control of his vehicle even though he is asleep in it. (Cummings, 176 Ill. App. 3d at 295, 530 N.E.2d at 674.) A finding of actual physical control was not defeated where the facts showed defendant was asleep, unconscious, slumped to the passenger side of the vehicle, had his head on the driver’s door with his legs extended across the front seat or the vehicle was off the road in a ditch. See Davis, 205 Ill. App. 3d at 435-36, 562 N.E.2d at 1155-56 (and cases cited therein).

At a hearing regarding the propriety of the statutory summary suspension, the defendant motorist has the initial burden of presenting a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215.) Actual physical control is a question of fact that must be decided on a case-by-case basis. (Davis, 205 Ill. App. 3d at 435, 562 N.E.2d at 1155; Cummings, 176 Ill. App. 3d at 295, 530 N.E.2d at 674.) A trial court’s finding will not be reversed on review unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.

Accordingly, under this analysis, the trial court’s finding was not against the manifest weight of the evidence. Defendant was found asleep in his car, in the driver’s seat, with his seat belt on and the key in the ignition in the accessory position. Defendant admitted to starting the engine and letting it run for approximately five minutes. He would merely have to turn the key over to start the car. The only evidence tending to show no actual physical control was that defendant was asleep and had no intent to drive the vehicle. However, defendant’s intent is irrelevant and being asleep is not enough to defeat a finding of actual physical control.

Defendant believes this court should adopt the public policy argument set forth in Davis and Cummings which holds that where the facts indicate a motorist is “sleeping it off,” the trial court should be allowed to find a defendant was not in actual physical control of his vehicle.

In Cummings, the third district noted its decision in People v. Guynn (1975), 33 Ill. App. 3d 736, 338 N.E.2d 239, which rejected such a public policy, and stated:

“We are concerned, however, that through time and expansion by subsequent court rulings, Guynn may have become counterproductive to society’s goal of providing safe highways. In recent years, the public and the legislature have become increasingly concerned with the injuries and deaths caused by intoxicated drivers. In an effort to keep intoxicated people from driving, the legislature has harshened the penalties for driving under the influence. The legislature’s actions have been accompanied by widespread publicity and a general media effort to educate the public against driving while intoxicated.
We can expect that most people realize, as they leave a tavern or party intoxicated, that they face serious sanctions if they drive. While the preferred response would be for such people either to find alternate means of getting home or to remain at the tavern or party without getting behind the wheel until sober, this is not always done. And while we can say that such people should have stayed sober or planned better, that does not realistically resolve this all-too-frequent predicament.
For the intoxicated person caught between using his vehicle for shelter until he is sober or using it to drive home, Guynn encourages him to attempt to quickly drive home, rather than to sleep it off in the car, where he will be a beacon to police.” (Cummings, 176 Ill. App. 3d at 296-97, 530 N.E.2d at 675.)

The court continued, stating:

“We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into Guynn. In those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily ‘sleeping it off’ in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not ‘in actual physical control’ of the vehicle for purposes of section 11 — 501.” Cummings, 176 Ill. App. 3d at 297, 530 N.E.2d at 675.

The court, however, found that case was not one of those rare instances but instead involved the frequently found circumstances of an intoxicated defendant sleeping in his car after driving it into a ditch. The court noted the defendant provided a “good-citizen tale” of how he came to be drunk in the ditch but the trial court was not obligated to believe him. The evidence showed that at the time of his arrest, the defendant was seated in the driver’s seat of his car, with the engine running and that he was physically capable of moving the car. Thus, the court in Cummings concluded the State proved beyond a reasonable doubt that the defendant was in the actual physical control of his car.

In Davis, the court noted the public policy argument set forth above and observed that some States had enacted provisions which provide for such an exception, and in those States where the legislature had not spoken on this subject, reviewing courts had decided the issue both ways. The court then went on to note the third district’s decisions in Guynn and Cummings and quoted the language quoted above regarding those rare instances where the facts showed that a defendant was furthering safer highways by voluntarily sleeping it off in his vehicle and had no intent of moving it.

