author: JUSTICE WELCH

text:
    PEGGY A. BUETTNER, Mother and Next Friend of Aaron Buettner, a Minor, Plaintiff-Respondent, v. PARKE-DAVIS AND COMPANY et al., Defendants-Petitioners.
    Fifth District
    No. 5 — 90—0489
    Opinion filed July 8, 1991.
    Rehearing denied August 14, 1991.

      Rebecca R. Jackson and Sheila K. O’Malley, both of Bryan, Cave, McPheeters & McRoberts, of St. Louis, Missouri, for appellant St. Clement Hospital.
    John L. McMullin and Beth Kamp Veath, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for appellant Parke-Davis & Company.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Charlene A. Creemens, and Terrence K. McGrath, of counsel), for appellant Chong K. Park.
    Michael S. Williams, of Cueto & Cueto, Ltd., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Peggy A. Buettner, mother and next friend of Aaron Buettner, a minor, brought an action in the circuit court of St. Clair County, sounding in medical malpractice against defendants Chong K. Park, M.D., and St. Clement Hospital, as well as products liability against defendant Parke-Davis & Company. Each of the above-named defendants filed a motion to transfer venue of this action, on grounds of forum non conveniens, to the circuit court of Randolph County. The circuit court denied defendants’ motions to transfer venue by its order of June 28, 1990. Defendants petitioned this court for leave to appeal the June 28, 1990, order pursuant to Supreme Court Rule 306(a)(l)(ii) (134 Ill. 2d R. 306(a)(l)(ii)), which petition was granted on October 22, 1990.

Defendants contend that the circuit court abused its discretion in denying their motions to transfer venue from St. Clair County to Randolph County based on forum non conveniens because:

(1) all prospective witnesses to the activities complained-of either reside or work in Randolph County;

(2) all events surrounding the occurrence took place solely in Randolph County;

(3) all medical records and relevant documents concerning the occurrence and injuries complained of are located in Randolph County; and

(4) there is no significant connection between the plaintiff’s cause of action and St. Clair County.

For reasons stated as follows, we affirm the denial by the circuit court of defendants’ motions to transfer venue.

The record indicates that plaintiff and his parents are residents of Red Bud, Illinois, which is located in Randolph County. St. Clement’s Hospital is located in Sparta, Illinois, also in Randolph County. Dr. Park is a resident of Waterloo in Monroe County, Illinois, and has his medical office in Red Bud, Randolph County, Illinois. Warner-Lambert, Inc., d/b/a Parke-Davis, Inc., a foreign corporation whose registered agent in Illinois is located in Cook County, stipulated, for purposes of this lawsuit only, that it is a resident of St. Clair County under sections 2 — 101 and 2 — 102 of the Code of Civil Procedure (see Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 101, 2 — 102). We note at this juncture that under our venue statute (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101), venue in the instant case would be proper in either St. Clair County, as Parke-Davis has stipulated residence therein under section 2 — 102 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 102), or Randolph County, as the situs of the alleged injury.

The record further indicates that St. Clair, Randolph, and Monroe Counties are each adjacent to the other. Affidavits were filed which certified that the distance from the St. Clair County courthouse in Belleville, Illinois, to Red Bud is 20.2 miles with driving time between the two locations of 23 minutes. In contrast, the distance between the Randolph County courthouse in Chester, Illinois, to Red Bud is 25.4 miles with driving time between Chester and Red Bud of approximately 31 minutes. The distance between Dr. Park’s residence in Waterloo and the St. Clair County courthouse is 34 miles.

This controversy involves the physical and mental injury to Aaron Buettner suffered during his birth, allegedly as the result of the use of the drug Pitocin on Peggy Buettner to initiate her labor, as well as the alleged negligence of Dr. Park and St. Clement Hospital during Peggy Buettner’s labor and delivery on June 21 and 22, 1980. All prenatal care would have been received at Dr. Park’s Red Bud office, and Peggy Buettner’s labor and delivery occurred solely at St. Clement’s Hospital. The attorneys for plaintiff and one of the defendants have law offices in St. Clair County. Attorneys for the remaining defendants have offices in St. Louis, Missouri, located to the immediate west of St. Clair County, Illinois, across the Mississippi River.

Aaron Buettner received his neonatal care at Cardinal Glennon Children’s Hospital in St. Louis, Missouri. His treating family physician practices in Belleville. He attends a special school in St. Clair County.

The doctrine of forum non conveniens provides that a court may decline to exercise jurisdiction over a case if it is more convenient to try the case in another forum with appropriate jurisdiction and venue, and would serve the ends of justice. (Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 527, 568 N.E.2d 883, 885, citing Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294.) The doctrine is an equitable doctrine that assumes the existence of more than one forum with jurisdiction over the parties and the subject matter of a case. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105, 554 N.E.2d 209, 211, citing Bland, 116 Ill. 2d at 223, 506 N.E.2d at 1294.) This doctrine is applicable on an intrastate, as well as interstate, basis since the supreme court’s decision in Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601. The party seeking transfer of venue on forum non conveniens grounds has the burden of showing that plaintiff’s chosen forum will be unduly burdensome or inconvenient to him. Lint v. Missouri Pacific R.R. Co. (1990), 200 Ill. App. 3d 1047, 1049, 558 N.E.2d 702, 703.

In resolving both interstate as well as intrastate forum non conveniens questions, it is well established that the trial court must balance private-interest factors affecting the convenience to the litigants with the public-interest factors affecting the administration of the court. (Griffith, 136 Ill. 2d at 105, 554 N.E.2d at 211; Bland, 116 Ill. 2d at 223-24, 506 N.E.2d at 1294.) Private-interest factors to be considered are “ ‘the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ ” (Torres, 98 Ill. 2d at 345, 456 N.E.2d at 604, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) Relevant public-interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211, citing McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 289-90, 520 N.E.2d 368, 372.

Our supreme court has also consistently held that a trial court is vested with broad discretion in ruling on a forum non conveniens motion and that its decision in this regard will be reversed only if it is shown that the court abused its discretion in weighing the relevant considerations. (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118, 497 N.E.2d 745, 747.) Therefore, the sole issue before this court is whether the circuit court abused its discretion in denying defendants’ motions to transfer venue to Randolph County. (Boner, 142 Ill. 2d at 527, 568 N.E.2d at 885.) Our inquiry will focus upon the relative convenience of the available forums, Randolph and St. Clair Counties. Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76, 457 N.E.2d 417, 418.

Of the private-interest factors, we will first examine convenience to the witnesses and parties. Defendants point out that the medical personnel and staff of St. Clement’s Hospital who would be occurrence witnesses on the malpractice claim are located in or near Randolph County, the place of the alleged injury, and contend that it would be inconvenient for the parties and witnesses to attend the trial in St. Clair County. This same argument, regarding witnesses and sources of proof located in Randolph County rather than St. Clair County as the chosen forum, was specifically rejected by this court recently in Lint v. Missouri Pacific R.R. Co. (1990), 200 Ill. App. 3d 1047, 1050, 558 N.E.2d 702, 704. As similarly noted in Lint, all occurrence witnesses are Illinois residents and thus subject to compulsory process. Moreover, given the proximity of Randolph and Monroe Counties to St. Clair County, the courthouse in Belleville is no more inconvenient for many of the occurrence witnesses than the Randolph County courthouse in Chester. This court has previously noted in a number of decisions that it is most difficult to demonstrate inconvenience when the alternative forum adjoins the county in which venue otherwise properly was laid. (Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 944, 558 N.E.2d 509, 512, citing Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19; Lint, 200 Ill. App. 3d at 1050, 558 N.E.2d at 704; Hoffmeister v. K mart Corp. (1989), 181 Ill. App. 3d 739, 744, 537 N.E.2d 460, 463.) Our supreme court has also stated that “[w]hile mileage is but one indication of inconvenience [citation], the relatively short distance between the forum chosen by plaintiffs and that suggested by defendants makes it unlikely that trial in [the chosen forum] would be more costly or inconvenient.” Griffith, 136 Ill. 2d at 113, 554 N.E.2d at 214.

