author: PRESIDING JUSTICE INGLIS

text:
    KENNETH ABBOTT et al., Plaintiffs-Appellants, v. AMOCO OIL COMPANY, Defendant-Appellee.
    Second District
    No. 2—92—1275
    Opinion filed August 18, 1993.

      Mark A. LaMantia, of Farrell & Barr, of Rosemont, for appellants.
    Richard C. Godfrey and David J. Zott, both of Kirkland & Ellis, and William J. Noble, both of Chicago, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

In this case, a large group of gasoline retailers (the dealers) who sell Amoco brand products sued Amoco alleging breach of contract. Specifically, the dealers claimed that Amoco violated express promises it made to them in conjunction with Amoco’s “Discount for Cash” program, that Amoco, alternatively, violated the implied covenant of good faith and fair dealing with regard to gasoline pricing, and that Amoco breached either its express or implied obligations with regard to the rent it charged the dealers. The circuit court of Du Page County dismissed the complaint with prejudice under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 1992)) as being substantially insufficient in law. The dealers appealed, and we affirm.

The dealers’ complaint alleges that they all are located in a geographic area delineated by Amoco and known as the Chicago District. The dealers were required to execute various forms drafted by Amoco in order to become franchisees, and the terms of the documents were not negotiable. The dealers allege that the price they were to pay for gasoline was not fixed. Instruments known as “Dealer Supply Agreements” (DSA’s) executed by the dealers provide, “The price for motor fuels purchased by Dealer from Amoco hereunder, shall be Amoco’s dealer buying price for each respective grade of said products in effect in Amoco’s pricing area in which the above-identified motor fuel sales facility is located at the time when title to said products passes from Amoco to Dealer.”

The dealers further allege that until 1982, Amoco represented that the price of gas to dealers took into account the cost of credit, including the costs of Amoco’s credit card program. In 1982, Amoco began to implement its discount for cash program, which the dealers were allegedly required to accept. Under the program, it is claimed that Amoco made the dealers pay a credit card fee for each Amoco credit card purchase occurring at the dealers’ respective stations. However, Amoco also promised the dealers a discount in the cost of gas to reflect the removal of the cost of credit from the gas prices. Amoco allegedly told the dealers that the discount for cash program was designed to “unbundle” the cost of credit from the price of gasoline to dealers and that the dealers could then offer a discount on the price of gas to retail customers who paid with cash, allowing the dealers to become more competitive in the growing cash purchase market. The dealers claim in their first count that Amoco then failed to “realistically and meaningfully provide the promised price discounts” and that Amoco hid its breaches “through a variety of pricing techniques and policies.”

In their second count, the dealers allege that Amoco’s actions with regard to the pricing of gasoline violated the implied covenant of good faith and fair dealing implicit in the DSA’s.

In the third count, the dealers allege that they are required to lease their stations from Amoco pursuant to written leases. They claim that, since 1982, Amoco has represented to them that rents would be based on the fair-market or investment value of the facilities and improvements. The dealers assumed that Amoco would act in good faith in setting the rental values and claimed that Amoco represented to them that the rentals would be so calculated. The dealers allege that Amoco failed to disclose to them the manner in which it calculated rent and that Amoco charged them for capital improvements that had never existed at the stations, had been removed, had been fully depreciated, were owned by the dealers, or were otherwise charged for under separate agreements. The dealers also claim that Amoco unfairly charged them for signs which were supposed to be loaned to the dealers without charge, that Amoco duplicated service bay and car wash charges, and that Amoco made dealers pay for things such as property taxes and maintenance fees which either were not incurred or were covered in other charges. The dealers allege that these actions by Amoco constitute a breach of contract or a violation of Amoco’s duty of good faith and fair dealing.

The dealers did not append any written instruments to their complaint when it was first filed, which violated section 2 — 606 of the Code of Civil Procedure (735 ILCS 5/2 — 606 (West 1992)). The circuit court then ordered the dealers to execute an affidavit repeating their claim that the signed copies of the documents at issue were in the hands of Amoco and “point forth with some degree of specificity which agreement or agreements they are relying upon.” The dealers’ attorney responded with an affidavit reciting his experience in similar lawsuits, reiterating the dealers’ claims, and referring the court to documents filed in other cases alleged to be sufficient to spell out representations made by Amoco to the dealers here.

The court found this affidavit insufficient and allowed the dealers to file another affidavit. The dealers then submitted various documents and affidavits. Amoco moved to dismiss the complaint as being substantially insufficient at law (735 ILCS 5/2 — 615 (West 1992)). The court granted the motion to dismiss, finding that the contracts between the dealers and Amoco gave Amoco discretion to set gas prices and rents, that the contracts would not be rewritten, and that Illinois does not recognize a cause of action founded upon a breach of the implied covenant of good faith and fair dealing.

On appeal, the dealers argue that the trial judge did not apply the proper standards for deciding motions brought under section 2 — 615, that the order dismissing the complaint is internally inconsistent and makes unwarranted and unsupported factual assumptions, that counts I and II of the complaint state viable alternative causes of action, and that the dismissal of count III was improper in light of section 2 — 615 standards and the decisions of other courts.

Amoco argues on appeal that the trial judge properly applied section 2 — 615 standards below, that the dealers’ breach of contract claims contradict the unambiguous terms of the parties’ integrated contracts, and that Illinois law does not recognize an independent cause of action for breach of the implied covenant of good faith and fair dealing.

SECTION 2-615 STANDARDS

The dealers’ first argument on appeal is that the trial judge disregarded the proper standards for deciding a section 2 — 615 motion when dismissing the dealers’ complaint. The dealers argue that the trial judge should have addressed the adhesionary aspects of the DSA’s. The dealers also find fault with the court’s determining that it had to limit its interpretation' of the contracts at issue to the contracts’ four corners and its simultaneous finding that the parties understood that the nature of the petroleum market made volatile price fluctuations necessary. The dealers also complain that the contracts at issue did not confer upon Amoco the right to employ cash discount programs, as the trial court found was within Amoco’s authority to set fuel prices. The dealers argue further that the court should not have disregarded certain communications in the record from Amoco to various dealers notifying the dealers that Amoco was reducing the processing fee on credit card tickets to 3% and setting the gallonage discount for the Midwest region at 2.1 cents per gallon. The dealers claim that these communications support counts I and II of their complaint. Finally, the dealers argue that the court, when dismissing count III, should not have ignored the adhesionary aspects of the leases or the proceedings in separate but similar cases brought against Amoco.

