author: JUSTICE LEWIS PRESIDING JUSTICE BARRY,

text:
    WILLIE PEARL DILLON, Mother and Next Friend of Jamiqua Dillon Dorris, a Minor, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Maislin Gateway Trucking et al., Appellees).
    First District (Industrial Commission Division)
    No. 1—89—0258WC
    Opinion filed March 9, 1990.

      BARRY, P.J., specially concurring.
    Gerald M. Sachs & Associates, Ltd., of Chicago (Charles Levy, of counsel), for appellant.
    George J. Cullen & Associates, Ltd. (Charles G. Haskins, Jr., of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

It is undisputed that James Dorris was employed as a truck driver by Maislin Gateway Trucking on October 3, 1981, when he sustained accidental injuries that arose out of and in the course of his employment and caused his death on that date. The dispute in this cause relates to the dependency of a minor child, Jamiqua Dillon Dorris, born on December 13,1981.

In an amended application for adjustment of claim filed with the Illinois Industrial Commission (hereafter referred to as the Commission) in case Number 82—WC—34144, the claimant, Willie Pearl Dillon, as mother and next friend of Jamiqua Dillon Dorris, a minor, alleged that the minor was the daughter of the decedent, James Dorris. In an application for adjustment of claim filed with the Commission in case Number 81—WC—46256, the claimant, Carietha Dorris, alleged that she was the surviving dependent widow of the decedent. The cases were consolidated by the arbitrator, who, following a hearing, awarded benefits to both claimants pursuant to section 7(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.7(a)) (hereafter referred to as the Act). At the hearing before the arbitrator Willie Pearl Dillon acknowledged that Carietha Dorris was the wife of James Dorris at the time of his death and that she herself was at the time still married to William H. Dillon.

Case law has long held that, if a woman is lawfully married at the time a child is born to her, there is a strong presumption that the lawful husband is the father of the child (Jones v. Industrial Comm’n (1976), 64 Ill. 2d 221, 356 N.E.2d 1; Sugrue v. Crilley (1928), 329 Ill. 458, 160 N.E. 857) and that a party seeking to rebut that presumption has the burden of introducing evidence which clearly and conclusively proves that the child’s father is someone other than the mother’s lawful husband (Jones, 64 Ill. 2d 221, 356 N.E.2d 1; Sugrue, 329 Ill. 458, 160 N.E. 857). Section 5 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2505), effective July 1, 1985, provides in pertinent part concerning a presumption of paternity as follows:

“(a) A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage ***.”

Subsection (b) of this section provides that a presumption under this section may be rebutted only by clear and convincing evidence.

Upon review, sought by Carietha Dorris, the Commission found that the claimant Willie Pearl Dillon had failed to prove that Jamiqua Dillon Dorris was the minor daughter of the decedent and, therefore, denied her claim for compensation, entering an award for the claimant Carietha Dorris. Upon further review the circuit court confirmed the decision of the Commission, and this appeal by Willie Pearl Dillon followed.

The claimant presents two issues for our review: whether the trier of fact, the arbitrator, is in the best position to judge the character and veracity of a witness’ testimony and whether the Commission applied the evidence used to rebut the statutory presumption of legitimacy to the issue of the decedent’s paternity.

At the hearing before the arbitrator, conducted on July 26, 1985, Carietha Dorris testified that she had married James Dorris on May 23, 1970, that no children had been born of their marriage, and that while she was married to the decedent she had had no income as the result of her own employment and the decedent had been her sole support. She testified that from 1974 until the time of his death she had been living with James Dorris at 15639 Dixie Highway in Harvey, Illinois.

Willie Pearl Dillon testified that she had met James Dorris on December 31, 1980, and that he had begun living with her on Jan-nary 1, 1981, in an apartment she was renting at “3625 Lake Park.” She lived there with him and her two sons, about 8 and 10 years of age at the time. On about April 1 or May 1, 1981, the four of them moved to a single-family house located at 5129 South Emerald, apparently in Chicago, where they were living at the time of James Dorris’ death. She indicated that between January 1, 1981, and October 3, 1981, on the days when he was not on the road driving he was living with her. She said that to her knowledge James Dorris did not stay anywhere else during that time. She estimated that as a result of his work he was away from the city approximately three or four days per week. The apartment and the house were leased in her name. She testified that she had paid the rent on the apartment and that the decedent had then done so “once he was there.” She stated that when she lived with the decedent'he paid the rent of $250 per month in “[c]ash” and received a receipt for the payment; no receipts were offered into evidence. He also paid the utilities, she said, as well as the expenses of food, clothing, and medication.

She testified that she and Dorris shared a common bedroom and had sexual relations while they lived together. When she met Dorris she was married to William H. Dillon, having married him on September 23, 1972, and lived with him until sometime in 1978, after the birth of their two sons. She stated that between 1978 and 1980, from the time she left William Dillon until she began to live with Dorris, she did not live with any other adult male. Asked whether, during the two-year time period after she had left William Dillon and before she lived with James Dorris, she had had sexual relations with any adult male, she answered, “Yes.” Later, asked, “Had you had sexual relations with any other male other than James Dorris between the date that you learned that you were pregnant back to the time that you last lived with your husband?” she answered, “No.” She denied having had sexual relations with anyone other than James Dorris during the time that she lived with him. She said she had learned she was pregnant on about April 8, 1981, and gave birth to Jamiqua on December 13,1981.

She testified that about three months before Jamiqua was born she was having “contractions, stomach crampings” and was admitted to Northwestern Memorial Hospital in Chicago. She appears to have been admitted to the hospital on September 27, 1981. She said that the hospitalization was to be paid for by insurance “through his [decedent’s] job.” She stated that she knew who was to pay for her inpatient stay because James Dorris “had given the hospital a little paper, so if I had the baby and he wasn’t at home that information would be there.” “He had given the hospital the letter,” she testified, “since he was on the road.” Admitted into evidence as claimant’s exhibit No. 16 are copies of two documents, one of which is labeled “Group Hospital Insurance Report” and the other of which is labeled “Admission Agreement and Authorization.” She identified the signature “James Dorris” in the space for “Insured Person” on the Group Hospital Insurance Report as that of the decedent. Appearing beneath the signature “James Dorris” in the space for “Insured Person” is the signature “Willie Dillon Dorris” in the space for “Patient.” The letters “JD” appear beside the signature. Elsewhere on this document James Dorris’ relationship to the patient, listed as “Willie Dorris,” is described as “Spouse.” On cross-examination she denied that the signature “Willie Dillon Dorris” was hers; asked why she had signed her name “Willie Dillon Dorris,” she answered that she had not done so. On the Admission Agreement and Authorization the signature “James Dorris” appears three times. She said that none of the writing on either document was hers and indicated that she had “had nothing to do with what was put on that paper,” referring to the Group Hospital Insurance Report. She added, “[I]t belonged to him [decedent], he signed it.” She stated that she did not know who paid the bills incurred for the hospitalization in September of 1981, adding, “I guess it was the insurance. Mr. Dorris’ insurance company.” She testified that she provided the names “Jamiqua Dillon Dorris” as it appears on the minor’s birth certificate. A copy of the child’s birth certificate, which is in evidence, bears the signature of the mother as “Willie P. Dillon”; the space for the name of the child’s father is blank.

William H. Dillon testified that he was married to Willie P. Dillon on September 23, 1972, and is still married to her but has not lived with her since sometime in 1978 and has not had sexual relations with her since their separation in 1978.

Carietha Dorris testified concerning her familiarity with James Dorris’ signature and stated that she did not know whether the signature “James Dorris” on the Group Hospital Insurance Report was that of the decedent but that of “James Dorris” appearing three times on the Admission Agreement and Authorization was not that of the decedent. She testified that the signature of “James Dorris” appearing on a copy of a check, admitted into evidence, made out to her was that of the decedent.

In his decision the arbitrator concluded that at the time of his injury the decedent was 45 years of age, was earning an average weekly wage of $661.13, was married, and had a posthumous child born on December 13,1981, finding in relevant part as follows:

“The Arbitrator adopts the credible testimony of Willis [sic] Pearl Dillon that she conceived the minor child, Jamiqua, with the decedent, James Dorris, during the time that they resided together in Chicago. Further, the Arbitrator notes that the child, Jamiqua, was born in Chicago, Illinois, on December 13, 1981, and that Willie Pearl Dillon’s testimony that she had sexual intercourse with the defendant exclusively during the accepted biological conception period was credible and truthful.
The Arbitrator also adopts the testimony of Carietha Dorris that she was the legal widow of James Dorris, deceased, on the date of death as credible and as evidenced by [certain exhibits]. The Arbitrator further finds that as the result of the aforesaid accidental injuries James Dorris departed this life on to-wit: October 3, 1981, leaving him surviving at the time of his death Carietha Dorris, his widow, and a minor child, namely: Jamiqua Dillon Dorris, born December 13, 1981[,] all of whom said decedent was under legal obligation to support and entitled to compensation on account of the death of said decedent, as provided in Section 7(a) of the Act.”