Plaintiff notes with regard to the products liability claim that witnesses from Parke-Davis concerning the manufacture and distribution of Pitocin will outnumber the occurrence witnesses on the malpractice claim. These witnesses will necessarily be out of State, plaintiff argues, because this defendant has no offices, agents, facilities, or employees in either Randolph or St. Clair County, and it will be more convenient for them to testify at the St. Clair County courthouse because of its proximity to Lambert International Airport in St. Louis, Missouri, and Parks Airport in St. Clair County. In point of fact, it will be more convenient for out of State witnesses on both sides of the controversy to utilize the St. Louis and St. Clair County airports, and convenience of all witnesses, including those from out of State, is an appropriate consideration in determining both interstate and intrastate forum non conveniens questions. Griffith, 136 Ill. 2d at 112, 554 N.E.2d at 214.

Regarding plaintiff’s proof of the nature, extent, and duration of his alleged injury, it would also be more convenient for Aaron Buettner’s neonatal and current treating physicians, who are located in St. Louis, Missouri, and Belleville, respectively, or any of the teachers at his special school to testify in St. Clair County. We acknowledge that the supreme court has cautioned that undue weight should not be given to the fact that a plaintiff’s treating physician or expert has an office in the plaintiff’s chosen forum, for to do so would allow plaintiffs to frustrate the forum non conveniens principle by selecting -witnesses from what would, in reality, be an inconvenient forum. (Bland, 116 Ill. 2d at 226, 506 N.E.2d at 1295-96; see also Walsh v. Ramada Inns, Inc. (1989), 194 Ill. App. 3d 945, 949, 551 N.E.2d 249, 252.) In the Bland case, two of the five treating physicians were located in the forum chosen by plaintiff; however, plaintiff’s residence, as well as all of plaintiff’s medical records of his hospital treatment and the nine witnesses for the defense, were located 100 miles away in the transferee forum, and the court specifically found that plaintiff’s chosen forum had no relevant or practical connection with the litigation. In Walsh, the plaintiff obtained medical care in the chosen forum just weeks prior to filing the lawsuit, and this was the only connection to the forum other than the maintenance of defendants’ corporate parent’s offices therein. The plaintiff in the Walsh case previously obtained his medical care in five other counties, the transferee county of plaintiff’s residence and four counties adjacent thereto, and the chosen forum was located 125 miles from the transferee county. In the instant case, however, the chosen and transferee forums are adjacent to each other, and there are connections with St. Clair County other than a treating physician. Moreover, we believe in a case such as this, which alleges severe brain damage suffered at birth, plaintiff’s utilization of metropolitan specialists in St. Louis and Belleville years before suit was filed cannot and should not be equated with forum shopping, and we hold that there would have been no error in according weight to the St. Clair County presence of these post-occurrence witnesses.

Moreover, while location of plaintiff’s attorney in St. Clair County does not provide sufficient connection to establish the propriety of a forum in this county, we also note that St. Clair County would be the most convenient county for all of the defendants’ attorneys to try this case, given their location in St. Louis and Belleville. A transfer to Randolph County for trial in Sparta, Illinois, would necessitate additional travel time and expenses for counsel in excess of those necessary for trial in Belleville, Illinois. This factor can properly be considered in weighing the convenience of the parties (Hoffmeister v. K mart Corp. (1989), 181 Ill. App. 3d 739, 743-44, 537 N.E.2d 460, 462; Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 568-69, 494 N.E.2d 1206, 1209), though little weight should be accorded it. (Boner, 142 Ill. 2d at 534, 568 N.E.2d at 888.) We find no evidence in the record that the circuit court placed undue weight on this factor, but we also find that it militates against the defendants’ desired forum.

Because of the nature of plaintiff’s causes of action, it is unlikely that a jury view would be requested by any of the parties. Moreover, access to medical records at St. Clement’s Hospital and Dr. Park’s office would be unimpeded if the instant case remains in St. Clair County, given its proximity to their location in Randolph County. (See Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 120, 497 N.E.2d 745, 748 (witnesses expected to testify and plaintiff’s treatment records located in chosen forum and three counties adjacent to the chosen forum; accordingly, access to sources of proof not obstructed).) Finally, no other practical problems, such as inability to receive a fair trial in St. Clair County, have been raised by defendants in support of their motions to transfer venue from St. Clair County.

Concerning public-interest factors, it is appropriate to consider the congestion of court dockets as a factor of public concern (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 372, 456 N.E.2d 98, 104), and in doing so, it is proper to notice the Annual Reports of the Administrative Director to the Supreme Court of Illinois. (Meyers, 113 Ill. 2d at 122, 497 N.E.2d at 749.) Dr. Park submitted an affidavit, in the appendix to his brief to this court, of Richard Adkins, a statistical analyst in the Administrative Office of the Illinois Courts, and attached a 1989 table of statistics as the most recent and complete information for “law jury cases” filed and pending for 1987. The table provides that there are 1,597 cases pending in the St. Clair County circuit court while there are only 74 cases pending in the Randolph County circuit court and that the average time lapse in months for a case to be tried in St. Clair County was 35.9 months. Defendants also note that in Wieser, the supreme court commented on the increase in the number of cases filed in St. Clair County from 1975 to 1980 and the average lapse of time between the filing of the complaint and verdict in a law jury case filed in St. Clair County over that same time period, based on the annual report of Administrative Office of Illinois Courts, and stated that “[i]t is apparent that the judicial system of St. Clair County should not be further burdened by importing cases with which that jurisdiction has no connection.” Wieser, 98 Ill. 2d at 373, 456 N.E.2d at 104.

Plaintiff concedes that St. Clair County has a larger docket than Randolph County but argues that the docket system in St. Clair County is based on the system that cases are set for trial when the parties are ready and so this case will be heard as soon as it is ready. Plaintiff urges, therefore, that this court cannot conclude from these statistics that the instant case will not go to trial for three more years. Plaintiff also argues that the complexity of the instant case will necessitate the completion of a large amount of discovery and so defendants’ suggestion that the case can go to trial in Randolph County in only six months’ time is illusory. We also note that 1989 statistics indicate that St. Clair County was able to dispose of 59 cases by verdict while Randolph County disposed of none.

Reviewing courts have often recognized and acknowledged that a trial court is in a better position to assess the burdens on its own docket. (Boner, 142 Ill. 2d at 539, 568 N.E.2d at 891, citing Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 500 N.E.2d 1113; Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 494 N.E.2d 1206.) The supreme court in Boner specifically held that there was no abuse of discretion where a circuit court examines the status of its own docket in assessing the court-congestion factor. (Boner, 142 Ill. 2d at 539, 568 N.E.2d at 891.) The circuit court apparently determined that congestion of its docket was not an obstacle in the instant case, and we have no grounds under the facts of the instant case to hold that this determination was an abuse of discretion.

Defendants next argue that as the situs of plaintiffs alleged injury was St. Clement’s Hospital in Red Bud, Randolph County has an interest in having the controversy decided locally, while St. Clair County does not, and so it would be patently unfair to impose jury duty on the citizens of St. Clair County. Defendants note that the supreme court has expressed the desire that the forum include the place of injury, citing Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98. Moreover, defendants emphasize our recent decision in Overturf v. Illinois Central Gulf R.R. Co. (1989), 195 Ill. App. 3d 962, 553 N.E.2d 1, wherein, they contend, the denial of a motion to transfer venue based on forum non conveniens was reversed where the chosen forum was not the place of injury. In the Overturf case, the basis for reversal of the order denying the motion to transfer venue was a determination that the balance of the private- and public-interest factors strongly favored Franklin County, the transferee forum proposed by defendants. In Overturf, plaintiff and all potential witnesses resided in Franklin County, where the accident occurred, and all medical care was received in Franklin County, other than treatment received in Sangamon County. In addition, of the current treating physicians, two practiced in Franklin County and the third practiced in Jackson County, which adjoins Franklin County, and all of the individual defendants resided in Franklin County except one defendant who resided in the chosen forum, Madison County, which provided the only significant factual connection with the litigation. As plaintiff points out, Franklin and Madison Counties, the transferee and chosen forums, respectively, in the Overturf case, were not adjacent counties as they are in the instant case but some 75 miles and five counties distant from each other. While the situs of injuries allegedly involved in the lawsuit indeed provides the aspect of “a local interest in having localized controversies decided at home” (Bland, 116 Ill. 2d at 224, 506 N.E.2d at 1294), no single circumstance is necessarily dispositive, and each case must ultimately turn on its own set of facts. (Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 228, 478 N.E.2d 370, 372.) Because the determination of whether the circuit court abused its discretion must turn on an examination of the private- and public-interest factors in toto, we cannot say that this one public-interest factor, which indisputably militates in favor of the transferee county, renders the final decision an abuse of discretion.