Pleadings are to be liberally construed so as to do justice between the opposing parties when considering a motion to dismiss. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17.) Further, exhibits attached to a complaint become part of the pleadings, and factual matters in such exhibits which are at odds with a complaint’s allegations control over those conflicting allegations. (Outboard Marine Corp. v. James Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 245.) A motion to dismiss does not admit allegations in a complaint that are negated by conflicting facts in an attached exhibit. Outboard Marine, 133 Ill. App. 3d at 245.

This court recently set forth the standards to be followed with regard to appeals from section 2 — 615 dismissals:

“For purposes of the appeal of the dismissal pursuant to section 2 — 615, all well-pleaded facts within the four comers of the amended complaint are regarded as admitted and true, together with all reasonable inferences drawn in the light most favorable to the plaintiffs. [Citation.] An appeal from a section 2 — 615 dismissal for failure to state a cause of action reviews only the question of the legal sufficiency of the complaint, by ascertaining whether the essential elements of the cause of action were alleged. [Citation.] The ultimate facts to be proved must be alleged, and any evidentiary support or conclusions drawn from the allegations should not be considered in a section 2 — 615 motion. [Citation.] Therefore, a motion to dismiss for failure to state a cause of action should be affirmed on appeal only where no set of facts can be proved under [the] pleadings which set forth a cause of action entitling the plaintiff to relief.” Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 9.

The circuit court stated in its final order that the dealers’ claims were without merit and that amendments would be ineffective. We believe that the circuit court’s decision was correct, notwithstanding the alleged procedural errors it made. Consequently, we will not discuss the dealers’ procedural arguments, but will address the issue of whether sufficient legal claims were set out.

BREACH OF CONTRACT-PRICING

The DSA’s signed by Amoco and the dealers require the dealers to pay Amoco for gasoline at “Amoco’s dealer buying price for each respective grade of said products in effect in Amoco’s pricing area in which the above-identified motor fuel sales facility is located at the time when title to said products passes from Amoco to Dealer.” The DSA’s further provide:

“This Dealer Supply Agreement cancels and supersedes all prior written or unwritten agreements and understandings between the parties pertaining to the matters covered in this Agreement. No obligations, agreement [sic] or understandings shall be implied from any of the terms and provisions of this Agreement, all obligations, agreements and understandings with respect to the subject matter hereof being expressly set forth herein. No representations or statements, other than those expressly set forth herein, were relied upon by the parties in entering in [sic] this Agreement. No modification or waiver of, addition to, or deletion from the terms of this Agreement shall be effective unless reduced to writing and signed by Dealer and a representative of Amoco authorized to execute this Agreement.”

The dealers’ claim here is that Amoco promised them a discount in the price of gas to offset credit fees Amoco began to charge on credit card transactions and that Amoco then failed to provide the discounts in a “realistic” and “meaningful” manner, meaning that the dealers thought that Amoco’s gas was still priced too high, even after the application of the discount. Thus, the dealers argue, essentially, that Amoco charged too much for its gasoline. This claim is directly contrary to both the integration clause and the provisions of the DSA’s allowing Amoco to charge the dealers the price for gasoline in effect in the dealers’ geographic area at the time the dealers take title to the gas. In order to escape the language of the DSA’s, the dealers argue that the DSA’s are adhesion contracts and that the integration clauses should thus be ignored.

A contract of adhesion is “ ‘a standardized contract prepared entirely by one party, and which, due to the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected by the second party on a “take it or leave it” basis without opportunity for bargaining and under such conditions that the second party or “adherer” cannot obtain the desired product or service save by acquiescing in the form of the agreement.’ ” Star Finance Corp. v. McGee (1975), 27 Ill. App. 3d 421, 426, quoting Walnut Creek Pipe Distributors, Inc. v. Gates Rubber Co. Sales Division, Inc. (1964), 228 Cal. App. 2d 810, 814-15, 39 Cal. Rptr. 767, 771.

The dealers assert that the DSA’s meet the test for contracts of adhesion because they had no say in any of the terms of the agreement and they were required to accept Amoco’s terms if they wanted to become franchisees. However, even if the DSA’s are adhesion contracts, it does not follow that they are unenforceable. Rather, contracts of adhesion are generally lawful (Methodist Medical Center v. Taylor (1986), 140 Ill. App. 3d 713, 719) and “mere disparity of bargaining power is not sufficient grounds to vitiate contractual obligations.” (Streams Sports Club, Inc. v. Richmond (1983), 99 Ill. 2d 182, 191.) Something beyond adhesion is required to subject a contract to judicial scrutiny. As was stated in Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 1046, “Courts declare adhesion contracts unlawful because the party in the superior bargaining position has taken unfair advantage of the ‘adherer’ by making the desired product available only if the weaker party accedes to the form of the contract.” We agree with Eisele that unfair advantage is the key to differentiating between the types of adhesion contracts, but we do not agree with Eisele’s implication that the remedy upon finding an onerous provision in an adhesion contract is to render the entire contract unlawful. Clearly, some contracts may be so one-sided as to be utterly unenforceable. (See Streams Sports Club, 99 Ill. 2d at 191.) However, we agree with courts which have implied that, generally, burdensome clauses in adhesion contracts should be construed against the more powerful party. Methodist Medical Center, 140 Ill. App. 3d at 719, citing Star Finance, 27 Ill. App. 3d 421.

We do not believe that the dealers have sufficiently pleaded that the DSA’s are unfair contracts of adhesion. The dealers have not alleged, for example, how they were damaged beyond the loss of the promised discounts or how Amoco’s prices or pricing terms compared with those of other oil companies. Thus, the dealers’ assertion that the DSA’s are inequitable adhesion contracts is a conclusory allegation unsupported by other factual allegations and is not deemed admitted for purposes of a section 2 — 615 motion to dismiss. Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145.

Absent an adhesionary aspect, we are left with contracts that are clear in their terms and which the dealers do not argue are ambiguous. A court must enforce a contract as written and may not rewrite it to suit one of the parties. (Gladstone v. McHenry Medical Group (1990), 197 Ill. App. 3d 194, 203-04.) As written by Amoco and agreed to by the dealers, the DSA’s, by virtue of their clear language and their integration clauses, embody the entire price agreement between Amoco and the dealers. Since Amoco could set the price for gasoline, it could logically offer a discount to its dealers as part of its pricing policy. Moreover, as previously noted, the dealers’ argument that no “meaningful” or “realistic” discount was given to them actually focuses on the price they paid Amoco for gasoline — a price they now claim is too high. This claim is foreclosed by the DSA’s.