Upon review the Commission, without hearing further evidence, found that the claimant Willie Pearl Dillon failed to prove that Jami-qua Dillon Dorris was the minor daughter of decedent and denied her claim for compensation on the basis of the following express findings:

“1. Decedent, a 45 year old truck driver, sustained fatal accidental injuries arising out of and in the course of his employment when his tractor-trailor [sic] overturned on October 3, 1981.
2. On December 13, 1981, a daughter, Jamiqua, was born to [claimant] Willie Pearl Dillon. [Claimants] Carietha Dorris, widow of Decedent, and Willie Pearl Dillon each testified that she was living with Decedent at the time of the accident and Willie Pearl Dillon stated that although she was married to William Dillon since 1972, still married to him at the time of the conception of Jamiqua and remained married thereafter, she had sexual relations with no one other than Decedent since she began living with him on January 1, 1981, after meeting him on December 31, 1980. Although Willie Pearl Dillon testified that Decedent had paid her rent and utilities since January 1, 1981, no receipts were introduced showing that Decedent paid these expenses.
3. William Dillon testified that he was the husband of Willie Pearl Dillon and that he had not had sexual relations with his wife since 1978.
4. The Commission notes that in Jones v. Industrial Commission, 64 Ill. 2d 221, 356 N.E.2d 1 (1976), the Illinois Supreme Court stated that if a child is born while a woman is lawfully married, there is a strong presumption that the lawful husband is the father of that child and a party seeking to rebut that presumption has the burden to introduce evidence that clearly and conclusively proves that the child’s father is someone other than the mother’s lawful husband. ILL. REV. STAT., ch. 40, §2505 now provides that this presumption of paternity can be rebutted only by clear and convincing evidence. Expert witness’ testimony as to the results of blood tests is sufficient for rebuttal. The Commission finds that Petitioner Willie Pearl Dillon has failed to meet this burden because her testimony that she lived with Decedent at the same time Decedent’s widow, Carietha Dorris[,] claimed to have lived with Decedent was self-deserving and lacks credibility, that her use of the name ‘Dorris’ for herself and Jamiqua on documents is also self-serving and that no blood test was introduced establishing that Willie Pearl Dillon’s husband, William Dillon, was not the father of Jamiqua. Even if the Commission found the testimony of William Dillon that he had not had sexual relations with his wife since 1978 to be credible, this testimony has no probative value as to whether Decedent was the father of Willie Pearl Dillon’s child.”

Upon review, the circuit court in a 13-page memorandum decision and judgment confirmed the decision of the Commission, noting that

“[ijmplicit in the Arbitrator’s determination is a finding that [claimant] Dillon overcame the strong presumption that her husband was the father of Jamiqua. The Commission reviewed the evidence and determined that [claimant] Dillon had failed to rebut the presumption, clearly and conclusively, that the child’s father is someone other than [claimant] Dillon’s husband, William Dillon.”

The circuit court determined that the Commission “reviewed the facts and drew reasonable inferences from the facts,” stating further by way of conclusion,

“The determination of the Arbitrator, especially those findings in respect to credibility, are to be given weight; however, the Commission has the responsibility of reviewing and evaluating the evidence and making findings which are supported by the evidence. In the instant case the Court determines the findings of the Commission are not contrary to the law or against the manifest weight of the evidence.”

In the circuit court the respondent employer stated that it has taken no position in the dispute with regard to either claimant Dorris or claimant Dillon, describing the dispute between these two litigants as “whether the death proceeds are payable to one or both of them.” It described itself as remaining ready to pay the proceeds of the death award “once it has finally been determined which of the parties (and in what proportion) should receive said funds.”

With regard to the first issue presented for review, claimant Dillon contends, citing no authority for the proposition, that the arbitrator is “clearly in the best position to observe the witness and determine whether the testimony is credible and truthful. His decision must stand unless it is clearly against the manifest weight of the evidence.” She concludes that the arbitrator, rather than the Commission, was in the best position to judge the character and veracity of the testimony of the witnesses. It is well settled that the Commission is the judge of the credibility of the witnesses. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 454 N.E.2d 252.) It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963; Dunker v. Industrial Comm’n (1984), 126 Ill. App. 3d 349, 466 N.E.2d 1255.) Regardless of whether the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. (Berry, 99 Ill. 2d 401, 459 N.E.2d 963; Dunker, 126 Ill. App. 3d 349, 466 N.E.2d 1255.) Claimant Dorris suggests that, in urging that the arbitrator was in the best position to observe the witnesses and to determine whether their testimony was credible and truthful, claimant Dillon appears to be alluding to the cases of Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379, and Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106, 507 N.E.2d 1185. In Cook, referring to Luckenbill, it was indicated that the arbitrator who has heard the live testimony, as opposed to the Commission if it has not, is actually in a better position to evaluate that evidence. In Cook it was stated that, in cases where the Commission has rejected the arbitrator’s factual findings without receiving any new evidence, an extra degree of scrutiny is applied to the record in determining whether there is sufficient support for the Commission’s decision. Even if an extra degree of scrutiny is applied to the record in making such a determination, that application does not establish a basis for the rule proposed by claimant Dillon that the decision of the arbitrator must stand unless it is clearly against the manifest weight of the evidence. The rule claimant Dillon advances is a misstatement of the standard of review expressed above and properly employed by the Commission.

With respect to the second issue raised for review, claimant Dillon maintains that the evidence presented “clearly demonstrated that decedent is the father of the minor child.” She claims that the Commission improperly mixed two issues and failed to apply the requisite standards of law, the two issues being whether claimant Dillon’s evidence rebutted the presumption that a child born to a married woman is that of her husband and whether the evidence shows that the decedent is the father of the minor child. She asserts that “[i]t is this mixture of the vital issues that calls for the reversal of the Commission’s Decision on Review.” Citing no authority, she argues, “It is the province of the Arbitrator to make findings of fact and to weigh these facts to determine if the statutory presumption has been rebutted.” She relies upon Santiago v. Silva (1980), 90 Ill. App. 3d 554, 413 N.E.2d 139, as sustaining a paternity decree “based primarily,” she says, “upon the testimony of the mother.” She overlooks the fact that in Santiago the court relied upon the testimony of the mother together with evidence of blood tests excluding the mother’s husband from paternity of the child. The other case claimant Dillon relies upon is People ex rel. Jones v. Schmitt (1968), 101 Ill. App. 2d 183, 242 N.E.2d 275, in which, she states, “the testimony of the wife and husband that they were not having intercourse and were occupying separate bedrooms was sufficient to rebut the statutory presumption.” She fails to note that in Schmitt the putative father had admitted having intercourse with the relatrix on or about the date of conception, had admitted “ ‘there is a chance I could be the father,’ ” (101 Ill. App. 2d at 186, 242 N.E.2d at 276) and had stated, when told that the baby looked like him, “ ‘[H]e ought to’ ” (101 Ill. App. 2d at 185, 242 N.E.2d at 276). Claimant Dillon concludes that, had the Commission properly reached the conclusion that the statutory presumption was rebutted, it should have weighed the evidence of paternity, which, she says, it failed to do.

As has already been indicated, a presumption exists that a child conceived during wedlock is legitimate; this presumption is rebuttable and can be overcome by irrefragable proof. (Santiago, 90 Ill. App. 3d 554, 413 N.E.2d 139; Schmitt, 101 Ill. App. 2d 183, 242 N.E.2d 275.) Otherwise stated, the rule is that, if a woman is lawfully married at the time a child is born to her, there is a strong presumption that the lawful husband is the father of her child. (Jones, 64 Ill. 2d 221, 356 N.E.2d 1.) A party seeking to rebut that presumption has the burden of introducing evidence that clearly and conclusively proves that the child’s father is someone other than the mother’s lawful husband. (Jones, 64 Ill. 2d 221, 356 N.E.2d 1.) If blood tests show that the mother’s husband is not the father of the child, the presumption of legitimacy is overcome. (Santiago, 90 Ill. App. 3d 554, 413 N.E.2d 139.) Once the burden of producing clear and convincing evidence to rebut the presumption of the child’s legitimacy has been met, the presumption of the lawful husband’s paternity ceases to operate. (See In re Paternity of Smith (1989), 179 Ill. App. 3d 473, 534 N.E.2d 669.) An illegitimate child of a deceased employee may recover compensation under section 7 of the Act under some circumstances. (Jones, 64 Ill. 2d 221, 356 N.E.2d 1; Yellow Cab Co. v. Industrial Comm’n (1969), 42 Ill. 2d 226, 247 N.E.2d 601.) However, an award of compensation is not to be made to an illegitimate child unless paternity is proved (Jones, 64 Ill. 2d 221, 356 N.E.2d 1).

It is well established that the determination of disputed questions of fact is primarily a function of the Commission (Jones, 64 Ill. 2d 221, 356 N.E.2d 1) and that it is the province of the Commission to weigh the evidence and to draw reasonable inferences therefrom (Niles Police Department v. Industrial Comm’n (1981), 83 Ill. 2d 528, 416 N.E.2d 243). The findings of the Commission will not be set aside on review unless they are against the manifest weight of the evidence. (U.S. Industrial Chemical Co. v. Industrial Comm’n (1986), 143 Ill. App. 3d 881, 493 N.E.2d 646.) As stated above, the Commission is the judge of the credibility of the witnesses. Caterpillar Tractor, 97 Ill. 2d 35, 454 N.E.2d 252.

In the instant case, the Commission could reasonably infer, under the circumstances here and in the absence of blood tests excluding William Dillon from the paternity of Jamiqua, that the presumption of his paternity had not been overcome. As a consequence, the presumption of his paternity did not cease to operate, and the Commission properly concluded that claimant Dillon failed to prove that Jamiqua was the minor daughter of the decedent. Since matters of credibility are within the province of the Commission, which plainly resolved them against claimant Dillon, in view of the evidence presented we cannot say that the decision of the Commission was contrary to its manifest weight.