The Davis court concluded its case was not one of those rare instances. There, the court found the defendant had been driving from downtown Chicago to Schaumburg and approximately one hour later realized he was not feeling well. He pulled his vehicle off onto the shoulder of the expressway, locked the doors and turned off the engine, but left the keys in the ignition. The defendant climbed over the console between the two front bucket seats, zipped himself into a sleeping bag and fell asleep in the backseat. He did not recall anything further until he was awakened by the trooper and taken out of his vehicle. He acknowledged he had been drinking earlier that evening. The defendant subsequently failed the field-sobriety tests and was placed under arrest. (Davis, 205 Ill. App. 3d at 434, 562 N.E.2d at 1154.) The court concluded that the fact that the defendant was in the backseat of the car did not defeat a finding of actual physical control. The court noted he could just have easily gotten back into the driver’s seat by climbing across the console between the bucket seats as he had to get into the backseat in the first place. Moreover, the court noted the defendant had waited approximately one hour after beginning driving the vehicle before stopping to sleep it off. Thus, the court concluded this was not one of those rare instances where the trial court should be allowed to find that defendant was not in actual physical control of the car.

We do not believe defendant’s case presents one of those rare instances in which a trial court could find a defendant not in actual physical control of the car. The trial court held defendant was in actual physical control of his motor vehicle and the evidence supports this decision.

Therefore, the trial court’s decision was not against the manifest weight of the evidence. The judgment of the circuit court of McLean County is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    KENNETH BAILEY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4—92—0858
    Argued July 20, 1993.
    Opinion filed August 12, 1993.

      Law Office of James P. Baker, of Springfield (James P. Baker (argued), of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General (argued), of Chicago, of counsel), for respondents.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1990, PPG Industries (PPG) discharged petitioner, Kenneth Bailey, after over 27 years of employment. In April 1991, petitioner filed discrimination charges with the Illinois Department of Human Rights (Department), claiming that PPG had discriminated against him based on his age (46 years old at the time of his discharge), race (white), and physical handicaps (physical ailments of angina and emphysema) when PPG discharged him. In February 1992, the Department had completed its investigation and notified petitioner that it was dismissing his charges because it found no substantial evidence to support them. In March 1992, petitioner appealed the Department’s decision to the Illinois Human Rights Commission (Commission), one of the respondents in this case. In September 1992, the Commission affirmed the Department’s dismissal of petitioner’s charges. In re Kenneth Bailey (Sept. 21, 1992),_Ill. Hum. Rights Comm’n Rep__(HRC No. 1991-SA-0600).

Petitioner appeals the Commission’s order of dismissal regarding his charge of age discrimination, arguing that substantial evidence exists that PPG discriminated against him based on his age when it terminated him, and thus the Commission erred in ordering dismissal. Petitioner does not appeal the Commission’s order dismissing his charges of discrimination based on his race and physical handicaps.

We affirm.

Petitioner brought his charges of discrimination under the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1991, ch. 68, par. 1—101 et seq.). Section 8—111(A)(1) of the Act provides the following for judicial review of actions brought under the Act:

“Judicial Review. Any complainant or respondent may apply for and obtain judicial review of a final order of the Commission entered under this Act by filing a petition for review in the Appellate Court within 35 days after entry of the order of the Commission, in accordance with Supreme Court Rule 335.” (Ill. Rev. Stat. 1991, ch. 68, par. 8—111(A)(1).)

Thus, under this section of the Act, petitioner has a direct right of appeal to this court if he files a petition for review with this court “in accordance with Supreme Court Rule 335.” Ill. Rev. Stat. 1991, ch. 68, par. 8—111(A)(1).

Respondent Commission argues that we need not reach the merits of petitioner’s case because his failure to name the Department as a respondent in his petition for review deprives this court of jurisdiction over his appeal. Respondent claims that on administrative review, this court possesses only special and limited jurisdiction. Thus, respondent claims that because petitioner only named the Commission and PPG as respondents, he has not invoked this court’s limited jurisdiction. Respondent PPG has not filed an appearance in this appeal.

Respondent explains this argument by pointing out that Supreme Court Rule 335(a) (134 Ill. 2d R. 335(a)) and section 8—103 of the Act (Ill. Rev. Stat. 1991, ch. 68, par. 8—103) dictate that the Department must be made a respondent on petitioner’s petition for review. Supreme Court Rule 335(a) states that “[t]he agency and all other parties of record shall be named respondents.” (Emphasis added.) (134 Ill. 2d R. 335(a).) Respondent claims that the Commission is the “agency” and the Department is a “party of record” in this case. Additionally, respondent points to section 8 — 103(A) of the Act, which states that the Commission has jurisdiction over a claimant’s request for review of a Department’s decision to dismiss a charge and that in such a request, “the Department shall be the respondent.” (Ill. Rev. Stat. 1991, ch. 68, par. 8—103(A).) Because petitioner failed to name the Department as a respondent, respondent argues that petitioner’s petition for review is not “in accordance with Supreme Court Rule 335,” and therefore, this court has no jurisdiction to review his case.