Defendants, however, contend that there is no significant connection between the plaintiff’s cause of action and St. Clair County and argues that a case should not be tried in a forum which has no significant factual connections with the occurrence, citing Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 466 N.E.2d 198. We initially note that Foster was a case decided on the grounds of interstate rather than intrastate forum non conveniens. In Foster, a Federal Employers’ Liability Action brought in Madison County, Illinois, involved a train accident and injury to plaintiff which occurred 270 miles away in Clinton, Iowa. All witnesses but one resided in Iowa and the only Illinois occurrence witness lived in a town close to Clinton, Iowa. In addition, all medical treatment was received in Iowa. The only connection with Madison County was that defendant’s railroad tracks ran through it and plaintiff’s attorney had his offices there. These connections were not compelling, the supreme court held, when balanced against the considerations supporting transfer to the Iowa forum. Foster, 102 Ill. 2d at 383, 466 N.E.2d at 200.

We note defendant Parke-Davis’ stipulated residence in St. Clair County under the venue statute, which provides that a foreign corporation authorized to transact business in this State is a resident of any county in which it has its registered office or other office or is doing business. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 102(a).) We note in the record the affidavit of Jerry Davis, vice-president of sales for the Parke-Davis Division of the Warner-Lambert Company, which provides that in 1988 Parke-Davis had total worldwide sales of $1,085,100,000 and of that amount it made sales of $119,716 to customers in St. Clair County, Illinois. Defendant Parke-Davis also filed answers to plaintiff’s interrogatories which listed 61 St. Clair County pharmacies, drug suppliers, and hospitals who were its customers in 1982 to 1983. We find, therefore, Parke-Davis’ residence by way of its doing substantial business in St. Clair County gives the chosen forum a local interest in the litigation.

Further, count I of plaintiff’s complaint alleges that the Pitocin administered to Peggy Buettner was in a defective, dangerous condition and that Parke-Davis knew or should have known that the product contained one or more of the following defects:

(A.) When the drug Pitocin was administered to a woman in labor who was also in the condition of cephalopelvic disproportion, the result could be brain damage to the fetus.

(B.) The defendant failed to warn users of the drug Pitocin that when that drug was administered to a woman in labor who was also in the condition of cephalopelvic disproportion, the result could be brain damage to the fetus.

(C.) When the drug Pitocin was administered to a woman in labor, the result could be fetal hypoxia due to uteroplacental insufficiency.

(D.) The defendant failed to warn users of the drug Pitocin that when the drug was administered to a woman in labor, the result could be fetal hypoxia due to uteroplacental insufficiency which leads to late decelerations.

(E.) When the drug Pitocin was administered after late decelerations, the result could be fetal distress.

(E) The defendant failed to warn users of the drug Pitocin that when that drug was administered to a woman in labor, the result could be fetal distress.

(G.) The defendant failed to warn users of the drug Pitocin that when that drug was administered to a woman in labor and fetal distress and/or late decelerations resulted, treatment with Pitocin should be immediately discontinued and an emergency cesarean section should be performed.

(H.) The defendant failed to warn users of the drug Pitocin that treatment with that same drug should only be carried out under the direct supervision of trained personnel.

(I.) When the drug Pitocin was administered to Peggy A. Buettner, it resulted in brain damage to Aaron Buettner.

(J.) The defendant failed to warn the medical community that Pitocin was not indicated for the elective induction of labor. Plaintiff argues that the drug Pitocin is widely used in St. Clair County, more so than Randolph County due to the large difference in county population, and so a jury in St. Clair County has as much interest in deciding whether a drug is safe or warning adequate as a jury in Randolph County.

In Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 558 N.E.2d 509, plaintiffs decedent was electrocuted by an uninsulated electrical wire maintained by defendant utility. This court found that as defendant utility provided electrical power to both the chosen and transferee counties, both counties had an interest in the controversy. (Washington, 200 Ill. App. 3d at 946, 558 N.E.2d at 513.) We believe that this public-interest factor weighs for both the chosen forum and the transferee forum. We cannot say, therefore, that St. Clair County would be overburdened with the trial of a case in which it has no interest or significant factual connection.

As defendants correctly note, plaintiff’s choice of forum is entitled to less deference when the plaintiff is not a resident of the chosen forum. (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 255-56, 70 L. Ed. 2d 419, 435-36, 102 S. Ct. 252, 266.) However, the supreme court noted in the Griffith case that where the chosen forum and the alternative forum suggested by defendants were located in adjacent counties, this fact distinguished it from those cases in which the supreme court found that the relevant factors strongly favored transfer. (Griffith, 136 Ill. 2d at 113, 554 N.E.2d at 214.) In deciding a forum non conveniens motion, a court is to take all the relevant factors into account, giving each factor, including plaintiff’s choice of forum, proper deference or weight under the circumstances. (Griffith, 136 Ill. 2d at 107-08, 554 N.E.2d at 212.) While the foregoing public-interest factors may weigh in favor of both the chosen and transferee forums, or slightly in favor of Randolph County, the supreme court has specifically concluded that public-interest factors are not to be given dominant emphasis over considerations of the parties’ convenience and the plaintiff’s choice of forum, and the court has noted that the forum non conveniens doctrine, which is equitable in nature, allows courts to strike a balance between the convenience of the litigants and the efficient administration of justice. Meyers, 113 Ill. 2d at 122, 497 N.E.2d at 749.

In Torres, the supreme court emphasized six factors to be taken into consideration in making a decision on a forum non conveniens case: the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. (Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.) The circuit court in the instant case specifically found, based on the six Torres factors, that denial of defendants’ motions was proper. Although the first factor, availability of an alternative forum in Randolph County, would support defendants’ motions, the remaining five factors, discussed earlier in this opinion, do not. The supreme court in the Torres decision also cautioned courts of this State that unless the above-stated factors “strongly favor the defendant,” then plaintiff’s choice of forum is entitled to deference, according to his or her statutory right, and defendant’s inconvenience should not be considered. Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.

Under the supreme court’s longstanding definition of abuse of discretion, the decision of the circuit court made in the exercise of its discretion should not be set aside unless the opposite conclusion is clearly apparent. (Bland, 116 Ill. 2d at 233, 506 N.E.2d at 1298 (Goldenhersh, J., dissenting).) Under the foregoing analysis of the circuit court’s decision by weighing the public- with the private-interest factors in support of each forum and under the six Torres factors, we cannot say that it was clearly apparent that defendants’ motions should have been granted, and accordingly, no abuse of discretion here occurred. We affirm, therefore, the June 28, 1990, order of the circuit court of St. Clair County.

Affirmed.

HARRISON and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD JUSTICE GEIGER,

license: Public Domain

text:
    JOSEPHINE CASTORENA, Plaintiff-Appellant, v. BROWNING-FERRIS INDUSTRIES OF ILLINOIS et al., Defendants-Appellees.
    Second District
    No. 2 — 90—1049
    Opinion filed August 9, 1991.