The judgment of the circuit court confirming the decision of the Commission is affirmed.

Affirmed.

McNAMARA, WOODWARD, and McCULLOUGH, JJ., concur.

PRESIDING JUSTICE BARRY,

specially concurring:

I concur with the majority that the Commission’s decision is not contrary to the manifest weight of the evidence. The majority’s opinion is confusing, however, regarding the proper standard of review to be applied when the Commission overturns the arbitrator without hearing new evidence. The simple rule is that the Commission’s decision will not be overturned unless it is against the manifest weight of the evidence; but when no new evidence is introduced, reviewing courts will apply an extra degree of scrutiny in making this determination. (Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379.) This standard applies whether the issue on review relates to an injury or to a claimant’s paternity. Applied here, as the majority correctly notes, the circuit court’s decision confirming the Commission’s determination should be affirmed.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    PETER VROZOS, Plaintiff-Appellee, v. PAUL SARANTOPOULOS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0019
    Opinion filed March 13, 1990.

      Robert D. Kolar & Associates, Ltd., of Chicago (Robert D. Kolar and Michele T. Oshman, of counsel), for appellant.
    Ross & Hardies, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant appeals from an order denying his petition to vacate a judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401), raising as issues whether the circuit court erred in denying (1) his motion for leave to plead to the registration of a foreign judgment; and (2) his section 2— 1401 petition, claiming fulfillment of the statutory requirements. Plaintiff has not filed a responding brief; however, we elect to consider the appeal on its merits. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiff filed a verified petition for registration of a Canadian judgment on February 4, 1986, pursuant to the Uniform Foreign Money-Judgments Recognition Act (UFMJRA) (Ill. Rev. Stat. 1985, ch. 110, pars. 12—618 through 12—626). The petition asserts that on December 2, 1974, the supreme court of Ontario, Canada, assessed a damage judgment for $217,947 in his favor and against defendant, resulting from a default order entered earlier by the Canadian court on May 30, 1968. Subsequently, a document entitled “Writ of Seizure and Sale” (writ) dated September 3, 1985, was entered by that court. Both the 1974 judgment and the 1985 writ were attached to the petition for registration. The writ directed the sheriff of the Judicial District of York, based upon the judgment and order of December 2, 1974, “to seize and sell the real and personal property within *** [York Judicial District belonging to] Paul Sarantopolous and to realize from the seizure and sale *** [the sum of] $217,947.00 and interest of 5% per year commencing on December 2,1974.”

Defendant was personally served with summons regarding the Illinois registration action on March 3, 1986. Documents subsequently filed in the cause show that his counsel thereafter requested and received from plaintiff’s counsel a 60-day extension of time within which to respond, so that defense counsel could obtain the file from the Canadian court. Meanwhile, no appearance, motion to extend time or answer was filed with the circuit court on defendant’s behalf. On July 30, 1986, plaintiff’s counsel notified defendant that if the response was not received within an additional 14-day period, a default would be sought against defendant. When informed that defendant would file a motion for leave to plead, plaintiff's counsel advised that she would object to the motion because the judgment had become final under section 12 — 607 of the Uniform Enforcement of Foreign Judgments Act (UEFJA) (Ill. Rev. Stat. 1985, ch. 110, par. 12—607). Defendant’s subsequent motion for leave to vacate any defaults entered in the case and to file an appearance and pleadings was denied by the circuit court on August 20, 1986.

Defendant thereafter filed a section 2 — 1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) and amended petition to vacate the August 20 order, alleging that defendant had shown due diligence; delay in response was the result of an excusable mistake in interpreting the law regarding the registration of foreign judgments; several meritorious defenses were available to him, including lack of notice to him in the original Canadian action; and the statute of limitations barred the registration of the judgment here in Illinois.

After a hearing, defendant’s amended section 2 — 1401 petition was denied, as was his motion to reconsider. Defendant appeals, challenging all three orders entered by the circuit court.

I

Defendant urges that the circuit court erred in denying his motion for leave to plead to the registration action in its order of August 20, 1986, because it misapplied the statutory provisions regarding the registration of a foreign judgment and the time limit within which a defendant must respond.

In Illinois, two statutes cover the enforcement of foreign judgments: the UEFJA (Ill. Rev. Stat. 1985, ch. 110, par. 12—601 et seq.), and the UFMJRA (Ill. Rev. Stat. 1985, ch. 110, par. 12—618 et seq.). The UEFJA is applicable to foreign judgments of sister States, codifying the full faith and credit clause of the United States Constitution and simplifying the enforcement of interstate judgments. Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702; State v. Ubrig (1984), 128 Ill. App. 3d 743, 470 N.E.2d 1297.

The UFMJRA, however, applies only to foreign country judgments, defined as “any judgment of a foreign state,” or “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof.” (Ill. Rev. Stat. 1985, ch. 110, par. 12—618.) The ÚFMJRA does not expressly set forth the procedural process by which a judgment creditor may initiate the registration of a foreign country judgment. Section 12 — 619 provides that the act applies to a foreign judgment which is “final,” “conclusive” and “enforceable” where rendered. (Ill. Rev. Stat. 1985, ch. 110, par. 2—619.) Section 12 — 620 states that “[ejxcept as provided in Section 12 — 621 ***, a foreign judgment meeting the requirements of Section 12 — 619 *** is conclusive between the parties to the extent that it grants or denies recovery of a sum of money,” and the “foreign judgment is enforceable in the same manner as the judgment of a sister state.” Ill. Rev. Stat. 1985, ch. 110, par. 12—620.

Section 1 — 108 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 1—108), applies the provisions of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2—101 et seq.) to all proceedings not regulated by other statutes. (In re Petition of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 543, 530 N.E.2d 491.) Where, as here, a statute is silent as to any mode of procedure which is contemplated or required by a general law, such as the Civil Practice Law or supreme court rules, the latter must be applied. (Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 109-10, 197 N.E. 578.) Accordingly, upon plaintiff’s filing of his verified petition for registration of the Canadian judgment, defendant’s appearance and answer were to have been filed in accordance with Civil Practice Law provisions (e.g., Ill. Rev. Stat. 1985, ch. 110, pars. 2—601, 2—602, 2—610) and supreme court rules (e.g., 107 Ill. 2d R. 181). The summons served in this case required defendant to answer or otherwise appear within 30 days after service. He was personally served, according to the sheriff’s return, on March 3, 1986. Defendant thereby was required to answer or otherwise appear on or before April 2, 1986, which he concedes was not attempted.

Defendant claims, however, that Supreme Court Rule 183 (107 Ill. 2d R. 183) confers upon the court the discretion to extend the 30-day period for response; and that here, the circuit court abused that discretion. This argument is without merit. Defendant was given more than enough time in which to appear and answer the petition. On July 30, 1986, plaintiff’s counsel wrote to defense counsel informing him of plaintiff’s intention to pursue the judgment. The letter states that in mid-March, plaintiff’s counsel gave defendant an additional 60 days in which to respond and further insisted that an answer be filed within 14 days. Defendant did nothing until August 20, 1986, when a motion for leave to appear and plead was filed. No motion for an extension of time was filed in the court. The circuit court did not abuse its discretion by denying defendant leave to plead, but correctly entered the final judgment as mandated by the statutes and rules implicated.

II

Defendant next contends that the circuit court erred in denying his section 2 — 1401 petition to vacate because he satisfied the necessary statutory elements.

A petition to vacate a final judgment pursuant to section 2 — 1401 must establish a meritorious defense; due diligence in presenting the defense in the original action and in filing a petition; and misapprehension by the court of facts or relevant defense without fault or negligence of petitioner at the time judgment was entered. (In re Petition of Kildeer, 124 Ill. 2d at 544; Fabian v. Norman (1985), 138 Ill. App. 3d 507, 486 N.E.2d 335.) A petition for relief from judgment is addressed to the equitable powers of the court; however, in the interest of fairness and justice these requirements need not be viewed in a vacuum nor invariably inferred. (Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361.) On appeal, the decision of the circuit court will not be overturned absent an abuse of discretion. Commercial National Bank v. Mehta (1986), 144 Ill. App. 3d 924, 930, 494 N.E.2d 779.

A

In the case sub judice, defendant assigns as error the circuit court’s finding that he did not exercise due diligence in defending the original action against him. He points to the fact that plaintiff’s counsel gave him an extension of time and that she also was mistaken as to the law regarding registration of foreign judgments.

Due diligence requires a section 2 — 1401 petitioner to have a reasonable excuse for failing to act within an appropriate time. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381.) Section 2 — 1401 does not provide the means to remedy the consequences of defendant’s own mistake or negligence. (First National Bank v. Mattoon Federal Savings & Loan Association (1988), 175 Ill. App. 3d 956, 960, 530 N.E.2d 666.) A party relying on this section must show that “through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court” (175 Ill. App. 3d at 960, citing Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294), and that his failure to defend was the result of an excusable mistake, his action being reasonable and not negligent under the circumstances. Smith v. Airoom, 114 Ill. 2d at 222.