IMPLIED COVENANT-PRICING

The dealers argue in the alternative that Amoco violated the covenant of good faith and fair dealing implicit in all contracts in Illinois when Amoco failed to provide the dealers with the promised discount in any “realistic” or “meaningful” manner. The dealers claim that the price provision was an open term that Amoco had discretion in filling, and that Amoco was bound to calculate the price in a manner consistent with the parties’ expectations in entering into their relationship— that they would both make a reasonable profit.

Amoco argues that Illinois does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing. Amoco claims that the implied covenant is merely a principle of contract interpretation that does not apply here due to the unambiguous nature of the DSA’s.

There is a duty of good faith and fair dealing included in every contract as a matter of law in Illinois. (Powers v. Delnor Hospital (1985), 135 Ill. App. 3d 317, 321.) The duty limits the manner in which a party who is vested with discretion under the contract may exercise it by requiring that party to “exercise that discretion reasonably and with proper motive, *** not *** arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties.” Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 990-91, criticized, Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd. (7th Cir. 1992), 970 F.2d 273.

We need not decide whether Illinois law permits an independent cause of action for breach of the implied covenant of good faith and fair dealing in a situation such as this. Even if a cause of action is viable, the dealers have failed to state a claim here. In a contractual relationship like the one between Amoco and the dealers, where the dealers are forced to pay Amoco a gasoline price set by and subject to modification by Amoco, and where both Amoco and the dealers seek to maximize their profits, any increase in gas prices by Amoco will affect the dealers adversely. This cause and effect relationship is obvious. Thus, the dealers cannot complain when Amoco merely exercises the discretion the dealers allowed Amoco to possess. Bad faith or unfairness needs to be pleaded affirmatively in a case like the present one.

The dealers do not include in their pleading any factual allegations which would support their claim that Amoco acted unfairly or in bad faith when setting its gasoline prices. For example, they do not allege that they have been driven out of business or even placed in financial trouble by Amoco’s prices. They do not allege that Amoco’s pricing policies or prices were out of line with those of other oil companies. They do not allege that there could not have been legitimate business reasons for Amoco’s actions. (See, e.g., Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30 (savings and loan’s rejection of reasonable market appraisal of real estate because appraisal was too low to allow it “to bail out of a mortgage loan long since gone sour” violated implied covenant).) The dealers simply seek to recover a discount allegedly promised to them and then limited or negated by Amoco’s pricing decisions. We believe that allegations of an unexpectedly high price, without more, do not state a claim for breach of the implied covenant of good faith and fair dealing in light of the contractual terms at issue in this case.

The case of Continental Mobile Telephone Co. v. Chicago S M S A Ltd. Partnership (1992), 225 Ill. App. 3d 317, is instructive on this issue. In Continental, an independent reseller of cellular telephone service sued the cellular telephone transmission system operator from which the reseller purchased mobile telephone service alleging, inter alia, breach of the implied covenant of good faith and fair dealing. The reseller and the operator had signed a contract in which the operator was given the right to revise its rates and charges in its sole discretion. (Continental, 225 Ill. App. 3d at 320-21.) The operator later changed its rates, which had a detrimental effect on the reseller. (Continental, 225 Ill. App. 3d at 321-22.) The appellate court, affirming the trial court’s dismissal of the reseller’s count alleging breach of the implied covenant of good faith and fair dealing, held that no such claim was stated because both parties were aware at the outset that the operator could raise its rates whenever it chose to do so. (Continental, 225 Ill. App. 3d at 324.) The parties’ awareness of the operator’s rights under the contract “negatjed] any inference that [the operator’s] actions were outside the contemplation of the parties and could be characterized as a breach of good faith.” Continental, 225 Ill. App. 3d at 324.

Likewise, in this case, the dealers were aware at the time they signed their DSA’s that Amoco was reserving the right to set the price in the area in which the dealers were located. The DSA’s said nothing about the discount for cash program or any representations made thereunder, even though the DSA’s in the record were executed years after the only documents in the record that mention a discount offered to the dealers by Amoco.

The dealers’ claim is virtually undistinguishable from the claim made by the reseller in Continental. It is similarly without merit. The dealers distinguish Continental because in that case the reseller and the operator actively negotiated the contract at issue (Continental, 225 Ill. App. 3d at 320), while here the dealers could not negotiate the terms of the DSA’s. While this factor is one to be considered, we are not convinced that it is determinative of the issue of whether a claim for breach of the implied covenant of good faith and fair dealing has been stated. Although the dealers had to accept Amoco’s terms in order to become Amoco franchisees, the dealers presumably had other choices as to franchisors in the retail gasoline business.

Moreover, use of the implied covenant as a construction aid in determining the contracting parties’ intent (see Anderson v. Burton Associates, Ltd. (1991), 218 Ill. App. 3d 261, 267) does not help the dealers, as we have previously found the DSA’s to be unambiguous, negating the need for interpretive rules. (T D C Development Corp. v. First Federal Savings & Loan Association (1990), 204 Ill. App. 3d 170, 175.) Further, “contract terms implied in law cannot supplant express contract terms.” Foster Enterprises, 97 Ill. App. 3d at 31.

BREACH OF CONTRACT-RENT

In count III of their complaint, the dealers allege that, since 1982, Amoco promised and represented to them that the rents it set in its leases would be based on the fair-market/investment value of the land and improvements at the leased facilities. Subsequently, the dealers allege, Amoco failed to disclose information regarding the components of its rental charges; charged the dealers for capital improvements that had never existed at the property, had been removed, had been fully depreciated, were owned by the dealers, or were charged for under separate agreements; charged the dealers for signs which were supposed to be loaned free of charge; imposed duplicate charges for service bays and car washes; and required the dealers to pay for items such as property taxes and maintenance fees which were never incurred or were already reflected in other charges. The dealers claim their rental overpayments, with interest, as damages.

Amoco responds that the express language of the leases executed by the dealers contradicts the dealers’ claims. We agree.