      GEIGER, J., specially concurring.
    Caluwaert, Panegasser & Hancock, of Elmhurst (Daniel J. Kordik, of counsel), for appellant.
    Coleman & O’Halloran, of Chicago (John M. O’Halloran, of counsel), for appellees Browning-Ferris Industries of Illinois and Don Grotz.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Josephine Castoreña, filed a four-count amended complaint against the defendants, Browning-Ferris Industries (BFI), the City of Elmhurst (City) and Don A. Grotz (Grotz). The amended complaint alleged that plaintiff was injured when the car driven by Grotz, in which she was a passenger, struck a dumpster belonging to BFI which was on a roadway controlled by the City. Following the close of the plaintiff’s case, the trial court, directed a verdict in favor of BFI and the City. The jury returned a verdict in favor of plaintiff and against Grotz (an uninsured motorist) in the amount of $164,280. Plaintiff appeals from the trial court’s order directing the verdict in favor of BFI and the City. A summary of the trial testimony pertinent to the issues raised on appeal follows below.

Plaintiff testified that at approximately 9 p.m. on October 2, 1987, she accompanied Grotz, a friend of hers, to the Eden Lanes, where he participated in a bowling league. At the end of the evening, Grotz and she were driving to Grotz’s parent’s home to bury plaintiff’s pet hamster which had died that morning. Plaintiff noticed nothing unusual about the way Grotz was driving or the way he spoke. However, plaintiff also testified that Grotz and she did not really converse on the way to his parents, as she was still upset about the death of her pet and was quietly sobbing.

Plaintiff testified further that the weather conditions were cold and dry. It was about 2 a.m. in the morning of October 3, 1987, and it was dark. She noted nothing unusual about how Grotz was operating the vehicle as it proceeded northbound on Spring Road in Elmhurst. She had no indication that an accident was about to happen until she felt the impact of the vehicle striking something, and she was thrown forward. She did not see what the vehicle struck prior to the impact, but afterwards she saw a large dumpster in the northbound lane of Spring Road. She did not recall if Grotz applied his brakes. She did not notice if any streetlights were on, just that it was dark. She did not observe any barricades or warning lights at the scene.

On cross-examination, plaintiff testified that she had not gone down Spring Road prior to the time of the accident. The headlights of the Grotz vehicle were working, and there was nothing to obstruct her view out the windshield. As far as she knew, the brakes on Grotz’s vehicle functioned. As the vehicle turned onto Spring Road, she was looking out of the passenger window. After the accident, she was assisted into a residence on Spring Road. As she looked out of the window of the residence, she observed a “square black thing.” In the lights from the ambulance, she was able to recognize that it was a dumpster. She identified a photograph of the dumpster which also showed a lightpost and two signs. She did not know whether the light was on or off, just that it was very dark. The dumpster was very large. There were no trees or bushes to obstruct the view of the dumpster.

On redirect, plaintiff testified that there were large trees around the light pole which covered the view of the light pole.

Donald Swierenga testified as an adverse "witness that on October 3, 1987, he was the operations manager for BFI. His duties included the operating aspect of the Melrose Park site, fulfilling contractual obligations and making sure BFI services were rendered in accordance with customer requirements. Prior to being operations manager, he was the safety manager at BFI, and his duties included responsibility for BFI’s safety program.

Swierenga testified that in October 1987 BFI was contracted to do work for the City. He identified a photograph of the dumpster struck by Grotz’s vehicle as a 20-yard roll-off dumpster owned by BFI. In delivering dumpsters, it was BFI’s practice to deliver a dumpster to a certain address, but it was the customer who determined where the dumpster was placed. The witness was uncertain whether the City was the customer in this case. He did recall that in 1987 the City requested dumpsters to be delivered to various locations as a result of heavy flooding during the late summer of 1987.

Swierenga further testified that the dumpster had a label on it which spelled out Browning-Ferris, Industries, Inc. He did not know what the label was made of or whether it illuminated when it was reflected upon. There was another label on the dumpster, which Swierenga was sure warned against putting hazardous substances into the dumpster. Both labels were predominately for advertising purposes. Swierenga admitted that at his deposition he had testified that the purpose of placing labels which contained reflective material was twofold, for identifying the owner and so that it could be seen in the evening. BFI did not put any warning lights out as it took the position that that was the responsibility of the customer.

On examination by counsel for BFI and the City, Swierenga confirmed his deposition testimony that he did not observe any reflectors on the dumpster in question other than the possibility that the labels contained reflective material. He could not tell from the photograph whether or not there were reflective materials in the labels.

The evidence deposition of William Gray was read into the record. Gray is and was on October 3, 1987, the director of public works for the City. His duties include the maintenance and safety of the City’s streets. In August 1987, the City experienced a severe flood. As a result, the City ordered various dumpsters from BFI. The City would direct BFI where to locate the dumpsters. The City also ordered barricades from Navisco, Inc., or Warning Lights of IIlinois. Gray denied that it was the City’s duty to barricade the dumpsters, although he admitted that it was part of his job to put up signs warning of obstructions in the City’s streets. There is a City inspector who inspects to see if the barricades are in place but does not provide the barricades.

Gray testified further that, after the flood in August 1987, the City took on the responsibility of barricading the dumpsters. However, he then testified that for the first two-week period following the flood, the City did not require barricades around the dumpsters because of the number of dumpsters and the fact that they were being filled and removed on a daily basis. Later in the fall, it was the responsibility of the homeowner to provide the barricade around a dumpster when it was in the street. According to Gray, Les Lodwick, a City employee, had as one of his responsibilities to inform the building department if he observed a dumpster without a barricade. The building department would then contact the homeowner to make sure the homeowner would provide a barricade. The City did send out inspectors to check the status of barricades in front of the dumpster.

Gray further testified that there was no City ordinance requiring the placement of barricades around the dumpster, nor did BFI have any requirement that dumpsters be barricaded. There were no reports that any of the streetlights in the immediate area of the dumpster were not working.

The parties stipulated, inter alia, that Grotz pleaded guilty to and was convicted of the offense of driving while under the influence of alcohol and, further, that the breathalyzer test was .2.

Carol Streje, a high school teacher, testified that on September 4, 1987, at approximately 10 p.m., she was returning to her home in Elmhurst. She turned right from Butterfield Road onto Spring Road, driving on the right-hand side of the road. She had driven that route many times. She noticed the dumpster when it was about five feet in front of her; she swerved to avoid it but could not.

Ms. Streje further testified that it was dark. There was a streetlight past the dumpster but no light directly above the dumpster. There were no barricades or flashing lights in front of the dumpster, nor were there any reflectors on the dumpster. The dumpster was in front of a residence around 1021 and 1025 Spring Road. At the time of the accident, she was traveling at a speed of about 25 miles per hour, which is the speed limit in that area. She had had nothing alcoholic to drink that evening. She did apply her brakes prior to hitting the dumpster.

Ms. Streje further testified that after the accident she walked to a nearby Shell Service Station and reported the accident to Officer Lenneweh.

Officer Richard Lenneweh, a police officer for the City, testified that at approximately 10 p.m. on September 4, 1987, he was at a service station at Butterfield Road and Spring Road in Elmhurst, when a woman informed him that she had been involved in an accident. He went to the scene of the accident and observed a vehicle which had struck a dumpster located in the roadway. The officer did not observe any lights or barricades in front of the dumpster nor any reflectors on the dumpster. There was a placard on the side of the dumpster indicating it was owned by BFI. He made a report of the accident.

After plaintiff had rested her case, both the City and BFI moved for a directed verdict. In the case of the City, the trial court found that there was no liability on the part of the City under section 3 — 104 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104). The trial court also found that BFI had no duty to anticipate that Grotz would be operating a vehicle while legally intoxicated. The trial court entered a directed verdict in favor of both the City and BFI. This appeal followed.

Plaintiff contends, first, that the trial court erred in granting a directed verdict in favor of the City on the basis of section 3 — 104. She relies primarily on Janssen v. City of Springfield (1980), 79 Ill. 2d 435.

The City takes the position that Janssen is no longer controlling because it was decided under a previous version of section 3 — 104 that provided that a municipality was not liable for the failure to provide traffic warnings unless they were necessary to warn of a condition endangering the safe movement of traffic and not reasonably apparent to or anticipated by a person exercising due care. (See Ill. Rev. Stat. 1973, ch. 85, par. 3 — 104(b); Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 1078.) Subsection (b) was eliminated from the statute effective November 25, 1986 (Ill. Rev. Stat. 1987, ch. 85, par. 3-104).