At bar, defendant insists that both his and plaintiff’s counsel were mistaken about the time limit for response. Defendant correctly asserts that the procedure prescribed for filing and responding to an action for registration of a foreign judgment under the UFMJRA is unclear; indeed, there is no explicit UFMJRA provisions relating to the required procedure in that act as they exist in the UEFJA (compare Ill. Rev. Stat. 1985, ch. 110, par. 12—618 et seq., with Ill. Rev. Stat. 1985, ch. 110, par. 12—601 et seq.). Further, the record establishes that plaintiff’s counsel agreed to give defendant extended dates to file his response; defendant did not, due to a claimed clerical error, compounded by the fact that counsel was moving to a different office locale. Under these circumstances, plaintiff is estopped from claiming the benefit of the statutory response period by counsel’s willingness to allow 74 days in excess of the statutory time prescribed. (See Bledsoe v. Carpenter (1987), 163 Ill. App. 3d 823, 828, 516 N.E.2d 1013.) It cannot be fairly concluded from the foregoing that defendant has not met the due diligence requirement of section 2 — 1401. To so hold would be manifestly unjust; therefore, the judgment must be vacated. Douglas Transit, Inc. v. Illinois Commerce Comm’n (1986), 145 Ill. App. 3d 115, 119, 495 N.E.2d 620; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 783, 412 N.E.2d 49.

B

Defendant further challenges the circuit court’s determination that no meritorious defenses existed which would have enabled him to defeat the registration of the Canadian judgment, alleging that the statute of limitations had expired at the time the registration petition was filed and that plaintiff is forever barred from enforcing the judgment here.

An action to commence registration is civil in nature; since no specific statute of limitations is given, the general statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13—205) must apply. The five-year statute of limitations therein set forth controls this action.

The original default judgment was entered in Canada on December 2, 1974. Questions unanswered in appellant’s brief, at oral argument, or anywhere in the record, include whether that 1974 judgment was still enforceable because it had not yet lapsed; and whether if it lapsed, the judgment nevertheless was revived by the issuance of the Canadian writ in 1985, as claimed by plaintiff in the circuit court. At that time, if the judgment was considered to have become final and enforceable in Canada, plaintiffs 1986 petition to register the Canadian judgment in Illinois would have been well within the five year period. Defendant, however, maintains that the action should have been filed no later than 1979 and that any action taken thereafter is barred. He asserts that reviving the Canadian judgment in Canada in 1985 did not give plaintiff another five years in which to register the judgment in Illinois.

Defendant cites cases to establish that a five-year statute of limitations governs the registration of a foreign judgment. None of the cases, however, address the issue of revival in the foreign country. If plaintiff is correct in asserting that the judgment in Canada was revived in 1985, defendant’s argument would be rendered meritless, since the Illinois registration action was filed in 1986. Defendant contends that reviving the judgment at that time does not change the fact that the limitation period has run. In Johnson Brothers Wholesale Liquor Co. v. Clemmons (1983), 233 Kan. 405, 661 P.2d 1242, cert. denied (1983), 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 345, however, after analyzing the effect of a sister State’s revival of judgment on the forum State’s statute of limitations, the court held where an action is brought in a sister State which is a revival of an earlier judgment, and under the law of the State rendering the revival it is a new judgment and not merely an extension of the statutory period in which to enforce the original judgment, the judgment of revival, as a new judgment, is entitled to full faith and credit. It may not be refused enforcement on the ground that under the law of the forum the original judgment could not have been revived at the time it was revived by the judgment of the sister State. (Accord Carter v. Carter (1986), 232 Va. 166, 349 S.E.2d 95.) Of what effect the Canadian writ of seizure and sale was in Canada was neither pleaded nor proven in the circuit court. The law of a foreign country may not be judicially noticed in Illinois, but is an issue for the court which must be proven as any other fact. (Ill. Rev. Stat. 1985, ch. 110, pars. 8—1007, 8—1003; Atwood Vacuum Machine Co. v. Continental Casualty Co. (1969), 107 Ill. App. 2d 248, 262-63, 246 N.E.2d 882.) For this reason also, the judgment allowing registration and enforcement must be vacated, and the cause remanded for further proceedings.

C

Defendant also claims that the lack of notice and personal jurisdiction in the original Canadian action deprived him of the safeguards of due process and tainted the Canadian judgment, rendering it unenforceable here in Illinois. The circuit court did not find this claim meritorious, and defendant challenges that ruling.

Section 12-621 of the UFMJRA (Ill. Rev. Stat. 1985, ch. 110, par. 12—621) provides specific defenses available in an action to register a foreign country’s judgment. At bar, the record reveals that a writ of summons was issued in the Canadian action on February 28, 1968. This writ was never served on defendant personally. An affidavit by plaintiff’s attorney’s law clerk noted efforts to serve defendant with summons in Toronto on March 6 and 14, 1968, but that defendant evaded service. Based upon that affidavit, plaintiff’s counsel subsequently obtained a court order authorizing substituted service on defendant’s brother, Bobby Sarantopoulos. Although defendant complains that he never received notice of the action in Canada, the record contains an appearance filed for defendant by a law firm, Hess and Paul of Toronto, dated April 8, 1968. Defendant contends that he never authorized this appearance, relying upon the affidavit of his brother, George Sarantopoulos, to establish that George requested attorney Paul Hess to enter an appearance for defendant, without defendant’s authorization or consent. Further, George averred that he had learned of the suit after defendant had left Canada and had gone to Greece in 1968. Attached to the affidavit is a letter from attorney Hess, stating that he would “do nothing further” in Paul’s defense and that he had “to take steps to remove himself from the [rjecord.”

Defendant, too, filed an affidavit claiming that (1) he was never personally served in Canada, (2) he never authorized Hess to enter an appearance for him in the Canadian action, and (3) he never had any personal knowledge of any civil action in Canada in which plaintiff attempted to get money damages from him. Defendant averred that he had left Canada in mid-March of 1968 and was not living with his brother, Bobby, at the time of the purported substituted service. Thereafter, plaintiff filed an affidavit of service with a photograph of the person served, stating that defendant was served personally on March 4, 1974, at his place of employment in Chicago, Illinois, with notice of a hearing to assess damages. Defendant denied ever being served in 1974 by a private process server.

Section 12—622 of the UFMJRA (Ill. Rev. Stat. 1985, ch. 110, par. 12—622) provides several bases for recognition of a judgment entered in a foreign country when lack of personal jurisdiction is raised. Although disputed, there is an appearance filed on behalf of defendant in the Canadian action which appears to satisfy section 12 — 622(a)(2). Additionally, defendant was served through his brother by court-ordered substitute service. Finally, there is evidence that at the initial commencement of the lawsuit in 1968, defendant was domiciled in Canada, apparently satisfying section 12—622(a)(4).

Defendant maintains, however, that substitute service in Canada does not comport with substitute service sanctioned under Illinois law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—203.) In analyzing a similar contention involving due process, the seventh circuit noted that the UFMJRA does not require that the procedures employed by the foreign tribunal be identical to those employed in American courts. (Ingersoll Milling Machine Co. v. Granger (7th Cir. 1987), 833 F.2d 680, 687 (interpreting Illinois law).) The statute merely requires that the procedures be “compatible with the requirements of due process of law” (Ill. Rev. Stat. 1985, ch. 110, par. 12—621(a)(1)), the court stating:

“The drafters of the Uniform Act made it clear that ‘a mere difference in the procedural system is not a sufficient basis for nonrecognition. A case of serious injustice must be involved.’ Unif. Foreign Money-Judgment Recognition Act §4 comment, 13 U.L.A. 268 (1986)” Ingersoll, 833 F.2d at 687.

The record establishes that plaintiff received an order from the Canadian court authorizing the complained-of substitute service on defendant’s brother. This order evidently was the result of an affidavit filed by plaintiff’s Canadian counsel after speaking with relatives of defendant who urged plaintiff to settle the matter out of court. Nevertheless, Illinois courts construe statutory authority for substitute service of summons strictly and where allegation of irregularities in such service are raised in domestic cases, jurisdiction to enter default orders may be questioned and subjected to an evidentiary hearing. (State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.) No effort was made in this case to prove or explain Canadian law in this respect. The matter must be returned to the circuit court for resolution with regard to questions concerning personal jurisdiction raised by defendant.

Accordingly, the judgment will be vacated and the cause remanded with directions to proceed to further hearings consonant with the views expressed in this opinion.

Vacated and remanded with directions.

BILANDIC and SCARIANO, JJ., concur.

       At this time, 17 States have adopted the UFMJRA. These are Alaska, California, Colorado, Connecticut, Georgia, Illinois, Maryland, Maine, Michigan, Minnesota, Missouri, New York, Ohio, Oklahoma, Oregon, Texas, and Washington. Of these 17 States, 14 have adopted the UEFJA; however, only Illinois has kept the 1948 version. All others adopted the 1964 act. The Commissioners of Uniform State Laws specifically noted that the method of enforcement for the UFMJRA will be that of the UEFJA of 1948 in a State having adopted that act. (13 U.L.A. 265 (1986) (comment to section 3).) Based on this note, commentators have suggested that the procedure for the UFMJRA is provided by the 1948 UEFJA. Through the UEFJA, “the judgment creditor may obtain an immediate levy upon property of the judgment debtor; however, sale must await notice to the debtor and an opportunity for the presentation of defenses.” (R. Ginsburg, Recognition & Execution of Foreign Civil Judgments & Arbitration Awards, in J. Hazard & W. Wagner, Legal Thought in the United States Under Contemporary Pressures 237, 251, n.67 (1970). See also Reciprocal Recognition of Foreign Country Money Judgments: The Canada-United States Example, 45 Fordham L. Rev. 1456, 1492, n.221 (1977) (Method of enforcement suggested by the UEFJA is “in other words, by registration of the judgment”; the UFMJRA emphasizes “recognition through enforcement”).) Nevertheless, no provisions are set forth in the statutes themselves, either expressly or by implication, by which the procedures for registration and following regulations contained in the UEFJA have been adopted for use in the UFMJRA.