The form leases executed by the dealers simply state an amount that a dealer must pay to Amoco as rent for its facility. The lease does not state the basis on which the rental charge is determined or what components are included in the rent. The clause following the rental clause states:

“In the event that the original term of this Lease is for more than one year, each year of said term Lessor reserves the right to modify the monthly rental specified above to conform with Lessor’s established policy rental in effect for this type of facility as of each anniversary date of the commencement of the term by giving Lessee at least ninety (90) days’ advance written notice of such changed rental, and Lessee shall have the right at any time during said ninety (90) day period to terminate this Lease upon giving Lessor fifteen (15) days’ notice in writing.”

Towards the end of the lease, there is an integration clause which states as follows:

“This Lease cancels and supersedes all prior written and unwritten agreements and understandings between the parties pertaining to the matters covered in this Lease. No obligations, agreement [sic] or understandings shall be implied from any of the terms and provisions of this Lease, all obligations, agreements and understandings with respect to the subject matter hereof being expressly set forth herein. No representations or statements, other than those expressly set forth herein, were relied upon by the parties in entering into this Lease. No modification or waiver of, addition to, or deletion from the terms of this Lease shall be effective unless reduced to writing and signed by Lessee and a representative of Lessor authorized to execute this Lease.”

The dealers do not bring to our attention any documents in which Amoco made any of the representations that the dealers rely upon in bringing this count. Neither do the dealers state whether the representations were written or oral. An examination of the quoted portions of the lease shows that the dealers’ allegations are directly inconsistent with the language of the leases. Moreover, the lease language is not ambiguous, and the dealers do not argue that it is.

As we previously stated, an unambiguous contract must be enforced as it is written. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 748.) “Furthermore, a court may not add provisions to an unambiguous contract even if these make the contract more equitable.” Beals, 194 Ill. App. 3d at 748.

Under the leases here, the dealers clearly agreed to pay Amoco a specified rental charge for their dealer facilities. They also allowed Amoco to modify the rent in future years under certain circumstances. Now, the dealers seek to read more terms into the leases in order to relieve themselves of the burden of what they apparently perceive to be bad bargains. This the law does not allow them to do. See National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 1049.

Nor have the dealers adequately pleaded that the leases are adhesion contracts. The leases are very similar to the DSA’s in that the dealers agreed to pay a price set by Amoco that Amoco had discretion to change. We previously found that the dealers had not pleaded factual allegations sufficient to show that the DSA’s were adhesive, and the same reasoning applies to the dealers’ leases. Moreover, even if the leases were contracts of adhesion, such a conclusion would not necessarily lead to a determination that the leases’ integration clauses were invalid, as the dealers argue. Again, as previously stated, we believe that the fact that a contract is one of adhesion does not invalidate a contract, but is one factor to consider when construing ambiguous terms. (See Methodist Medical Center v. Taylor (1986), 140 Ill. App. 3d 713, 719.) The leases are not ambiguous.

The dealers seek to have undocumented assertions and promises vary the terms of an unambiguous contract requiring any amendments to be made in writing and specifically disavowing that any outside representations were relied upon in its execution. This is contrary to Illinois law. See Continental Mobile Telephone Co. v. Chicago S M S A Ltd. Partnership (1992), 225 Ill. App. 3d 317, 323.

IMPLIED COVENANT-RENT

Finally, the dealers allege that Amoco breached the implied covenant of good faith and fair dealing in the leases when it demanded the improper charges detailed in the preceding section. Amoco again asserts that the implied covenant gives rise to no independent cause of action, but rather is only a rule of construction which has no application to the unambiguous leases at issue.

As noted, a covenant to deal fairly and in good faith is implied in every contract in Illinois. (Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 1090.) Under this covenant, a party vested with discretion under the contract may not exercise that discretion arbitrarily or capriciously. Vincent, 183 Ill. App. 3d at 1090; Continental Mobile Telephone Co., 225 Ill. App. 3d at 324.

The dealers' leases with Amoco are substantially similar to the DSA’s at issue in the gasoline pricing claims, in that the dealers will unavoidably be injured in some way any time that Amoco raises the rent it has contractual discretion to modify. Thus, as with the implied covenant claim under the DSA’s, the dealers must sufficiently allege bad faith or unfairness on the part of Amoco in order to show a breach of the implied covenant of good faith and fair dealing as it pertains to rental charges.

The dealers have not pleaded that the rental charges caused financial trouble for their facilities or even alleged the size of the profit loss for which the overcharges were purportedly responsible. Neither have the dealers alleged that Amoco’s rental policies were out of step with those of other oil companies or comparable business concerns.

While we would agree that a plan by Amoco to profit at the dealers’ expense by double charging for fixtures or services would point to bad faith by Amoco, the dealers offer no documents or factual allegations substantiating their overcharge claims. Moreover, the dealers’ assertions that Amoco represented to them the basis on which it calculated rent or the individual charges for various fixtures are directly contradicted by the leases the dealers signed. Finally, it is not even clear whether the dealers are complaining of the initial rental rates, which Amoco set and which the dealers agreed to pay in the contract, or whether the dealers feel cheated by subsequent modifications to the rent, which were within Amoco’s discretion. In short, the dealers seem to be alleging that an additional, contractual rent agreement exists between them and Amoco, separate from the leases specifically embodying the parties’ entire agreement. As we discussed, the dealers’ breach of contract claim is foreclosed and we do not think that conclusory allegations of unfair dealing, without more, can provide the dealers with a remedy under the circumstances of this case. See Anderson v. Burton Associates, Ltd. (1991), 218 Ill. App. 3d 261, 267.

For the reasons outlined in our discussion of the implied covenant as it pertained to gasoline pricing, the dealers have failed to sufficiently allege a breach of the implied covenant of good faith and fair dealing with regard to rental charges.