The version of section 3 — 104 relevant to the case at bar provides as follows:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.)

The deletion of subsection (b) from section 3 — 104 eliminated the liability in the event such devices were necessary to warn against “a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 104(b).) Subsection (a) (now section 3 — 104), which previously had dealt only with regulatory signs, now includes warning signs as well. Thus, although the deletion of subsection (b) appears at first blush to eliminate all liability for the failure to provide warning signs,' section 3 — 104 only provides immunity for the failure initially to provide such signs.

In the cause before us, the plaintiff introduced evidence of a similar accident in which a vehicle driven by Carol Streje struck a dumpster near the same location as the accident involving the plaintiff. The Streje accident occurred one month prior to the accident involving plaintiff, and an accident report was filed by the Elmhurst police. Thus, although the City was immune from liability under section 3 — 104 for failing initially to place signs warning of the presence of the dumpsters on Spring Road, once the City had notice as a result of the Streje accident of the need for such warning signs, the immunity under section 3 — 104 was no longer available to the City.

Recently in Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, this court rejected the argument that due to the deletion of subsection (b) from section 3 — 104 the decision in Janssen was no longer controlling. We relied on the language in Janssen to the effect that the duty to warn arose from the long-recognized obligation of governmental units to maintain public highways within its boundaries in a safe condition. (Janssen, 79 Ill. 2d at 450; Dinges, 202 Ill. App. 3d at 736.) In light of our decision in this case, we modify the view expressed in Dinges and hold that under section 3 — 104, while a public entity or public employee is immune from liability for initially failing to provide signs warning of a dangerous condition, after there has been notice to the public entity or public employee that such a dangerous condition exists, the immunity no longer exists. We note that in Newsome v. Thompson, the Appellate Court, First District (third division), reached a different result. However, in that case there was no evidence of previous accidents that would have put the City of Chicago on notice of a dangerous condition as was the situation in the case at bar. Therefore, we distinguish Newsome on that basis.

We conclude, therefore, that the trial court erred in granting the City’s motion for a directed verdict on the basis of section 3— 104.

Next, plaintiff contends that the trial court erred in finding as a matter of law that it was not foreseeable that an intoxicated driver would, while operating a motor vehicle at night, strike an unilluminated dumpster located on a city street.

The question of proximate cause is ordinarily one of fact for the jury to resolve. (Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 341.) Yet, it is well established that if an alleged negligent act does nothing more than furnish a condition making the injury possible, and such condition, by the subsequent independent act of a third party, causes the injury, the two acts are not concurrent, and the condition will not be the proximate cause of the injury. (Boylan, 103 Ill. App. 3d at 342.) The Boylan court set forth the test for distinguishing between a proximate cause and a condition as articulated by the supreme court in Merlo v. Public Service Co. (1942), 381 Ill. 300, 316-17, as follows:

“ ‘The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. [Citation.] The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence. [Citation.] If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury. There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the causal connection and makes the other act or omission the remote and not the proximate cause of the injury.’ ” 103 Ill. App. 3d at 342, quoting Merlo, 381 Ill. at 316-17.

In directing the verdict for BFI, the trial court relied on Boylan and Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948. In Boylan, the plaintiff was a passenger in a vehicle whose driver disregarded a red light while rushing to the hospital and was struck by the defendant’s vehicle. Plaintiff sued the city on the theory that the cross traffic could not be seen because of the city’s failure to remove or trim trees and bushes. The reviewing court upheld the trial court’s granting of summary judgment in favor of the city on the basis that, at worst, the city had only permitted a condition and that the disregard of the red light was the proximate cause of plaintiff’s injuries.

In Jeanguenat, plaintiff was a passenger in a vehicle driven by Mills, who had consumed some 10 to 15 beers. Mills’ vehicle struck Zibert’s vehicle, which was parked in a “no parking” zone and was blocking the roadway. Mills admitted that at the time of the collision he was in conversation with the plaintiff and was not looking at the road. Mills further admitted that had his attention been on the road, the collision could have been avoided.

Both Boylan and Jeanguenat are distinguishable from the case at bar. In Boylan, the fact that, the city allowed the bushes and trees to be overgrown would not have mattered had the driver of the vehicle in which plaintiff was a passenger obeyed the traffic signals. In Jeanguenat, while Zibert was negligent in parking in a “no parking” zone and blocking traffic, Mills, the driver of the vehicle that struck Zibert’s vehicle, admitted that he could have avoided the collision if he had been watching the roadway.

In the case at bar, the plaintiff testified that she was not really paying attention to Grotz’s driving but had noticed nothing unusual. Unlike Jeanguenat, Grotz was not distracted by conversation, as plaintiff was looking out the passenger window mourning her dead pet. Although testifying that the streetlights were working, plaintiff testified that it was dark. While the parties stipulated to the legal intoxication of Grotz, there was testimony from Carol Streje that while driving, she had struck a dumpster and that she had not consumed any alcohol at the time of her accident.

Verdicts ought to be directed only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

Given the evidence of a similar accident without the alcohol element together with the lack of evidence as to any erratic or unusual driving on the part of Grotz, we cannot say that Grotz’s driving while intoxicated was an independent act sufficient to break the causal chain and relieve BFI of liability for plaintiffs injuries. While the trial court did direct a verdict for plaintiff on liability as to Grotz, there may be more than one proximate cause of an injury. Merlo, 381 Ill. at 317.

We conclude, therefore, that the trial court erred in directing a verdict in favor of BFI.

The judgment of the circuit court is reversed, and the cause is remanded as to the City and BFI.

Reversed and remanded.

BOWMAN, J., concurs.

JUSTICE GEIGER,

specially concurring:

I agree with the majority that the trial court here erroneously granted the City a directed verdict. I do not, however, subscribe to the majority’s reasoning to reach that conclusion.

The majority’s analysis depends upon Dinges v. Gabardi (1990), 202 Ill. App. 3d 732. Considering the far-reaching implications of Binges (see Binges, 202 Ill. App. 3d at 738-40 (Geiger, J., dissenting)), and the presence of a compelling alternative basis for reaching the result in this decision, I would not base my decision on the City’s receipt of notice of the existence of a hazardous condition and its subsequent failure to erect a barricade.

As the majority here modifies and applies Binges, the defendant City faces liability for an intoxicated driver’s collision with a dumpster. That liability is despite the City’s failing to ever warn of the hazard and is without regard for City action in creating the hazard. Under the majority’s analysis, the potential liability here is premised on the City’s failure to warn motorists of the dumpster placement, and it arises because another motorist’s earlier dumpster collision gave notice that a dangerous condition existed.

Unlike the majority, I do not consider notice to be the critical fact in this case. Rather, I would rely upon the evidence here that the City took an active role leading up to the accident at issue. In this case, the City was not merely a passive body failing to provide warning for a condition that arose, without its control, on a City roadway. Rather, there was evidence that the City acted to create the condition: it ordered dumpsters and specified where they should be placed.

The City is, of course, subject to a general duty to exercise ordinary care in maintaining its property in a reasonably safe condition. (See Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102.) In this case, there is evidence that the City violated that duty by creating and controlling the hazard at issue. Under these circumstances, I would find that despite the fact that the City did not undertake to warn of a traffic hazard, its general section 3 — 104 immunity (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104) is not determinative. The City’s exposure to liability properly results not from its failure to warn of a hazard, but from its active role in creating the hazard, in violation of its duty to maintain safe conditions.


author: JUSTICE INGLIS

text:
    KEVIN HOLMES, Plaintiff-Appellee, v. AURORA POLICE PENSION FUND BOARD OF TRUSTEES et al., Defendants-Appellants.
    Second District
    No. 2 — 90—1432
    Opinion filed August 9, 1991.

      Charles H. Atwell, Jr., of Atwell & Atwell, of Aurora, for appellants.
    Claudia Oney and Mark Rivera, both of Claudia Oney, RC., of Chicago, for appellee.
    Puchalski, Keenan & Reimer, of Chicago, and Richard J. Reimer, of Illinois Police Pension Fund Association, of Des Plaines, for amicus curiae.