      It is possible that in Ontario, an action upon a judgment or recognizance must be commenced “within 20 years after the cause of action arose.” (Ont. Rev. Stat., ch. 240, §45(1)(c) (1980).) Since the judgment at issue was less than 20 years old in 1985, there may have been no lapse.

      Unclear is whether in Canada a “writ of seizure and sale” merely serves as “a final process in the collection of debt” as noted in American National Bank v. Childs (1897), 49 La. Ann. 1359, 1364, 22 So. 384, 386; 101 C.J.S. Writ n.29, at 637 (1958); whether, under Canadian law, the statute of limitations then begins running; or whether the writ revives an earlier judgment. The parties have been of no assistance to either the circuit court or this court in this regard since no Canadian law has been pleaded or proven.

      The affidavit of plaintiff’s counsel’s law clerk points to the conclusion that defendant lived at 708 Pape Avenue in Toronto with his wife, and that he was working in the city up until March 7, 1968, when he dropped out of sight. The proceedings were instituted on February 28, 1968.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS GARCIA, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0001
    Opinion filed March 16, 1990.

      Mitchell D. Kreiter & Associates, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was convicted of calculated criminal drug conspiracy, delivery of a controlled substance, and possession of a controlled substance with the intent to deliver. Defendant was sentenced to a term of six years for each offense, the sentences to run concurrently. The issues raised on appeal are: (1) whether the trial court committed reversible error in prohibiting defendant’s testimony regarding his conversation with an alleged co-conspirator; (2) whether the State failed to prove each element of the offense of calculated criminal drug conspiracy beyond a reasonable doubt; and (3) whether defendant’s convictions for delivery of a controlled substance and possession of a controlled substance with the intent to deliver should be reversed where these convictions were based on the same conduct which gave rise to his conviction for calculated criminal drug conspiracy.

John Mueller, a police officer working as an investigator for the State’s Attorney’s office, testified at the trial that he was contacted by a man named George Downs on November 30, 1987. Downs informed him that the deal for a kilogram of cocaine was set for December 2, 1987. The next day Downs again contacted Mueller and arranged to meet him the following morning. Downs told Mueller that they were to meet Sam Cannata at that time, and that Cannata would have the cocaine available for Mueller to inspect. Downs also told Mueller to have the purchase price of $35,000 with him at that time. The next morning Mueller and Downs went to a restaurant on the northside of Chicago where they met Cannata. Cannata told Mueller that he did not have the cocaine with him. He informed Mueller that his contact lived nearby, but that he wanted to see the money before he picked up the cocaine. Mueller contacted Victor Valdez, an investigator with the Illinois State Police department, who then arrived on the scene with the money. Cannata counted the money and returned it to Valdez. He then left the scene to get the cocaine but returned a short time later and told Mueller that the person with the cocaine was not at home. Cannata informed Mueller that he would arrange to have his “connect” meet them at the automobile dealership (dealership) where Cannata was employed, and they could “turn” the deal there. When Mueller was contacted by Downs, he and Valdez drove to the dealership. Valdez remained in the car while Mueller went inside. Cannata met Mueller at the service entrance and informed him that the “connect” was inside with the package. Cannata and Mueller went into the dealership, where Mueller saw defendant and a woman standing by the elevator. Cannata told Mueller that the deal would be done on the elevator, but Mueller refused to use the elevator for the transaction. Defendant then displayed a package which he took from his jacket. Mueller again said that he was not going to get on the elevator, and that he only wanted to see the package. Defendant handed the package to Mueller, and Mueller opened it and observed squares of cocaine. Defendant told Mueller that it was “pure key” and that he would be happy with it. Mueller told defendant to wait while he got the money. He then gave a signal and defendant was arrested.

On cross-examination, Mueller stated that he had no knowledge that defendant, Downs and Cannata had any agreement with each other. Mueller also testified that prior to December 2, 1987, he had never seen defendant and Cannata together.

Nancy Hall, a forensic chemist, testified that the substance recovered was cocaine and that it weighed 953.47 grams.

Defendant testified in his own defense that he had known Cannata for 10 years. He stated that sometime in November 1987, his brother had a house for sale, and defendant asked Cannata if he was interested in purchasing it. Several weeks later Cannata contacted defendant. Defendant started to testify regarding his conversation with Cannata, but the State objected. The trial court sustained the State’s objection and ruled that the conversation was inadmissible hearsay. Defendant’s attorney then made an offer of proof that defendant would testify that Cannata telephoned him to inquire if the house was still available, and he asked defendant to meet him at the dealership on the following day, which was the day of the incident. Defendant then testified that when he arrived at the dealership, Cannata approached him and introduced Mueller to him as a friend. Defendant stated that Cannata and Mueller walked away, and Cannata’s girlfriend, who was also at the dealership, handed defendant a package. Cannata and Mueller returned, and Cannata took the package from defendant and handed it to Mueller. Shortly thereafter, defendant was arrested.

Defendant testified that he did not know Downs prior to his arrest, and he was not involved in a conspiracy. He also stated that the cocaine recovered did not belong to him, and he denied knowing what the package contained when it was in his possession. Defendant further testified that his only reason for being at the dealership was to talk with Cannata about the sale of his brother’s house.

I

Defendant’s first contention relates to the trial court’s exclusion of a portion of his testimony. During the State’s case in chief, the trial court allowed the introduction of inculpatory statements of an alleged co-conspirator. Defendant, however, was prohibited from testifying to his exculpatory conversation with the same person. He claims that this ruling by the trial court was reversible error. During his direct examination, Mueller testified that when he arrived at the dealership, Cannata informed him that his “connect” was there with the package. He then introduced Mueller to defendant. The trial court allowed admission of Cannata’s out-of-court statements based on the co-conspirator exception to the hearsay rule. When defendant testified in his own behalf, he stated that he had known Cannata for 10 years and that Cannata had expressed interest in buying a house that defendant’s brother had for sale. When defendant started to testify to a conversation with Cannata relative to the intended sale, the trial court sustained the State’s objection and prohibited defendant’s testimony as inadmissible hearsay. Defense counsel argued that the excluded conversation was necessary to defendant’s theory of defense. He then made an offer of proof that defendant would testify that he received a telephone call from Cannata, and that Cannata asked defendant if his brother’s house was still available. During this conversation, defendant agreed to meet Cannata at the dealership the next day to discuss the purchase of the property.

Hearsay is defined as testimony of an out-of-court statement which is offered to establish the truth of the matter asserted. With certain exceptions, such testimony is inadmissible at trial because the party against whom it is offered has no opportunity to test the absent declarant’s credibility. (People v. Jones (1983), 114 Ill. App. 3d 576, 589, 449 N.E.2d 547, 557.) However, statements which would be hearsay if offered for the truth of the matter asserted may be admissible if offered for the limited purpose of explaining another’s conduct. People v. Pirrello (1988), 166 Ill. App. 3d 614, 619, 520 N.E.2d 399, 403; People v. Jones (1983), 114 Ill. App. 3d 576, 589, 449 N.E.2d 547, 557.

Defendant argues that the excluded conversation was admissible for the limited purpose of explaining his presence at the scene of the incident. The State argues that, although defendant sought admission of the conversation to explain his presence at the dealership, he also sought to prove the truth of the substance of the conversation.

Both parties cite Pirrello (1986), 166 Ill. App. 3d 614, 520 N.E.2d 399, in support of their argument. In Pirrello, the defendant admitted killing the victim, Mark Thomas, but testified that he shot him in self-defense. Melissa Bouma, a prosecution witness, testified that she last saw Thomas on the day of the shooting at a bar where they had arranged to meet. Bouma arrived first, and when Thomas arrived, he was called over to a table where defendant and a man known as Allen were seated. Over defendant’s objection, Bouma testified that she overheard Allen ask Thomas if he could get some cocaine for defendant. Thomas agreed to take the defendant to a friend who had cocaine, and they left the bar together. Thomas’ body was subsequently found at a gun club. When the defendant tried to testify to his version of the conversation with Thomas and Allen, the trial court ruled that the conversation was inadmissible hearsay. Defense counsel then made an offer of proof that the conversation was about a gun that Thomas wanted to purchase from defendant and not about the sale of drugs as the State maintained.

On appeal, the State argued that Bouma’s testimony regarding the conversation was admissible for the limited purpose of explaining defendant’s conduct. The second district reasoned:

“Thus, if the State had only utilized the out-of-court statements for the reasons argued on appeal, no hearsay problem would be presented. But, as defendant notes, the State specifically argued to the jury that the shooting was drug related, characterizing Bouma’s testimony as ‘hard evidence they were involved in some kind of drug deal.’ *** The State’s argument thereby obviated the nonhearsay use of Bouma’s testimony and created a strong possibility that the jury would view the statements as proving the truth of the matters therein.” Pirrello, 166 Ill. App. 3d at 619, 520 N.E.2d at 403.

The State argues that, pursuant to Pirrello, defendant’s testimony regarding Cannata’s statements was properly excluded. The State reasons that, because the conversation directly related to defendant’s theory of defense, it was offered to prove the substance of the statements. However, Bouma was not the defendant in Pirrello. Furthermore, the Pirrello court held that the defendant’s version of the conversation should have been admitted because it was not hearsay, and it was offered to show defendant’s state of mind when he left the bar with Thomas. Pirrello, 166 Ill. App. 3d at 619, 520 N.E.2d at 403.