The judgment of the circuit court of Du Page County dismissing the dealers’ complaint with prejudice is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. A.J. DAVINROY CONTRACTORS, Defendant-Appellee.
    Fifth District
    No. 5-91-0770
    Opinion filed August 12, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for the People.
    Robert H. Rice, of Rice Law Offices, of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The State of Illinois, through the Illinois Attorney General’s office, appeals from the denial of its complaint against defendant, A.J. Davinroy Contractors (Davinroy), wherein the State sought an injunction and monetary penalties against defendant for alleged violations of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1991, ch. 1111/2, par. 1001 et seq.). The complaint alleged that defendant had allowed large quantities of raw sewage to be discharged into Gooselake Ditch (the ditch), in violation of sections 12(a) and (f) of the Act. (Ill. Rev. Stat. 1991, ch. 1111/2, pars. 1012(a), (f).) The court, after a bench trial, entered an order denying all relief requested by the State, finding that the problem about which the State complained had been in existence for many years before defendant’s involvement, that defendant had no practical alternative other than to discharge the sewage into the ditch, and that an injunction would be moot because the defendant had already completed all work at the site. The State appeals, claiming that the trial court’s decision was against the manifest weight of the evidence under both sections 12(a) and (f). (Ill. Rev. Stat. 1991, ch. 1111/2, pars. 1012(a), (f).) For reasons more fully stated below, we reverse the trial court’s order.

Prior to the hearing, the court entered partial consent orders between the Illinois Environmental Protection Agency (agency) and the Village of Cahokia (village) and an engineering firm working for the village, Hurst-Rosche Engineers, Inc. (engineers). In exchange for the village’s agreement to cooperate in the prosecution of the case against Davinroy and payment of a $10,000 fine, the agency agreed to dismiss its case against the village for an alleged violation resulting out of the same construction project on which Davinroy was working. Similarly, the engineers were also dismissed out of the case in return for their agreement to pay a $3,500 penalty and to help prosecute the case against Davinroy.

At the hearing, Joseph Mahlandt, an engineer from the agency, testified that Davinroy was the contractor hired by the village in 1984 to repair or install several lift stations for the village’s sewer system. Davinroy did not have a permit authorizing the discharge of contaminants during that construction project. The parties stipulated to the admission of 12 exhibits which detailed Mahlandt’s inspections of the construction site and his findings regarding discharge of sewage into the ditch. Basically, the main problem with Davinroy’s work, according to Mahlandt, was that its equipment was not properly maintained so that periodically the pumps would malfunction or stop working altogether and raw sewage would ran into the ditch instead of through the sewer line to the treatment plant. The repair of the lift stations required Davinroy to bypass the normal sewer route at each construction site so that the work could be performed in a dry area. In order to bypass the normal system, pumps were used and the sewage was thereby rerouted to a main sewage line running some three miles from this construction site to the treatment plant: The contract between Davinroy and the village provided that Davinroy was to maintain the sewage flow through the lift stations as work was commenced at each station. The contract gave defendant the option of either using the existing bypass system which was already in place, since most of the lift stations were not operational by the time Davinroy began its work, or installing a system of its own. Davinroy chose to use the temporary system already in place.

Specifically, the exhibits stipulated to by the parties established that Mahlandt observed raw sewage being discharged into the ditch from construction sites trader the control of Davinroy on seven separate occasions between July 25, 1984, and May 24, 1985. On at least one occasion, Davinroy admitted to a violation and was advised to pump the sewage around the work station and into the same downstream manhole that it had been Using previously. Davinroy claimed that the sewage had always flowed into the ditch at this area of the sewer system, but Mahlandt assured Davinroy’s owner during his initial inspection of July 25, 1984, that Davinroy’s activities over the weekend of July 20 were definitely the cause of the condition of the ditch at that time, which was grayish in appearance with significant gasification. Each time Mahlandt inspected, he found that the ditch adjacent to Davinroy’s work sites was a turbid gray color and had a septic, sewage odor. Further, many of the problems were initially reported to the agency from people who lived near the ditch, rather than by the engineers, village, or Davinroy.

In addition to the memorandums from Mahlandt specifying the results of his inspections of the ditch and the construction sites, the parties also stipulated to a letter from the engineers to Davinroy, dated August 11, 1984. The letter advised that raw sewage was bypassing the sewer system and flowing directly into the ditch. It stated that Davinroy had been advised of this problem on numerous occasions in the past. According to the letter, Davinroy had agreed to rectify the problem but had not. Therefore, the letter advised Davinroy that it was in violation of its contract in that Davinroy was responsible for the operation and maintenance of the existing pumping systems in each location where its crews were working. Further, the letter advised Davinroy that its actions were violating agency regulations. Davinroy was directed to immediately begin to sterilize the ditch by using chlorine, which was to be done to the satisfaction of the agency. All costs were to be borne by Davinroy. Finally, the letter stated that Davinroy’s continued failure to comply with the engineers’ requests and the requirements of the contract between Davinroy and the village would be sufficient reason for the engineers to recommend that the village terminate the contract and deduct all expenses from payments remaining due to Davinroy.

On January 30, 1985, Mahlandt collected water samples from the ditch upstream and downstream from the construction site and also collected samples of the sewage being discharged into the ditch. The results of the tests, which were stipulated to by the parties, show that the levels of contaminants in the discharge itself as well as in the ditch just downstream from the construction site exceeded the levels allowable under agency regulations but that the contaminants were within acceptable levels upstream from the construction site.

The only other witness for the State was Dean Mcllravey, the general manager of the engineers, Hurst-Rosche. He testified that at the time Davinroy started work on the lift stations, a temporary bypass system was in place, and Davinroy chose to use that system rather than bring in its own equipment. During the period when Davinroy was working on the lift stations, Mcllravey did not believe that the main sewer line past the lift stations was damaged, but he could not specifically remember. Previously, Mahlandt had testified that he could not swear that the main sewer line was functioning properly during the time Davinroy was working on the lift stations. Mcllravey stated that during the time when Davinroy was working on the sewer, he did not know of any sewage breaks occurring in the area where Davinroy was working other than those caused by Davinroy. Finally, Mcllravey testified that it would cost about $1 million to run a bypass system from the area where Davinroy was working to the treatment plant.

The only witness for the defense was A.J. Davinroy, the owner of the company. He testified that his company had intentionally pumped raw sewage into the ditch because that practice had been followed for at least 10 years before his company began work on the sewer line. In his opinion, there was no other practical way to accomplish the job of repairing the lift stations. He further stated that he was told by the engineers that occasionally he would have to discharge sewage into the ditch and, in that event, he should contact the engineers, who would in turn contact the agency. He stated that in 1984, when his crew was working on lift station number 5, the main sewer line had collapsed in an area down the line from station 5, but he admitted that he had not observed the main sewer line at the area of the alleged collapse in 1984 or 1985. He also admitted that it would not have cost him any additional money to periodically check the pumps to assure that they were operational.