   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Kevin Holmes, an Aurora police officer, filed a complaint in May 1988 for administrative review of a decision by defendant, the Aurora Police Pension Fund Board of Trustees (Pension Board or Board), denying his application for participation in the pension fund. The Pension Board denied plaintiff’s application in July 1985 because plaintiff is a diabetic and also denied his request for a hearing on a subsequent application in April 1988 on the ground that the issue had already been decided.

The Pension Board responded to plaintiff’s complaint for administrative review by filing a motion to strike and dismiss plaintiff’s complaint, arguing that plaintiff had failed to file his complaint for administrative review within the statutory 35-day period from the receipt of notice denying his original application. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.) The trial court denied defendant’s motion on September 12, 1989. Defendant’s application for leave to appeal that sole issue pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) was denied by this court on December 14, 1989. A trial on the merits took place on November 26, 1990, after which the trial judge ordered the Pension Board to accept plaintiff as a member of the pension fund. The Board made a timely appeal and alleges two errors at trial. First, defendant argues that the trial court erred in denying defendant’s motion to dismiss. Defendant contends that administrative review was barred because plaintiff failed to file his complaint within the proper time period. Alternatively, defendant argues that the trial court erred in ordering defendant to accept plaintiff as a member of the fund. We reach only the first issue raised and vacate the judgment of the trial court on that basis.

The Aurora Civil Service Commission (Commission) maintains a police officer eligibility list and appoints police officers from the list. The Pension Board admits or rejects applicants seeking membership in the Police Pension Fund. The two agencies operate independently.

On July 10, 1984, plaintiff filed an application with the Pension Board for admission into the Aurora Police Pension Fund. The application was apparently also sent to the Commission. At a meeting on August 16, 1984, the Commission unanimously voted to strike plaintiff’s name from the eligibility list of police officers after reviewing medical reports that plaintiff had submitted. Thereafter on August 23, 1984, the Pension Board denied plaintiff’s application because the medical reports revealed plaintiff to be an insulin-dependent diabetic.

On February 14, 1985, plaintiff submitted a second application to the Pension Board. The application was also apparently sent to the Commission. While that second application was pending before the Pension Board, the Commission reinstated plaintiff onto the police officer eligibility list and subsequently hired plaintiff as an Aurora police officer on April 1, 1985. On March 25, 1985, prior to being hired, plaintiff signed a statement prepared by the city which stated as follows:

“This will acknowledge that I have been duly advised that my employment as an Aurora police officer is contingent upon being found physically and mentally fit to perform the duties of a police officer and that final determination of my fitness has not yet been made by the Aurora Police Pension Board.”

On July 2, 1985, the Pension Board denied plaintiff’s February 1985 application for membership in the pension fund. The Board sent a letter by certified mail to plaintiff dated July 11, 1985, which reads as follows:

“Dear Mr. Holmes:
Your application for membership to the Aurora Police Pension Fund was unanimously denied by the Board of Trustees at the July 2, 1985 meeting.
Should you have any questions on this matter, please do not hesitate to contact me.
Respectfully,
Isi William Messmer President Board of Trustees Police Pension Fund”

Plaintiff received the above letter on July 13, 1985. The record is silent as to how plaintiff proceeded, if at all, after he received the above letter until March 1988. Plaintiff retained his position as an Aurora police officer during this period, although he was not a member of the pension fund. On March 31, 1988, plaintiffs attorney delivered a letter to the Pension Board requesting a hearing on plaintiffs application to participate in the pension fund. The Pension Board denied plaintiff’s request for a hearing on his application in a letter to plaintiff’s attorney dated April 4, 1988. In the April 4 letter, the Board stated that “no further action is required” by the Pension Board because the application had previously been acted on, presumably referring to the Board’s July 2,1985, denial of plaintiff’s application.

Plaintiff filed his complaint for administrative review on May 6, 1988, seeking to compel the Pension Board to grant plaintiff a hearing on his application for admission into the pension fund. Defendant responded with a motion to strike and dismiss plaintiff’s complaint, arguing that plaintiff’s March 31, 1988, letter to the Board was in essence a request for a rehearing on an issue previously decided in July 1985 by the Board. Defendant argued that the trial court was without jurisdiction properly to hear the cause because plaintiff failed to seek judicial review of the Board’s July 2, 1985, action within 35 days of receiving notice as required by section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103). Plaintiff filed a response to defendant’s motion and amended his complaint, arguing that the Pension Board’s failure to advise plaintiff in its July 11, 1985, letter that he had 35 days to file a complaint for administrative review was a denial of plaintiff’s constitutional guarantee of due process of law.

The trial judge entered an order on September 12, 1989, denying defendant’s motion to strike and dismiss plaintiff’s complaint. In a written letter opinion the trial judge initially found that the July 11, 1985, notice was “fatally defective” because the letter was not sent by “certified or registered mail or by personal service as required by Statute. (Ill. Rev. Stat. 1985, ch. 127, par. 1010).” However, this court notes that the record contains a copy of the certified mail return postcard signed by plaintiff on July 13, 1985, and returned to the Pension Board. The trial judge then held that the 35-day statutory filing time requirement (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103) was tolled because the July 11, 1985, letter did not properly apprise plaintiff of his right to appeal and thus denied plaintiff due process of law pursuant to the holding in Johnson v. State Employees Retirement System (1987), 155 Ill. App. 3d 616.

The trial judge next considered and distinguished Nelson v. Board, of Trustees of the Police Pension Fund (1986), 141 Ill. App. 3d 411, where the appellate court held that a similarly situated plaintiff was not denied due process when the pension board denied him a hearing on his application, as being “a distinction without a difference.” The trial judge’s opinion then stated:

“The right to participation in a pension program is so much a part of the employment scene in this country as to be worthy of judicial notice. It is an important benefit which is hotly bargained for in employment agreements. It is a benefit of substantial importance to law enforcement personnel. The out of hand denial of that benefit, without opportunity of hearing, is a denial of due process.”

The trial judge denied defendant’s motion to dismiss, concluding that the Pension Board never properly addressed plaintiff’s original February 1985 application.

After a trial on the merits, the trial court entered an order on November 26, 1990, ordering defendant to admit plaintiff as a member of the pension fund, retroactive to the date of his first application for membership in the fund if plaintiff makes appropriate payments. In a written letter opinion accompanying the order, the trial judge reviewed the evidence and concluded that the Pension Board’s denial of plaintiff’s application was contrary to the manifest weight of the evidence and arbitrary and capricious. Defendant made a timely appeal.

We have granted the Illinois Police Pension Fund Association (Association) leave to appeal as amicus curiae. The Association argues that an applicant for membership in a pension fund has no property interest in the fund and that an applicant whose application was previously denied is precluded from reapplying for admission into the fund at a later date.

The first issue for review is whether the trial court erred in denying defendant’s motion to dismiss. Defendant argues that the trial court did not have jurisdiction to hear the action since plaintiff failed to file his complaint for administrative review within 35 days after receiving the July 11, 1985, certified letter from defendant denying his application. Plaintiff responds that the trial court properly denied defendant’s motion based on the court’s finding that the filing requirement was tolled because the Board’s July 11 letter denied plaintiff due process.

Our disposition of this appeal is controlled by application of the filing period requirement contained in section 3 — 103 of the Administrative Review Law (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3— 103) and consideration of plaintiff’s due process arguments. We first address the filing time requirement.

Section 3 — 148 of the Pension Code provides that the Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103 et seq.) will govern judicial reviews of pension-related administrative actions. (Ill. Rev. Stat. 1987, ch. 108V2, par. 3 — 148; see Board of Trustees of the Police Pension Fund v. Washburn (1987), 153 Ill. App. 3d 482, 485.) Two sections of the Act apply here. Section 3 — 102, entitled “Scope of Article,” states in pertinent part:

“Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 102.)

Section 3 — 103, entitled “Commencement of Action,” provides:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.