Accordingly, because the court sub judice could have considered defendant’s conversation for the limited purpose of explaining his presence at the dealership, the exclusion of defendant’s testimony of Cannata’s statements was error.

Although the trial court’s exclusion of defendant’s testimony regarding Cannata’s statements was error, the error was harmless. “Harmless error is a technical violation of a rule of evidence not considered a sufficient basis for reversal because the admission or exclusion did not affect the substantial right of a party. [Citations.] *** [E]rror can be harmless if other properly admitted evidence overwhelmingly supports the conviction or if the excluded evidence is cumulative or merely duplicates properly admitted evidence.” (People v. Demeron (1987), 153 Ill. App. 3d 440, 446, 505 N.E.2d 1222, 1226, citing People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526, 528.) During the State’s case in chief, Investigator Mueller testified that he was informed by Downs that the drug transaction would take place at the dealership. When he arrived at the dealership, Cannata said that his “connect” was there with the cocaine, and he introduced Mueller to defendant. Shortly thereafter, defendant handed a package to Mueller, who inspected the contents and found white squares of cocaine. According to Mueller’s testimony, defendant then said that it was “pure key” and that Mueller would be happy. While defendant denies any knowledge or participation in the transaction, the credibility of the witnesses is for the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267, 277.) Therefore, even if the trial court had allowed the admission of defendant’s testimony of Cannata’s portion of the conversation, there was still sufficient other evidence to support defendant’s conviction beyond a reasonable doubt. Furthermore, defendant was able to testify to his portion of the excluded conversation as well as his explanation of why he was at the dealership on the day of the incident. Therefore, the conversation was cumulative, and its exclusion was harmless error.

Based on our conclusion that the trial court’s prohibition of defendant’s conversation with Cannata was harmless error, we need not address defendant’s remaining arguments that the conversation was admissible under the co-conspirator exception to the hearsay rule or the doctrine of completeness.

II

Defendant next contends that his conviction for calculated criminal drug conspiracy should be reversed because the State failed to present sufficient evidence that he conspired with two or more individuals, that he obtained anything of value in excess of $500 or that he organized, directed or financed a conspiracy. The offense of calculated criminal drug conspiracy is governed by section 405 of the Controlled Substances Act, which provides:

“(b) *** a person engages in a calculated criminal drug conspiracy when:
(2) such violation is a part of a conspiracy undertaken or carried on with two or more other persons; and
(3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy.” Ill. Rev. Stat. 1987, ch. 56½, par. 1405(b).

See also People v. LeShoure (1985), 139 Ill. App. 3d 356, 361, 487 N.E.2d 681, 684; People v. Shimkus (1985), 135 Ill. App. 3d 981, 987, 482 N.E.2d 194, 197.

The State claims that there was sufficient evidence to prove that defendant conspired with two other people because Downs introduced Mueller to Cannata, Cannata introduced Mueller to defendant, and the three of them conspired to sell Mueller the cocaine. The State bases its contention on the premise that the existence of an agreement may be inferred from the surrounding facts and circumstances, including the conspirators’ conduct. People v. Abdennabi (1987), 157 Ill. App. 3d 979, 985, 511 N.E.2d 719, 723; People v. Saldana (1986), 146 Ill. App. 3d 328, 334, 496 N.E.2d 757, 762.

Defendant cites People v. Harmison (1985), 108 Ill. 2d 197, 204, 483 N.E.2d 508, 511, in support of his argument that the evidence was insufficient to prove that he conspired with two or more people because, even if defendant knew that Mueller was introduced to Cannata by Downs, that fact alone was insufficient to prove beyond a reasonable doubt that defendant conspired with Downs. Harmison, 108 Ill. 2d at 202, 483 N.E.2d at 511.

In Harmison, the defendant asked his codefendant, Robert L. Dubois, to obtain cocaine from a man known as Pete Lowe. Defendant told Dubois that he could not go to Lowe himself because he still owed Lowe money for cocaine previously purchased. The supreme court affirmed the appellate court’s ruling that the State failed to prove beyond a reasonable doubt that defendant and two other people conspired to obtain the cocaine. “[T]he fact that defendant knew that Dubois would obtain the cocaine from Lowe was not sufficient to prove that Lowe was the third person in the *** conspiracy.” (Harmison, 108 Ill. 2d at 202, 483 N.E.2d at 511.) The court then ruled that subsection (b)(2) of the calculated criminal drug conspiracy statute “clearly requires that [a] defendant agree with ‘two or more *** persons.’ ” Harmison, 108 Ill. 2d at 204, 483 N.E.2d at 511.

In the instant case, there is no evidence that defendant had any prior contact with Downs or knew of his existence. Therefore, pursuant to the reasoning in Harmison, the fact that Downs had contact with Cannata and Cannata had contact with defendant was not sufficient to prove that defendant conspired with Downs.

Defendant also contends that the State failed to prove beyond a reasonable doubt that he obtained anything of value greater than $500 from or that he organized, directed or financed a violation or conspiracy. In Shimkus, the court addressed the meaning of the language in section 405(b)(3) of the Controlled Substances Act. The court held that the statute requires proof that defendant’s share of the proceeds from the transaction exceeds $500. “The word ‘obtain’ is not defined in the statute. In its ordinary and popular meaning ‘obtain’ means ‘to gain or attain possession *** by some planned action or method.’ [Citation.] Therefore, to commit the offense of calculated criminal drug conspiracy, defendant must have gained possession of something of value in which his share of the proceeds was greater than $500.” Shimkus, 135 Ill. App. 3d at 988, 482 N.E.2d at 199; see also People v. Biers (1976), 41 Ill. App. 3d 576, 581, 353 N.E.2d 389, 392.

In discussing the jury instructions relative to this subsection of the statute, the Shimkus court stated: “Moreover, review of the instructions tendered to the jury *** warrants the conclusion that the jury properly understood that defendant himself, and not just the conspiracy as a whole, was required to have received something of value greater than $500.” Shimkus, 135 Ill. App. 3d at 989, 482 N.E.2d at 199.

The State contends that defendant received something of value greater than $500 because he supplied 953.47 grams of cocaine, the sale price was $35,000 and the street value was $200,000. The State concludes that this evidence was sufficient to prove that defendant received something of value pursuant to the requirement of the statute. However, contrary to the State’s contention, there is no evidence of what, if anything, defendant was to receive, and he was arrested before he received any money. Therefore, defendant never obtained anything of value greater than $500 from the transaction.

There is also insufficient evidence that defendant organized, directed or financed a violation or conspiracy. The court in People v. Lucas held: “In order to prove that the defendant either organized or directed a conspiracy to deliver a controlled substance there must be evidence which shows, in substance, that the defendant either had sufficient influence over his coconspirators to be in a position to systematize their activities or to give orders or instructions that would to some extent be binding.” (People v. Lucas (1975), 33 Ill. App. 3d 309, 314-15, 337 N.E.2d 103, 107.) The Lucas court also held that the degree to which a defendant participates in a transaction must be measured against the amount of participation of the other parties. Lucas, 33 Ill. App. 3d at 315, 337 N.E.2d at 107.

In the instant case, Mueller arranged the transaction through communication with Downs and Cannata. There is no evidence that defendant had any part in the transaction until he was introduced to Mueller at the dealership and handed him the contraband. This evidence is insufficient to prove that defendant organized or directed the transaction. Furthermore, although defendant delivered the cocaine to the dealership, there is no evidence that the cocaine belonged to him, or that he otherwise financed the transaction.

For these reasons, we conclude that the State failed to prove each of the elements of calculated criminal drug conspiracy beyond a reasonable doubt. Therefore, defendant’s conviction for this offense is reversed.

Ill

The final issue is whether defendant’s convictions for delivery of a controlled substance and possession of a controlled substance with the intent to deliver should be reversed where these convictions were based on the same conduct which gave rise to his conviction for calculated criminal drug conspiracy. The State concedes that if defendant’s convictions for calculated criminal drug conspiracy is affirmed, the remaining two convictions should be vacated. However, defendant’s conviction for calculated criminal drug conspiracy is reversed. Because we have concluded that the trial court’s exclusion of a portion of defendant’s testimony was not reversible error, the convictions for delivery and possession of a controlled substance still stand. Therefore, the remaining question is what determination should be made as to the other two convictions.

Prejudice to a defendant results when he is convicted of more than one offense based on the same conduct and one offense is a lesser included offense of the other one. People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845; People v. Dale (1985), 137 Ill. App. 3d 101, 104, 484 N.E.2d 459, 462; People v. Lane (1985), 133 Ill. App. 3d 215, 220, 478 N.E.2d 1160, 1164.

In this case, possession of a controlled substance with the intent to deliver is a lesser included offense of delivery of a controlled substance. In addition, both convictions are based on evidence that defendant had the cocaine in his possession and handed the package containing the cocaine to Mueller. Therefore, the conviction for possession of a controlled substance with the intent to deliver is vacated, and the conviction for delivery of a controlled substance is affirmed. Because the six-year sentence imposed by the trial court for delivery of a controlled substance is the minimum sentence defendant could receive, no prejudice will result by our affirmance of the sentence. See Shimkus, 135 Ill. App. 3d at 990, 482 N.E.2d at 200.