The State appeals from the trial court’s order denying all relief under the State’s complaint. The statute upon which the State relies specifies the acts that are prohibited with reference to water pollution in the State of Illinois. The sections state as follows:

“No person shall:
(a) Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act.
* * *
(f) Cause, threaten or allow the discharge of any contaminant into the waters of the State, as defined herein, including but not limited to, waters to any sewage works, or into any well or from any point source within the State, without an NPDES permit ***, or in violation of any regulations adopted by the Board or of any order adopted by the Board with respect to the NPDES program.” Ill. Rev. Stat. 1991, ch. 111½, pars. 1012(a), (f).

In deciding whether the trial court’s decision denying relief to the State is against the manifest weight of the evidence, we first look to the plain language of the statute. We find that the State proved a violation of the Act under the plain language of both section 12(a) and section 12(f). In summary, the State proved that Davinroy had discharged raw sewage, a contaminant, into Gooselake Ditch, that Davinroy had been warned many times by both the village and the engineers about the need to prevent those discharges, and that the sewage had caused unacceptable levels of pollution in the ditch past Davinroy’s work sites that were not in existence in the ditch upstream of the work site. Davinroy does not refute any of these facts. We do not believe that the statute requires more than this.

In order for this court to find that the trial court’s order is against the manifest weight of the evidence, it must appear that conclusions opposite those reached by the trial court, as the trier of fact, are clearly evident. (Phillips Petroleum Co. v. Pollution Control Board (1979), 72 Ill. App. 3d 217, 390 N.E.2d 620.) The Act is malum prohibitum-, for a violation to be found, it is not necessary to prove guilty knowledge or mens rea. Knowledge is not an element of a violation of section 12(a), and lack of knowledge is not a defense. (Ill. Rev. Stat. 1991, ch. 1111/2, par. 1012(a); Meadowlark Farms, Inc. v. Pollution Control Board (1974), 17 Ill. App. 3d 851, 308 N.E.2d 829.) Nevertheless, the fact that guilty knowledge is not a necessary element of proof under the Act does not mean that alleged polluters are under a theory of strict liability. The State must show that the alleged polluter has the capability of control over the pollution or that the alleged polluter was in control of the premises where the pollution occurred. Phillips Petroleum Co. v. Pollution Control Board (1979), 72 Ill. App. 3d 217, 390 N.E.2d 620.

“The analysis applied by courts in Illinois for determining whether an alleged polluter has violated the Act is whether the alleged polluter exercised sufficient control over the source of the pollution.” (People v. Fiorini (1991), 143 Ill. 2d 318, 346, 574 N.E.2d 612, 623.) In the case at bar, the contract between the village and Davinroy sets forth Davinroy’s responsibility for the sewer lines in the areas where its work was being done. The parties stipulated that the contract

“required Davinroy to comply with certain technical specifications which included the following:
***
Sewer flows equal to existing shall be maintained at all times during construction. The contractor shall install a temporary bypass system if required to maintain flows. The existing bypass systems or existing pump stations may be used at the contractor’s option instead of installing new bypass pumping systems; however, the contractor shall be responsible for the operation and maintenance of the existing pumping system at the particular location once excavation begins at that location.” (Emphasis added.)

Two cases that concern the level of control required for a violation of section 12(a) are instructive. First, Phillips Petroleum scrutinizes a situation in which a railroad tank car was damaged in a train derailment, and ammonia was thereby released. Phillips Petroleum owned the tank car, but the appellate court held that there was no evidence that Phillips did anything to cause, threaten, or allow the pollution, because the train car was not under its control at the time of the accident but rather was under the complete control of the railroad company. Phillips Petroleum Co. v. Pollution Control Board (1979), 72 Ill. App. 3d 217, 390 N.E.2d 620.

The second case is Perkinson v. Pollution Control Board (1989), 187 Ill. App. 3d 689, 543 N.E.2d 901. In Perkinson, the court considered a situation in which the landowner had no knowledge of any violation of the Act from his hog-farming operation. The evidence in Perkinson showed that vandals caused the pollution without the landowner’s knowledge or consent. However, since there was nothing in the record to establish that the landowner had taken any precautions to prevent the actions of the vandals, the landowner was held to be in violation and properly fined. (Perkinson v. Pollution Control Board (1989), 187 Ill. App. 3d 689, 543 N.E.2d 901.) The court in Perkinson reasoned that its decision was controlled by a long line of precedent in Illinois establishing that “the owner of the source of pollution causes or allows the pollution within the meaning of the statute [Ill. Rev. Stat. 1991, ch. 1111/2, par. 1012(a)] and is responsible for that pollution unless the facts establish the owner either lacked the capability to control the source, as in Phillips Petroleum, or had undertaken extensive precautions to prevent vandalism or other intervening causes.” Perkinson, 187 Ill. App. 3d at 694-95, 543 N.E.2d at 904.

From our review of the record, the case sub judice appears to be much closer to the facts in Perkinson than the facts in Phillips Petroleum. The contract between Davinroy and the village conclusively establishes that Davinroy was “responsible for the operation and maintenance of the existing pumping system at the particular location once excavation” began. Davinroy does not deny that it discharged raw sewage on several occasions into the ditch. Davinroy was given a year and a half of warnings and did not comply. Davinroy argues that compliance and preventing the pollution would have been cost prohibitive. However, the evidence clearly shows that it was only during the times when the pumps broke down that the pollution events occurred. The pumps were under the control of Davinroy under the terms of the contract. Therefore, Davinroy’s defense amounts to an assertion that something it was not required to do, run a bypass sewer line over three miles to the treatment plant, would have been cost prohibitive. The State did not argue or allege that Davinroy should have built a bypass line to the treatment plant. Mahlandt unequivocally testified that the problem with Davinroy’s actions was that it did not properly maintain the bypass system it chose to use. We find that Davinroy neither lacked the capability to control the source of the pollution nor undertook any precautions to prevent the pollution. Therefore, the only conclusion we can reasonably reach from the record is that Davinroy should be held liable for a violation of section 12(a). Ill. Rev. Stat. 1991, ch. 1111/2, par. 1012(a).