Defendant correctly notes that the 35-day filing period requirement is jurisdictional; “if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred.” (Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 354-55, citing Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 211; see also Spicer, Inc. v. Regional Board of School Trustees (1991), 212 Ill. App. 3d 16, 19.) While plaintiff characterizes the 35-day filing requirement as a “relatively brief *** limitation period,” Illinois courts have long enforced this requirement, the purpose of which is to “ ‘hasten the procedure’ of administrative review and avoid undue delay.” (Lockett, 133 Ill. 2d at 355.) We note, parenthetically, that in contrast the 35-day period for the issuance of summons is mandatory, not jurisdictional, and failure to comply with that requirement will not deprive the court of jurisdiction. (Lockett, 133 Ill. 2d at 355; see City National Bank & Trust Co. v. Property Tax Appeal Board, (1983), 97 Ill. 2d 378, 381-82; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403-04 (in both cases, the supreme court relaxed the 35-day filing requirement where plaintiffs had timely filed their complaints for administrative review and summons with the clerk of the circuit court but, due to problems at the clerk’s office beyond plaintiff’s control, the summonses were not issued until after the 35-day period expired).) We further note that, although the procedural rules of an administrative agency may provide for an extension of time beyond the 35-day filing period provided under the Act, the Pension Code does not do so. Rossler v. Morton Grove Police Pension Board (1989), 178 Ill. App. 3d 769, 774.

In the case at bar, plaintiff waited 33 months after his application was denied in July 1985 before asking the Pension Board in March 1988 for what was essentially a rehearing of the same matter. Plaintiff wanted the Board to reconsider its earlier denial of his application for membership in the fund. We agree with defendant and the Association that a rehearing is not provided for in the Pension Code. (See Rossler, 178 Ill. App. 3d at 774 (Pension Code provides no authority for pension boards to conduct a rehearing of a matter previously decided after the expiration of the 35-day filing period for an appeal); see also People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 1112 (as administrative agencies are creatures of statute, they may allow rehearings or modify or alter their decisions only when authorized to do so by statute).) We conclude that on these facts, and under a plain reading of section 3 — 103 of the Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103), plaintiff has not complied with the 35-day filing requirement for seeking judicial review of an administrative action. We therefore initially conclude that, saving plaintiff’s due process concerns for later discussion, the trial court erred in denying defendant’s motion to strike and dismiss plaintiff’s complaint.

Our conclusion that plaintiff is barred from seeking review of the Pension Board’s decision does not conflict with the first district’s opinion in Johnson v. State Employees Retirement System (1987), 155 Ill. App. 3d 616, relied upon by the trial judge in the instant case. Discussion of the Johnson case, however, necessarily involves a discussion of procedural due process and how it applies, if at all, to a party such as plaintiff who applies for membership in a pension fund. Therefore, we next consider the due process considerations raised by plaintiff.

At issue is whether plaintiff had a property interest in the pension fund such that procedural due process applied and, if so, whether the proceedings of the Pension Board, in particular the July 11 letter, denied plaintiff due process of law. We agree with defendant and the Association that, as an applicant, plaintiff did not have a property interest in the pension fund and that procedural due process in the Pension Board’s proceedings was therefore not required.

A discussion of the two cases invoked by the trial judge in his letter opinion denying defendant’s motion will aid our resolution of this issue. The issue in Johnson v. State Employees Retirement System (1987), 155 Ill. App. 3d 616, was whether the State Employees Retirement System’s notice of their decision denying plaintiff survivor’s benefits, which failed to inform plaintiff of his right to appeal the decision and the 35-day limit for filing an appeal, denied plaintiff due process. (Johnson, 155 Ill. App. 3d at 617.) The plaintiff in Johnson, a widower seeking survivor’s benefits based on his deceased wife’s State of Illinois retirement plan, filed a complaint for administrative review 55 days after he was denied benefits. (Johnson, 155 Ill. App. 3d at 617-18.) The court found the State’s notice “constitutionally inadequate because it failed to inform [plaintiff] of his right to appeal and the time period for so doing” and as a result “the defective notice tolled the statutory 35-day filing period.” (Johnson, 155 Ill. App. 3d at 619.) The dissent, however, argued that while “the better practice would be for the agency to include the information regarding the 35-day limit for filing an appeal in its notice of decision,” the failure of the agency to include such information in the notice did not rise to the level of a constitutional violation. Johnson, 155 Ill. App. 3d at 620 (Jiganti, J., dissenting).

At issue in Nelson v. Board of Trustees (1986), 141 Ill. App. 3d 411, was whether a local police pension board violated the due process right of the plaintiff-applicant by rejecting his application for admission into the fund without granting him a hearing. (Nelson, 141 Ill. App. 3d at 412.) The 35-day filing period was not at issue. The court held that neither section 3 — 106 of the Pension Code (Ill. Rev. Stat. 1983, ch. 108x/2, par. 3 — 106) nor constitutional due process requires the pension board to hold a hearing to determine whether an applicant is qualified. (Nelson, 141 Ill. App. 3d at 414-15.) The court quoted from Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701, a leading case on procedural due process, where the United States Supreme Court stated:

“ ‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’ ” (Nelson, 141 Ill. App. 3d at 415, quoting Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.)

The court concluded that the applicant was not denied due process because he never obtained a property interest since he never became a member of the fund. (Nelson, 141 Ill. App. 3d at 415.) Instead, the court found that the applicant had at most a “unilateral expectation that he would become a member of the fund.” Nelson, 141 Ill. App. 3d at 415.

In the instant case, we agree with defendant that the trial judge’s reliance on Johnson is misplaced. This court prefers a narrow reading of the holding in Johnson: that a vested applicant who is denied benefits by an agency must, under due process of law, receive notice apprising him of his right to appeal and the 35-day filing requirement. We find Nelson instructive in this regard as it provides the proper test, as stated in Board of Regents v. Roth, for determining when a person has a property interest in a benefit, such that procedural due process is required.

The due process concerns raised in Johnson, where the applicant was seeking administrative review following the denial of vested benefits, are not relevant to the instant case where plaintiff had a mere expectancy that he would become a member of the pension fund. We note that plaintiff acknowledged this fact on March 25, 1985, when he signed the City of Aurora document that said in essence that plaintiff knew and understood that his job as a police officer was contingent and that final determination of his fitness for the position had not yet been made by the Aurora Police Pension Board. The Pension Board made a final determination of plaintiff’s fitness to be a police officer on July 2, 1985, at which time the Board unanimously denied plaintiff’s application. Plaintiff failed to appeal within the statutory 35-day period after receiving the Board’s letter of July 11, 1985, denying his application. Administrative review of the Board’s decision is barred. The trial court was therefore without jurisdiction to hear the cause and erred in denying defendant’s motion to dismiss plaintiff’s complaint for administrative review. The trial court incorrectly found that plaintiff had a property interest in the pension fund such that procedural due process applied.

Plaintiff presents a variety of different arguments as to why he should be afforded procedural due process under the facts of the case. Each argument, however, fails. Plaintiff first argues that the Illinois legislature has indicated that his application for membership in the pension fund involves a significant interest warranting the protections of due process. We fail, however, to find any statutory authority, in plaintiff’s brief or by our own research, to support the premise that an applicant for pension fund membership has a property interest in the fund such that procedural due process is required. (See Nelson, 141 Ill. App. 3d at 415.) Plaintiff also argues that both Congress (citing the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1001 et seq. (1988)) and the United States Supreme Court (citing Goldberg v. Kelly (1970), 397 U.S. 254, 262 n.8, 25 L. Ed. 2d 287, 295 n.8, 90 S. Ct. 1011, 1017 n.8) have acknowledged “the importance that pensions play in society” such that pension rights must be accorded special attention. This argument lacks merit as applied to the instant case in that both the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1001 et seq. (1988)) and footnote 8 of the Goldberg decision were referring to vested pension rights, of which plaintiff has none. See Nelson, 141 Ill. App. 3d at 415.