Review of administrative proceedings by this court is a departure from common law, and thus procedures established for such review must be strictly followed. (See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 353, 549 N.E.2d 1266, 1267; Associated Gen eral Contractors v. Chun (1993), 245 Ill. App. 3d 750, 754.) We recognize that both Lockett and Chun were decided under the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—101 et seq.), which is not invoked by the Act. However, we find that the general discussion in Lockett that procedural requirements set forth for administrative review must be strictly followed also applies to administrative review actions brought under Rule 335. As the supreme court has stated, its rules are in fact rules of procedure and not suggestions. (People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.) Furthermore, we see no reason to establish two different standards of review for review of administrative proceedings. Therefore, we additionally find that if these procedural requirements are not met, we lack subject-matter jurisdiction over a direct appeal to this court under Rule 335. See Chun, 245 Ill. App. 3d at 754.

In this case, petitioner neither named the Department as a respondent, nor sought to amend his petition for review to make the Department a respondent. Petitioner concedes that the Department is a “party of record” that he should have named as a respondent under Rule 335. However, petitioner argues that we should not hold that his failure to strictly comply with the requirements of Rule 335 deprives this court of jurisdiction to review his appeal of the Commission’s order.

In support of his position that this court has jurisdiction, petitioner cites Parham v. Macomb Unit School District No. 185 (1992), 231 Ill. App. 3d 764, 596 N.E.2d 1192, where this court recently rejected an application of the Lockett decision to administrative review under Rule 335. In Parham, the petitioner named only the employer as a respondent in his initial petition for review of the Commission’s order, which he filed within the statutory 35-day time period. (See Ill. Rev. Stat. 1991, ch. 68, par. 8—111(A)(1).) However, under Supreme Court Rule 303(e) (134 Ill. 2d R. 303(e)), this court had granted petitioner’s motion to amend his petition to name the Commission and the Department as respondents brought within 30 days after the statutory 35-day limit had expired. (Parham, 231 Ill. App. 3d at 769, 596 N.E.2d at 1195.) Significantly, this court stated that it did not need to reach the issue of whether the petitioner’s failure to name the Commission and the Department was a jurisdictional defect barring review under Rule 335 because it had allowed petitioner to amend his petition under Rule 303(e), thereby curing any jurisdictional defect. (Parham, 231 Ill. App. 3d at 769, 596 N.E.2d at 1195.) Because petitioner here has not attempted to amend his petition to add the Department as a respondent, this case is distinguishable from Parham. As the Parham court noted, that decision was limited to “the facts of [that] case.” Parham, 231 Ill. App. 3d at 769, 596 N.E.2d at 1195.

We note that the Third District Appellate Court recently addressed the same jurisdictional issue raised here in McGaughy v. Human Rights Comm’n (1993), 243 Ill. App. 3d 751, 612 N.E.2d 964, and we acknowledge that the facts in McGaughy are similar to those in the present case. In McGaughy, the petitioner named the employer and the Commission as respondents in her petition for review of the Commission’s order but failed to name the Department. After quoting from Parham, the third district found the analysis in Lockett did not apply to review under Rule 335 and concluded that it had jurisdiction over that appeal. (McGaughy, 243 Ill. App. 3d at 755, 612 N.E.2d at 967.) As we earlier stated, we find that the general proposition stated in Lockett — that review of administrative proceedings must strictly follow procedural requirements — is controlling in this case despite the fact that Lockett was decided on the basis of the Administrative Review Law. We disagree with McGaughy and decline petitioner’s request to follow it.

For the reasons stated, we dismiss petitioner’s petition for review of the Commission’s order because of his failure to invoke this court’s jurisdiction over his appeal.

Appeal dismissed.

McCULLOUGH and LUND, JJ., concur.


text:
    ILLINOIS MUNICIPAL ELECTRIC AGENCY, Petitioner, v. ILLINOIS COMMERCE COMMISSION et al., Respondents.
    Fourth District
    No. 4—93—0173
    Opinion filed August 12, 1993.