The trial court found that there was evidence that the main sewer line had collapsed downstream from Davinroy’s work site prior to Davinroy beginning work. However, we do not believe that the record establishes either that the sewer line had collapsed downstream of the work site or that any collapse occurred during or before Davinroy's involvement. Mahlandt testified that he could not swear that the sewer line was functioning during the year and a half of Davinroy’s involvement, but the tests he took showing contamination in the ditch were doné immediately adjacent to the work site and not downstream where Davinroy alleged the break occurred. Therefore, the pollution about which the State complained did not have anything to do with the area where the sewer line may have been collapsed. Further, McBravey testified that he did not believe that the main sewer line was broken at the area in question during the period of Davinroy’s work, and he did not recall any other pollution events during the time period, except those caused by Davinroy. Although Davinroy testified that the main sewer line was collapsed, he admitted that he had never seen any collapse but had only heard of it. We would be more sympathetic to Davinroy’s argument and the trial court’s finding if there had been some evidence that a collapsed main sewer caused pollution at the site where the line collapsed or that the collapsed line caused the sewage to back up to where Davinroy was working. In the absence of such evidence, we cannot relieve Davinroy of its responsibility not to pollute based on rumors and hearsay.

Moreover, the State did not charge Davinroy alone with this violation. Both the village and the engineers entered into consent orders with the agency and paid substantial fines for their involvement. Just because Davinroy’s pollution may not have been the only cause of the violation is not sufficient to absolve it of liability. The statute clearly and plainly states that it is a violation of the Act to “[cjause or *** allow the discharge of any contaminants *** so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 1111/2, par. 1012(a).) Thus, it is no defense that another party may have been partially responsible for the pollution, even if we take as true Davinroy’s assertion that pollution had been discharged into the ditch for many years before its involvement. We cannot say that the evidence proves any conclusion other than that Davinroy was in control of the source of the pollution and that it caused or allowed the pollution to occur and is, therefore, in violation of section 12(a). Additionally, since Davinroy did not have a permit for discharging the contaminants into the ditch, it is also in violation of section 12(f). Ill. Rev. Stat. 1991, ch. 1111/2, pars. 1012(a), (f).

One final point we must consider is Davinroy’s argument that the ruling in Metropolitan Sanitary District v. Pollution Control Board (1975), 62 Ill. 2d 38, 338 N.E.2d 392, controls. Its reliance is misplaced. In that case, the court considered the propriety of penalties imposed under section 31(c) by the Pollution Control Board. (Ill. Rev. Stat. 1971, ch. 1111/2, par. 1031(c).) The court found that the sanitary district had fallen victim to interagency conflicts which had caused delays in its ability to comply with the Act. The State was. asking for penalties for past actions of the district, and the district was asking for a variance for future activities. The court found that under the statute controlling the case, penalties were not justified because they were purely punitive and not in furtherance of bringing the polluter into compliance with the law. The court held that the Act provides, via section 31(c), that the burden is on the agency to show that the alleged polluter caused or threatened air or water pollution, but that, if proved, the burden then shifts to the alleged polluter to show that compliance would impose an arbitrary or unreasonable hardship upon it. Ill. Rev. Stat. 1971, ch. 1111/2, par. 1031(c); Metropolitan Sanitary District, 62 Ill. 2d at 46, 338 N.E.2d at 394.

Metropolitan Sanitary District is not applicable to the facts of the case at bar. First, it deals with a statute that is not involved in the State’s prosecution of this case. Second, the statute under which the State prosecutes in this case does not allow the alleged polluter to defend on the basis that compliance would be an unreasonable hardship. On the contrary, section 12(a) is violated even if the alleged polluter did not cause the pollution himself but only allowed it to happen through some other force’s actions. (Perkinson v. Pollution Control Board (1989), 187 Ill. App. 3d 689, 543 N.E.2d 901.) Third, even if such a standard did apply to this case, Davinroy did not put on any evidence to show that compliance — specifically, keeping its pumps in working order and monitoring them for malfunction — was arbitrary or unreasonable.

The trial court apparently based its decision upon findings that the sewer line was broken past the work station, that Davinroy was not responsible for the sewer line past its work site, and that, as a result, no violation occurred. However, as we have already stated, the evidence supports the opposite conclusion: a violation occurred at Davinroy’s work site because it caused or allowed raw sewage to be pumped directly into the ditch from the work site. The only discharges that Davinroy is charged with are ones that occurred when the pumping system it was responsible for broke down. By logical extension, that means that no violation occurred when the pumps were working properly. Defendant’s argument that there was no practical alternative to discharging raw sewage into the ditch misses the point. The alternative was in place and worked effectively except for the times when the pumps broke down. Each time the pumps malfunctioned, Davinroy eventually repaired them so that the violations ceased, but when the pumps did not work, raw sewage was being pumped into the ditch in violation of the Act.

One final note concerns the trial court’s finding that an injunction would be unnecessary and pointless at this time since Davinroy has finished all work at the site. We agree, and therefore, upon remand, the trial court should consider only the request for penalties to be imposed and should not allow the State’s request for an injunction against Davinroy.

For the reasons stated, we reverse and remand.

Reversed and remanded.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MERLE L. TARNOW, Defendant-Appellant.
    Second District
    No. 2—91—0834
    Opinion filed September 2, 1993.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Merle L. Tamow, appeals from an order dismissing his petition for post-conviction relief. We reverse and remand.

On March 23, 1988, defendant, who was 43 years of age at the time of the offense, was convicted in absentia of aggravated criminal sexual assault for committing an act of sexual penetration with a victim under age 13. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1) (now 720 ILCS 5/12 — 14(b)(1) (West 1992)).) He was sentenced to a term of 15 years’ imprisonment. Defendant’s direct appeal was dismissed by this court due to his status as a fugitive. (People v. Tarnow (2d Dist., June 3, 1989), No. 2 — 88—0397.) Defendant was extradited from Michigan to Illinois to serve the sentence. After returning to Illinois, defendant filed an amended motion for a new trial or a new sentencing hearing. The motion was denied and defendant reinstated his appeal.

Upon his return to Illinois, defendant was charged with violation of bail bond for being absent from his trial for aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 32 — 10 (now 720 ILCS 5/32 — 10 (West 1992)).) Defendant was also charged with obstructing justice for leaving the State pending prosecution. (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 4 (now 720 ILCS 5/31 — 4 (West 1992)).) In February 1989, defendant entered a negotiated plea of guilty to obstructing justice. Defendant agreed to plead guilty to this offense, to dismiss his appeal for aggravated criminal sexual assault, and not file an appeal or post-conviction petition from his convictions of obstructing justice in exchange for the State’s agreement to dismiss charges for violation of bail bond. The court imposed a sentence of two years’ imprisonment to be served consecutively with his sentence for aggravated criminal sexual assault. This court entered an order dismissing defendant’s appeal from his conviction of aggravated criminal sexual assault on March 31, 1991. People v. Tarnow (2d Dist., March 13, 1990), No. 2-89-1331.