Plaintiff next argues that the Pension Board is using the Administrative Review Law as a shield from judicial scrutiny. Rather than the Board using the Act as a shield, we believe this case stands for the proposition that plaintiff could have used the Act as a sword to open the Board’s proceedings to judicial review if plaintiff had filed a complaint for administrative review within 35 days of receiving the notice denying his application. (See Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.) Plaintiff also argues that the Pension Board’s proceedings are effectively immune from review and that the Board is improperly using “permanent irrebuttable arguments” that diabetics are unfit to be police officers. We find that these arguments have no merit for the same reason that we rejected plaintiff’s last argument.

Plaintiff next equates his application for membership in the pension fund with an entitlement, for which he argues procedural due process is required. We reject the proposition that plaintiff’s application gave rise to an “entitlement,” defined in Black’s Law Dictionary as “[rjight to benefits, income or property which may not be abridged without due process.” (Black’s Law Dictionary 477 (5th ed. 1979).) Plaintiff had no rights in the pension fund (see Nelson, 141 Ill. App. 3d at 415); the very basis for this whole proceeding was plaintiff’s application for membership rights in the fund.

Plaintiff next argues that he met all of the criteria for being a “police officer” as defined in section 3 — 106 of the Pension Code (Ill. Rev. Stat. 1987, ch. IO8V2, par. 3 — 106) and should therefore be entitled to pension benefits since section 3 — 101 of the Pension Code provides that “the board of trustees *** shall establish and administer a police pension fund *** for the benefit of its police officers.” (Ill. Rev. Stat. 1987, ch. 1081/2, par. 3 — 101.) This argument fails because the language in section 3 — 101 is clearly addressed to the board’s duty to manage a pension fund for police officers who are members. Plaintiff is not a member.

Plaintiff also argues that the legislature has not expressly granted police pension boards the authority to select the pension fund’s participants. We find that such an argument vitiates the letter and spirit of the Pension Act, which provides pension boards with authority to “control and manage the pension fund.” (Ill. Rev. Stat. 1987, ch. 1081/2, par. 3 — 132.) Such an argument is also contrary to case law construing and interpreting the Pension Code. (See, e.g., Nelson, 141 Ill. App. 3d at 414 (due to their personal knowledge of the' peculiar physical and emotional demands of being a policeman, the members of the board determine whether an applicant is qualified for membership); Board of Trustees of the Police Pension Fund v. Illinois Human Rights Comm’n (1986), 141 Ill. App. 3d 447, 453 (Pension Code vests board with exclusive authority to determine eligibility to participate in pension fund, and such authority does not conflict with the Illinois Human Rights Act); Sanders v. Board of Trustees of the City of Springfield Police Pension Fund (1983), 112 Ill. App. 3d 1087, 1091-92 (eligibility for pension fund membership best left to the sound determination of the board of trustees).)

Plaintiff finally appears to argue that he developed a property right in the pension fund by working as an Aurora police officer since 1985. While this argument has appeal, this court finds that no such property right developed since during this period plaintiff was not a member. (See Nelson, 141 Ill. App. 3d at 415.) We again note that prior to his employment commencing, plaintiff signed a document on March 25, 1985, which indicated that he realized that his job was contingent on later approval by the Pension Board.

Because we find defendant’s jurisdictional argument dispositive on this appeal, we need not address plaintiff’s or defendant’s remaining arguments.

For the foregoing reasons, the judgment of the trial court is vacated.

Judgment vacated.

MCLAREN and BOWMAN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS GARCIA, JR., Defendant-Appellant.
    Second District
    No. 2 — 90—0035
    Opinion filed August 9, 1991.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Steven Della Rose, of Dolton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Carlos Garcia, Jr., was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, pars. 1401(aX2), 1401.1). He was sentenced to a 10-year term of imprisonment and an $8,500 fine. On appeal, he argues that there is insufficient evidence to support the $8,500 fine, that he is entitled to $5-per-day credit for his time in jail awaiting trial, and that his 10-year sentence is excessive. We affirm, as modified.

In his first argument, the defendant relies upon several cases based on section 5 — 9—1.1 of the Unified Code of Corrections, under which he was sentenced. That section provides that when a person has been convicted of certain drug offenses, “in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1.1.) The defendant argues on appeal that his $8,500 fine should be reduced to $4,200, the amount the undercover police officer here agreed to pay for the substance which contained cocaine. He argues that there was no evidence to support the court’s apparent use of a $100-per-gram “street value” for the cocaine when it calculated the fine.

The State argues that the plain language of section 5 — 9—1.1 mandates only a minimum fine, a fine “not less than the full street value.” According to the State, the trial court was entitled to impose a fine greater than the relevant street value and there was no error in its imposition of such a fine.

A number of appellate and supreme court cases have addressed the propriety of particular “street value” fines under section 5 — 9— 1.1. The various other appellate districts have suggested, if not explicitly held, that section 5 — 9—1.1 provides for a mandatory fine equal to the demonstrated street value of the substance at issue. (See People v. Carrasquilla (1st Dist. 1988), 167 Ill. App. 3d 1069, 1080; People v. Beavers (3d Dist. 1986), 141 Ill. App. 3d 790, 796; People v. Taliferro (4th Dist. 1988), 166 Ill. App. 3d 861, 866; People v. Morse (5th Dist. 1989), 185 Ill. App. 3d 503, 509-10.) In the second district, however, we have followed the reasoning urged here by the State, holding that section 5 — 9—1.1 mandates only a minimum “street value” fine. People v. Pehrson (1989), 190 Ill. App. 3d 928, 933.

This court’s view in Pehrson is consistent with the plain language of section 5 — 9—1.1. (In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 120.) It also is consistent with our supreme court’s comments on the statute. (People v. Lusietto (1989), 131 Ill. 2d 51, 56.) We find no reason to divert from our decision in Pehrson. Under that case, we find no error in the court’s fine here. It is not less than the lowest “street value” evidenced, and we find that it complies with the mandate of section 5 — 9—-1.1.

The defendant’s second argument on appeal is that he is entitled to a $115 credit against his fine for the 23 days that he served in jail awaiting trial. The State concedes that the defendant is entitled to the $5-per-day credit provided under section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14). With reference to People v. Hare (1988), 119 Ill. 2d 441, we agree and modify the defendant’s sentence accordingly.

The defendant’s third argument on appeal is that he was erroneously sentenced to a 10-year term of imprisonment for his offense; that offense is subject to a sentence between 9 and 40 years (Ill. Rev. Stat. 1989, ch. 561 k, par. 1401(a)(2)(B)). The defendant argues that he is entitled to the minimum sentence. He emphasizes that he is educated and has been working at his chosen profession, that he has no prior record, and that the evidence showed he participated only minimally in the offense. The defendant also argues that the sentencing court erroneously considered in aggravation the amount of cocaine involved here and his refusal to admit guilt.

Sentencing is a matter for the trial court’s discretion; we will not disturb a sentencing decision absent an abuse of that discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 156.

The record here shows that the trial court judge recognized substantial factors mitigating the defendant’s sentence. The court specifically named the defendant’s absence of a prior record, his educational achievement, and his apparent lesser role in the offense. However, the court also expressed its conclusion that the defendant had been actively involved in the offense and that the defendant was untruthful both before the jury and in his statement for the probation report.

We find no abuse of discretion in the court’s sentence to a term of imprisonment only one year more than the minimum within the statutory 32-year sentencing range. The court could properly rely in aggravation upon the fact that the offense involved an amount of cocaine greater than the minimum amount covered by the statute. (See People v. Saldivar (1986), 113 Ill. 2d 256, 269-71.) Further, we find no error in the court’s consideration of the defendant’s attitude and truthfulness in connection with his denial of guilt. (See People v. Ward (1986), 113 Ill. 2d 516, 528; People v. McBounds (1989), 182 Ill. App. 3d 1002, 1018.) The record shows that the court thoroughly considered all relevant factors, including those in mitigation. (People v. LaPointe (1981), 88 Ill. 2d 482, 493.) Based on the foregoing, we modify the judgment of the circuit court of Du Page County to grant the defendant $115 credit against his fine. We affirm, then, the judgment as modified.

Affirmed as modified.

INGLIS and BOWMAN, JJ., concur.