      Douglas G. Brown and Troy A. Fodor, both of Douglas G. Brown, P.C., of Springfield, for petitioner.
    Gary B. Pasek, of Decatur, for respondent Illinois Power Company.
    Roland W. Burris, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, the Illinois Municipal Electric Agency (IMEA), filed a petition with the Illinois Commerce Commission (Commission) seeking “an order confirming that it does not have jurisdiction over the IMEA’s contract with the City of Highland, Illinois, to share a portion of the cost of construction of the new 138 KV facilities serving Highland, Illinois.” Illinois Power Company (IP) was allowed to intervene. The Commission entered an order on December 9, 1992, finding that the IMEA was seeking a declaratory judgment which it was without authority to issue. Accordingly, IMEA’s petition was denied and it now appeals. We affirm.

IMEA is a municipal power agency organized pursuant to the Illinois Joint Municipal Electric Power Act (Electric Power Act) (Ill. Rev. Stat. 1991, ch. 24, par. 11—119.1—1 et seq.). On June 1, 1990, IMEA entered into a long-term power supply contract with the City of Highland to provide electrical power at wholesale rates. In an addendum to the contract, dated October 15, 1990, IMEA agreed “to provide, subject to obtaining any required regulatory approval, no later than five (5) years from the date this contract takes effect, facilities in place and operating at the points of delivery rated at 138 kilo-volts.” The City of Highland was to pay one-half the cost of constructing this new facility.

IMEA filed its petition on October 4, 1991, seeking an order from the Commission that it had no jurisdiction over the contract. A hearing was held on June 2, 1992. The Commission issued its decision on December 9, 1992. After reviewing the arguments made by all the parties in their respective pleadings and briefs, the Commission concluded:

“[T]hat the IMEA is seeking a declaratory judgment from the Commission which the Commission is without authority to issue in light of the Harrisonville decision. In that case, the Court stated:
[‘]Our research has revealed no rule of the Commerce Commission which provides for the rendering of declaratory rulings. Barring the adoption of such a rule in compliance with appropriate rule-making procedures, the Commission has no authority to render declaratory rulings.[’] [Citation.]
At the present time, as at the time of the Harrisonville decision, the Commission has no rule governing the issuance of declaratory judgments. The Commission, therefore, finds that the petition should be denied.”

The IMEA’s application for rehearing and request for oral argument, filed on January 8, 1993, was denied on January 27, 1993. The IMEA timely filed its notice of appeal.

The IMEA raises two arguments on appeal. First, it contends the Commission has the authority to determine whether it has jurisdiction over the subject matter of a petition filed with it. The IMEA relies upon the case of Metropolitan Distributors, Inc. v. Illinois Department of Labor (1983), 114 Ill. App. 3d 1090, 449 N.E.2d 1000. Second, the IMEA believes the case relied upon by the Commission, Harrisonville Telephone Co. v. Illinois Commerce Comm’n (1988), 176 Ill. App. 3d 389, 531 N.E.2d 43, provides no support for its decision. The IMEA concludes, based on the language quoted from Harrisonville, the Commission “should not be heard to argue the absence of ‘rules’ when it is the ‘rulemaker’ that has refused to make the rules.”

The Commission contends there is no “contested case,” as that phrase is defined in section 3.02 of the Illinois Administrative Procedure Act (Act) (Ill. Rev. Stat. 1991, ch. 127, par. 1003.02), but rather that the IMEA seeks a declaratory ruling. The Commission notes that section 9 of the Act (Ill. Rev. Stat. 1991, ch. 127, par. 1009) allows an agency to provide for declaratory rulings. However, the Commission has not so provided; accordingly, it has no jurisdiction over the petition filed by the IMEA. Finally, the Commission believes Metropolitan has no relevance to this matter but that Harrisonville is dispositive of the issue presented.

IP agrees with the Commission that the IMEA sought a declaratory ruling which the Commission was without authority to issue. It is also the position of IP that the Commission does not have jurisdiction over the ministerial act of executing a contract but that it does have jurisdiction over the subject matter of the contract, specifically the construction of the 138 KV power line and the acquisition by the IMEA of any necessary right of way for such line. IP is concerned that the IMEA will equate the lack of jurisdiction over the execution of the contract with the lack of jurisdiction over the subject matter of the contract, which has never been presented to or addressed by the Commission.

An administrative agency such as the Commerce Commission derives its power to act solely from the statute by which it was created and agency action which exceeds its authority is void. Chemed Corp. v. State (1989), 186 Ill. App. 3d 402, 410, 542 N.E.2d 492, 497.

Section 3.02 of the Act provides:

“ ‘Contested case’ means an adjudicatory proceeding, not including rate making, rule-making, quasi-legislative, informational or similar proceedings, in which the individual legal rights, duties or privileges of a party are required by law to be determined by an agency only after an opportunity for hearing.” (Ill. Rev. Stat. 1991, ch. 127, par. 1003.02.)