Accordingly, the judgment of the circuit court regarding defendant’s conviction for calculated criminal drug conspiracy is reversed. His conviction for possession of a controlled substance with the intent to deliver is vacated, and his conviction for delivery of a controlled substance is affirmed.

Judgment reversed in part, vacated in part, and affirmed in part.

McNAMARA and EGAN, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    ARNOLD SCHUSTERMAN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION et al., Defendants (Sheldon Berger et al., Defendants-Appellees).
    First District (6th Division)
    No. 1—89—2092
    Opinion filed March 16, 1990.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellant.
    Rooks, Pitts & Poust, and Sidley & Austin, both of Chicago, and Northwestern University Office of Legal Affairs, of Evanston (Jerome N. Groark, Patricia Cari Nowak, Fredrick J. Artwick, Amy D. Mayber, Mary M. Hachenburg, Michael C. Weston, and James M. Perry, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff brought an action against defendants, Sheldon Berger, Neil J. Stone, Joseph J. Skom, Robert L. Murphy, James V. Talano, and Frank Krumlovsky, seeking damages for personal injuries allegedly sustained as a result of negligent- medical treatment by them. Plaintiff’s claims against defendants were dismissed with prejudice pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) for lack of diligence in effecting service of process. Plaintiff filed a notice of appeal challenging the dismissal of his claims against defendants. Prior to oral argument before this court, plaintiff entered into a settlement agreement with defendants Murphy, Talano, and Krumlovsky. Consequently, only Berger, Stone and Skom remain as defendants, and plaintiff appeals the dismissal of his claims against them.

The record reveals that on May 9, 1985, plaintiff filed a complaint naming Mark Minaban, a podiatrist, as a defendant and seeking damages for personal injuries allegedly sustained through negligent medical treatment. On August 13, 1985, plaintiff was granted leave to file an amended complaint naming additional parties, including defendants, and a special process server selected by plaintiff was appointed to effect service on defendants. Plaintiff claimed that he suffered personal injuries as a result of negligent medical treatment by defendants between October and December 1984. Summonses were issued against defendants on August 15, 1985, but the special process server’s affidavits of service were not filed with the court until July 21, 1988. The special process server’s affidavit reflected that defendants were not served personally, but summonses for them were left with their business partner, David S. Oyer, on August 16, 1985. Although other defendants appeared and participated in discovery, the individual defendant doctors did not appear in the action.

On October 14, 1988, plaintiff caused alias summonses to issue for the defendants, and defendants were personally served. Defendants Stone and Skom filed general appearances and motions to dismiss the complaint pursuant to Supreme Court Rule 103(b), contending that plaintiff failed to exercise due diligence in serving them. Defendant Berger initially filed a special and limited appearance and a motion to quash the summons and to contest the court’s jurisdiction over him. Berger subsequently withdrew his motion to quash summons, entered a general appearance, and filed a Rule 103(b) motion to dismiss.

The trial court found that the attempt to serve defendants in 1985 was clearly improper and that plaintiff was not justified in waiting almost two years before having alias summonses issued and served upon defendants. Accordingly, the court granted defendants’ motions and dismissed plaintiff’s claims against them with prejudice, finding that there was no just reason to delay enforcement or appeal of the order (107 Ill. 2d R. 304(a)).

Plaintiff initially contends that the filing of general appearances in 1988 precluded defendants from challenging plaintiff’s exercise of due diligence in effecting service.

Plaintiff has attempted to frame this issue as one of jurisdiction over defendants. The case does not, however, present a question of jurisdiction. Rather, the controversy centers on the issue of plaintiff’s diligence in effecting service upon defendants.

Plaintiff asserts that because defendants did not enter special and limited appearances to contest jurisdiction, they were precluded from raising an objection under Supreme Court Rule 103(b). In support of this assertion, plaintiff argues that defendants’ filing of general appearances in 1988 conceded personal jurisdiction over them and operated as general appearances in response to the defective service of defendants in 1985. This argument is without merit.

As the record reflects, the attempt to serve defendants through a business partner in 1985 was wholly ineffective and did not confer personal jurisdiction over them. (Ill. Rev. Stat. 1985, ch. 110, par. 2—203(a).) Because they had not been served and were not subject to the jurisdiction of the court, defendants were not required to appear at that time or to file any pleadings in response to the invalid service in 1985. Janove v. Bacon (1955), 6 Ill. 2d 245, 128 N.E.2d 706.

In October 1988, plaintiff caused alias summonses to be issued for each of the defendants who had not been previously served, and defendants were then personally served without difficulty. The service of defendants in October 1988 automatically conferred personal jurisdiction over them. (Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212, 511 N.E.2d 861; In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 463 N.E.2d 955.) At that time, the court could properly exercise personal jurisdiction over defendants, whether or not they filed appearances or responsive pleadings. Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 511 N.E.2d 861.

After being served in 1988, defendants filed appearances and motions to dismiss under Rule 103(b). The trial court examined the record and found that plaintiff had not exercised due diligence where defendants had been named in August 1985 but were not personally served until October 1988.

A motion for a Rule 103(b) dismissal is not the equivalent of a motion for dismissal for lack of jurisdiction. (Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 835, 540 N.E.2d 966, 968; Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill. App. 2d 86, 88, 217 N.E.2d 369, 371.) Upon being served in 1988, defendants properly moved for dismissal under Rule 103(b). They did not, indeed could not, challenge the court’s jurisdiction over them because they had been personally served in October 1988. Defendants did, however, argue that plaintiff had failed to exercise due diligence in effecting service where they had not avoided service and were eventually served without difficulty. Defendants did not claim that the trial court lacked jurisdiction, but on the contrary, specifically invoked the court’s jurisdiction by requesting that plaintiff’s claims be dismissed under Rule 103(b). (See Caliendo, 70 Ill. App. 2d at 88, 217 N.E.2d at 371.) Defendants did not raise a jurisdictional objection, and the trial court’s dismissal of plaintiff’s claims against defendants was not predicated upon a lack of personal jurisdiction. Thus, although plaintiff is correct in stating that a general appearance will confer jurisdiction (Meldoc Properties, 158 Ill. App. 3d 212, 511 N.E.2d 861), this principle has no relevance to the case at bar. The court’s personal jurisdiction over defendants attached when they were personally served in October 1988, which was prior to their filing of general appearances. Contrary to plaintiff’s claim, the defendants’ general appearances were appropriate after personal service upon them in 1988 and had no bearing or effect on the defective service attempt in 1985.

Because defendants were not served until 1988, they had no opportunity to file a motion under Rule 103(b) until that time. (Martinez v. Erickson (1989), 127 Ill. 2d 112, 118, 535 N.E.2d 853, 856, discussing Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586.) Defendants were under no obligation to file motions to quash the invalid 1985 service either in 1985 or in 1988, and the filing of general appearances and motions to dismiss did not constitute waivers of their rights to raise a defense under Rule 103(b). See Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 974, 496 N.E.2d 323, 328; Meyer v. Wardrop (1976), 37 Ill. App. 3d 243, 248, 345 N.E.2d 762, 766; Caliendo, 70 Ill. App. 2d at 88, 217 N.E.2d at 371.

Moreover, plaintiff cannot assert that defendants waived any objection under Rule 103(b) by participating in the litigation where defendants promptly filed motions under Rule 103(b) and where the record contains no evidence that defendants engaged in discovery or in any way defended the action on its merits. (Montero v. University of Illinois Hospital (1978), 57 Ill. App. 3d 206, 211, 372 N.E.2d 1010, 1014.) Active participation in the defense of an action on its merits is the only kind of activity which can amount to a waiver of an objection under Rule 103(b). Daily v. Hartley (1979), 77 Ill. App. 3d 697, 703, 396 N.E.2d 586, 591.

Consequently, defendants have not waived their rights to raise objections under Rule 103(b), and the filing of general appearances after personal service in 1988 had no effect upon the prior invalid service attempt in 1985.

We next consider whether plaintiff exercised due diligence in effecting service upon defendants.

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 107 Ill. 2d R. 103(b).

The purpose of this rule is to protect defendants from unnecessary delays in the service of process and to prevent the circumvention of statutes of limitation. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 900, 414 N.E.2d 1262, 1266.) Yet, this rule is not based upon the subjective test of plaintiffs’ intent but rather upon the objective test of reasonable diligence in effecting service. (Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 639, 314 N.E.2d 473, 476.) The burden is on the plaintiff to show that he has exercised reasonable diligence to obtain service (Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 264, 273 N.E.2d 270, 272), and the defendant need not establish that he has been prejudiced by the delay (Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 291, 492 N.E.2d 1, 6; Greenwood v. Blondell (1980), 85 Ill. App. 3d 186, 188, 406 N.E.2d 204, 206).

Although each case must be decided on its own particular facts and circumstances, the factors a court may consider in entering a dismissal under Rule 103(b) include (1) the amount of time taken to obtain service; (2) the efforts of the plaintiff; (3) plaintiff’s knowledge of the defendant’s location; (4) the ease with which defendant’s location could have been determined; (5) actual knowledge by the defendant of the pendency of the action; and (6) special circumstances affecting plaintiff’s efforts. (Gatto, 142 Ill. App. 3d at 288, 492 N.E.2d at 4; Greenwood, 85 Ill. App. 3d at 188-89, 406 N.E.2d at 206.) Dismissal under Rule 103(b) is within the sound discretion of the trial court, and the court’s judgment will not be disturbed absent an abuse of discretion. Segal v. Sacco (1988), 175 Ill. App. 3d 504, 506, 529 N.E.2d 1038, 1039; Viking Dodge, Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 188, 514 N.E.2d 248, 250; Gatto, 142 Ill. App. 3d at 288, 492 N.E.2d at 4.