On May 15, 1991, defendant mailed a petition for post-conviction relief from the Department of Corrections. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 (now codified, as amended, at 725,ILCS 5/122 — 1 (West 1992)).) It was file-stamped on May 20, 1991. On May 21, 1991, the circuit court granted defendant’s petition to file as a poor person, ordered defendant’s receipt of a free transcript, and appointed a special assistant public defender to represent him. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 4 (now codified, as amended, at 725 ILCS 5/122 — 4 (West 1992)).) The trial court dismissed defendant’s petition as frivolous and patently without merit in a written order entered on June 20,1991.

Defendant filed a motion to reconsider the dismissal. The motion was denied on July 15, 1991, and this appeal followed. Defendant contends that the court’s judgment of summary dismissal is void because it was not entered within the time allotted by statute.

The State responds by asserting that the dismissal was proper since defendant waived his right to file a post-conviction petition as part of his negotiated plea of guilty to charges of obstructing justice. Defendant’s post-conviction petition alleges that counsel coerced him into pleading guilty to charges of obstructing justice by indicating that the judge would impose the maximum consecutive sentence for violation of bail bond if he did not plead guilty. Defendant’s petition also asserts that the waiver of his right to appeal his conviction of aggravated criminal sexual assault was not knowing and intelligent because the court failed to admonish him concerning the rights he sacrificed by entering the plea. Since defendant’s post-conviction petition raises issues collateral to the waiver of his right to file a post-conviction petition, we will review defendant’s appeal on the merits.

Section 122 — 2.1 of the Post-Conviction Hearing Act (the Act), in effect at the time deféndant filed his petition for post-conviction relief, requires the court to examine the petition and enter an order “[wjithin 30 days after the filing and docketing of each petition.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a) (now codified, as amended, at 725 ILCS 5/122 — 2.1(a) (West 1992)).) Within 30 days of the filing and docketing of a post-conviction petition, the court may enter an order dismissing a defendant’s petition as frivolous and patently without merit. If the petition is not dismissed, it must be docketed for further consideration in accordance with the Act. Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1 (now codified, as amended, at 725 ILCS 5/122 — 2.1(a)(2) (West 1992)).

Our supreme court has indicated that the 30-day rule set forth in section 122 — 2.1 is mandatory, not directory. (People v. Porter (1988), 122 Ill. 2d 64, 86, cert. denied (1988), 488 U.S. 837, 102 L. Ed. 2d 77, 109 S. Ct. 102.) If more than 30 days have elapsed since the petition was filed, the court has no authority to enter a judgment of summary dismissal. (People v. Phillips (1989), 183 Ill. App. 3d 417, 421.) Thus, a judgment of summary dismissal entered after the 30-day period has expired is void. (People v. Byers (1990), 196 Ill. App. 3d 502, 509.) The petition must be treated as if the court found it was not frivolous or patently without merit. (People v. Jett (1991), 211 Ill. App. 3d 92, 95.) If this occurs, the petition must be placed on the court’s docket for further consideration under the Act. Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(b) (now codified, as amended, at 725 ILCS 5/122 — 2.1(b) (West 1992)); Porter, 122 Ill. 2d at 86; Phillips, 183 Ill. App. 3d at 419-20.

Defendant contends the dismissal was improper because it was entered outside of the 30-day period allotted by section 122— 2.1(a) of the Act. Section 1.11 of the Statute on Statutes provides for computation of dates as follows:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.” (5 ILCS 70/1.11 (West 1992).)

Defendant’s petition was file-stamped Wednesday, May 20, 1991. The trial court dismissed defendant’s petition as frivolous and patently without merit on Thursday, June 20, 1991, 31 days following the date the petition was file-stamped. The circuit court found that defendant’s petition for post-conviction relief was docketed on May 21, 1991, the date which defendant’s motions to file as a poor person, obtain a free transcript, and appoint an attorney to represent him were granted. Thus, the trial court ruled that its dismissal was within the 30 days allotted by section 122 — 2.1 of the Act. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(b) (now codified, as amended, at 725 ILCS 5/122 — 2.1(b) (West 1992)).) Defendant, however, contends that the case was filed and docketed on May 20, 1991, and that the court’s dismissal is void because it occurred outside the 30-day period.

The specific language of section 122 — 2.1 of the Act requires the circuit court to examine a defendant’s post-conviction petition and enter an order “[w]ithin 30 days after the filing and docketing of each petition.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 122— 2.1(a) (now codified, as amended, at 725 ILCS 5/122 — 2.1(a) (West 1992)).) In People v. Byers (1990), 196 Ill. App. 3d 502, 509, the court recognized prior cases which held that the 30-day period began to run on the date the petition was filed with no mention as to when the petition was docketed. It explained the court’s reliance on the date of filing by characterizing the docketing process as “ministerial acts performed by the clerk upon receipt of the petition.” (Byers, 196 Ill. App. 3d at 509.) The Byers court ruled that the trial court’s failure to dismiss the petition within 30 days of filing renders the summary dismissal void.

The record in this case unequivocally reflects that defendant’s petition for post-conviction relief was filed on May 20, 1991. Our supreme court has clarified that a judgment of summary dismissal must be entered within the 30-day period. (Porter, 122 Ill. 2d at 85.) We agree with the Byers characterization of the docketing process as “ministerial acts performed by the clerk upon receipt of the petition.” (Byers, 196 Ill. App. 3d at 509.) Timeliness is essential to ensuring a defendant’s post-conviction rights are protected. We agree with Byers and determine that the 30-day period began to run on the date the petition was filed in the trial court. Thus, the court’s judgment summarily dismissing defendant’s post-conviction petition is void as it was entered outside the 30-day period allotted by section 122 — 2.1 of the Act.

Accordingly, we reverse the judgment of the circuit court of McHenry County and remand the cause to the trial court for further proceedings pursuant to section 122 — 4 through section 122 — 6 of the Act. See Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(b) (now codified, as amended, at 725 ILCS 5/122 — 2.1(b) (West 1992)).

Reversed and remanded.

WOODWARD and BOWMAN, JJ., concur.