Section 9(a) of the Act states:

“Each agency may in its discretion provide by rule for the filing and prompt disposition of petitions or requests for declaratory rulings as to the applicability to the person presenting the petition or request of any statutory provision enforced by the agency or of any rule of the agency.” Ill. Rev. Stat. 1991, ch. 127, par. 1009(a).

In Harrisonville, the petitioner, Harrisonville Telephone Company, appealed from an order of the Commission authorizing it to operate and maintain telecommunications cable and associated equipment along a private roadway and to acquire the necessary easement rights, granting Harrisonville a variance from the requirements of the Commission rules, and ordering Harrisonville to comply with certain Commission rules in all future projects. The court held that the portion of the Commission decision unrelated to the project under consideration was a declaratory ruling and therefore void.

The Commission’s order directed Harrisonville to comply with certain Commission rules “ ‘in all future projects which require a certificate under Section 8 — 406 or an order under Section 8 — 503 of the [Public Utilities] Act’ ” unless a variance is obtained. (Harrisonville, 176 Ill. App. 3d at 392, 531 N.E.2d at 45.) The court believed the Commission was without authority to enter such an order given the procedural posture of the case.

The court noted the definition in the Act of “contested case” and the section providing for declaratory rulings. The court then stated:

“Our research has revealed no rule of the Commerce Commission which provides for the rendering of declaratory rulings. Barring the adoption of such a rule in compliance with appropriate rulemaking procedures, the Commission has no authority to render declaratory rulings.” Harrisonville, 176 Ill. App. 3d at 393, 531 N.E.2d at 45.

The court viewed the Commission’s order, as it pertained to future projects not as yet undertaken, as a declaratory ruling. The Commission found that HarrisonviUe had not complied with the Commission’s rules, but that a variance should be granted. Had HarrisonviUe been denied a variance, it could have appealed that denial and raised a question as to the rule’s validity. However, HarrisonviUe was granted its variance and therefore no other action by the Commission was required to determine the correlative rights and duties of the parties before the Commission. The court stated:

“That part of the Commission’s order which addressed future projects unrelated to the project under consideration was gratuitous, unnecessary, and a determination not ‘required by law’ within the meaning of the statutory definition of a contested case. Since the Commission granted a variance in this case, its pronouncement as to future cases was superfluous. We believe the Commission’s pronouncement was in essence a declaratory ruling on the duties of a telephone company — a ruling which the Commission was not authorized to enter.” Harrisonville, 176 Ill. App. 3d at 393, 531 N.E.2d at 46.

Likewise, the IMEA is asking for a declaratory ruling in this case. It merely wants a ruling from the Commission that it has no jurisdiction over the contract with the City of Highland. Section 11—119.1—10 of the Electric Power Act provides that contracts between a municipal power agency and its wholesale customers, the rates to be charged by a municipal power agency to its wholesale customers, and the issuance of bonds by a municipal power agency shall not require the consent and approval of the Illinois Commerce Commission. (Ill. Rev. Stat. 1991, ch. 24, par. 11—119.1—10.) Thus, the statute clearly states that the IMEA does not need the consent of the Commission in order to contract with the City of Highland. Moreover, there is no factual dispute regarding the contract and neither party has challenged the propriety of the contract. Therefore, we find the ruling sought by the IMEA would be gratuitous, unnecessary and a determination not required by law within the meaning of the statutory definition of a contested case. Therefore, the Commission correctly determined it was without authority to issue the ruling sought by the IMEA since it would be a declaratory ruling.

Finally, we briefly address the IMEA’s argument that Metropolitan is dispositive of the issues presented by this appeal. In that case, the Illinois Department of Labor appealed an order which permanently enjoined it from conducting any further investigations into severance pay claims by former employees. The circuit court held that severance pay claims were beyond the jurisdiction of the Labor Department to investigate.

The court stated initially: “The Department asserts, and we agree, that the initial determination of whether an agency has jurisdiction over a particular matter should be made by the agency itself.” (Metropolitan, 114 Ill. App. 3d at 1092, 449 N.E.2d at 1002.) The IMEA alleges, based on this language, the Commission has the duty to determine whether it has jurisdiction over the petition filed by the IMEA.

The Commission determined it had no authority to issue the order sought by the IMEA. No contested case existed and the Commission cannot issue declaratory rulings. Thus, the IMEA’s reliance on Metropolitan is misplaced.

For the foregoing reasons, the Commission’s order is affirmed.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.