Review of the record in the instant case reveals that defendants were named as parties to the action in August 1985, but were not properly served until October 1988, almost two years after the expiration of the statute of limitations and almost four years after the alleged incidents of medical malpractice. Plaintiff took no action to effect proper service on defendants between August 1985 and October 1988. The fact that defendants were available and amenable to service is evidenced by the ease with which plaintiff ultimately served them in 1988. Plaintiff could have easily obtained the business and home addresses of defendants through local telephone directories. Although plaintiff contends that special circumstances exist in that he relied on the affidavit of service by the special process server, this claim is without merit because the affidavit was not sworn to or filed with the court until July 1988. Consequently, plaintiff could not have relied on it from August 1985 to July 1988. Moreover, because the affidavit clearly reflects that no personal service of defendants had been accomplished, plaintiff’s reliance on it was unreasonable.

A party to a lawsuit has a nondelegable duty to take all necessary steps to bring his case to a prompt conclusion. It was the plaintiff’s duty here to have the summonses issued by the clerk and delivered for service by the sheriff or a special process server and to see that a prompt and proper return was made by the process server. Plaintiff’s failure for over three years to obtain proper service of the summonses shows a lack of due .diligence. (See Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 129, 501 N.E.2d 367, 369.) Prior invalid service does not relieve the plaintiff from his burden to obtain valid service of process within the diligence requirements of Rule 103(b). (Viking Dodge, 161 Ill. App. 3d at 189, 514 N.E.2d at 250.) The successful service of defendants in 1988 demonstrates that they were amenable to service at an earlier date, if plaintiff had been diligent in effecting it. In the absence of a satisfactory explanation, the delay in effecting service on defendants clearly was unreasonable. (Gatto, 142 Ill. App. 3d at 288, 492 N.E.2d at 5.) Defendants were under no obligation to show that they had been prejudiced by the delay in service. (Gatto, 142 Ill. App. 3d at 291, 492 N.E.2d at 6; Greenwood, 85 Ill. App. 3d at 188, 406 N.E.2d at 206.) Although controversies should ordinarily be resolved on their merits after both sides have had their day in court, plaintiff may not now complain where the dismissal resulted from his own lack of diligence in effecting service. Montero, 57 Ill. App. 3d at 210-11, 372 N.E.2d at 1013.

In asserting that he has exercised due diligence in serving defendants, plaintiff relies primarily on Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 520 N.E.2d 783. Plaintiff’s reliance on this case is misplaced because it is factually distinguishable from the present situation. In Jarmon, the plaintiff attempted to locate the defendant by checking the following sources: United States Post Office, Chicago metropolitan area telephone directories and information service, and the Secretary of State. A process server was hired to locate defendant and interrogatories were directed to a codefendant inquiring as to the address of defendant. The codefendant did not provide the address of the defendant and failed to produce him for deposition as requested. After all of the above proved fruitless, plaintiff caused an alias summons to be issued. After the alias summons was returned “not found,” plaintiff caused a second alias summons to be issued against defendant which was also returned “not found” after three attempts at service. Plaintiff finally served defendant through the Secretary of State.

The facts in the present case do not indicate that plaintiff’s efforts compare to the exhaustive efforts taken in Jarmon. Rather, the record reflects that plaintiff failed to exercise due diligence in effecting service upon defendants until almost two years after the expiration of the statute of limitations.

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

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE McNAMARA

text:
    E.L. KAPLAN TRUCKING COMPANY, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stephen Hudson, Appellee).
    First District (Industrial Commission Division)
    No. 1—88—3554WC
    Opinion filed March 16, 1990.

      Jobin & Flynn, of Chicago, for appellant.
    Sherman & Gray, of Chicago (Thayne D. Gray and Eugene T. Sherman, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Stephen Hudson, brought an action under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) seeking to recover temporary total disability benefits and medical expenses for injuries which he sustained while employed by respondent, E.L. Kaplan Trucking Company. Following a proceeding pursuant to section 19(b — 1) of the Act, the arbitrator awarded claimant temporary total disability benefits in the sum or $158.87 per week for a period of 343/7 weeks and medical expenses in the sum of $315. The arbitrator’s findings and award were upheld by the Industrial Commission (Commission), and the circuit court of Cook County confirmed the decision of the Commission. Kaplan appeals, contending that the benefits were improperly awarded because claimant failed to establish that he was currently unable to work at the time he filed his petition for an expedited hearing under section 19(b — 1).

On July 14,1986, claimant was employed by Kaplan and was assigned to a parking lot repair project. Claimant sustained a back injury while lifting a car stop. He took some pain medication and finished the work day. Later that evening, he sought medical attention at Glenbrook Hospital. He was examined, given pain medication and muscle relaxants, and was told not to work for five to seven days. Claimant returned to work on July 18. That same day, he reinjured his back. On July 18, Kaplan terminated claimant’s employment.

Claimant was examined after reinjuring his back. His physician prescribed medications and advised claimant not to work. Claimant received treatment from his physician nine times during the period from August 1986 to March 1987. He attempted to return to work in August, September and November 1986, but was unable to do so because of continuing back problems. In mid-March 1987, claimant was released to work by his doctor but was told to avoid heavy lifting.

Claimant filed his application for adjustment of claim on January 30, 1987, and filed his petition for immediate hearing under section 19(b — 1) on June 23, 1987. The section 12(b — 1) hearing was held on August 5 and 12, 1987.

Kaplan contends that the Commission erred in allowing this matter to be heard on an expedited basis because claimant failed to present any evidence that at the time of the hearing claimant was temporarily totally disabled. Kaplan maintains that under both the requirements of section 19(b — 1) and the rules of the Commission, claimant must provide evidence of a current inability to work.

Section 19(b — 1) was added to the Act in 1983 (Pub. Act 83—1051, eff. July 1, 1984 (amending Ill. Rev. Stat. 1983, ch. 48, par. 138.19)), and provides in pertinent part as follows:

“(b — 1) If the employee is not receiving medical, surgical or hospital services as provided in paragraph (a) of Section 8 or compensation as provided in paragraph (b) of Section 8, the employee, in accordance with Commission Rules, may file a petition for an emergency hearing by an Arbitrator on the issue of whether or not he is entitled to receive payment of such compensation or services as provided therein. Such petition shall have priority over all other petitions and shall be heard by the Arbitrator and Commission with all convenient speed.
Such petition shall contain the following information and shall be served on the employer at least 15 days before it is filed:
* * *
(x) a copy of a signed report by a medical practitioner, relating to the employee’s current inability to return to work *** or such other documents or affidavits which show that the employee is entitled to receive compensation ***. Such reports, documents or affidavits shall state, if possible, the history of the accident given by the employee, and describe the injury and medical diagnosis, the medical services for such injury which the employee has received and is receiving, the physical activities which the employee cannot currently perform as a result of any impairment or disability due to such injury, and the prognosis for recovery.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b—1).)

The rules of the Commission provide that a claimant may file a section 19(b — 1) petition if

“A) he is unable to work because of a disability compensable under the Illinois Workers’ Compensation Act *** and B) he is not receiving temporary total disability [and] or medical, surgical, or hospital benefits to which [he] is entitled under Section 8(b) or 8(a) of the [Workers’ Compensation] Act.” (Emphasis added.) (50 Ill. Adm. Code §7020.80(b)(1) (1985).)

Thus, both the Act and the rules require that a claimant show a present or “current inability” to work in order to be entitled to the emergency and expedited benefits of section 19(b — 1). See Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222 (the language of a statute is to be given its plain and ordinary meaning).

Here, claimant failed to show a current inability to work and, in fact, presented evidence that he was working at the time he filed his section 19(b — 1) petition. Claimant argues, however, that a current inability to work is not a prerequisite for a section 19(b — 1) determination. Rather, claimant maintains that section 19(b — 1) requires only that the petitioner not be receiving medical, surgical or hospital services as provided in section 8(a) or compensation as provided in section 8(b) of the Act.

It is true that in order to be entitled to a section 19(b — 1) hearing, a claimant must not be receiving benefits as provided for in section 8(a) or section 8(b) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b—1).) Nonetheless, this requirement is merely a threshold inquiry. Section 19(b — 1) specifically delineates 13 items which “shall” be included in the petition. (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(b—1)(i) through (xiii).) The language of the statute is mandatory, not discretionary. More significantly, the language of the statute is unambiguous and, in our view, is to be given its ordinary meaning.

Our conclusion is consistent with the Commission’s rules, which specifically provide that a claimant may apply for section 19(b — 1) relief if that claimant “is unable to work” because of disability. (50 Ill. Adm. Code §7010.80(b)(1) (1985).) Moreover, our conclusion is consistent with the legislative history surrounding the adoption of section 19(b — 1). The house debates on the amendment adopting that section specifically indicate that the section is intended to address those situations in which an employer is not paying temporary total disability payments and the claimant cannot return to work. (83d Ill. Gen. Assem., House Proceedings, June 16, 1983, at 36.) Thus when a claimant is able to work, the benefits of the expedited proceedings under section 19(b—1) are not available to him. Accordingly, in our judgment, claimant does not meet the requirements of section 19(b — 1), and the Commission improperly heard his petition.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.