text:
    (No. 75-CC-0916
    A & T Movers, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 8, 1980.

    Thomas R. Reese, for Claimant.
    William J. Scott, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

Claimant seeks payment for costs incurred in the moving of approximately 147 alleged public aid recipients in the amount of $15,729.33.

An investigation of this claim was made by the Illinois Department of Public Aid (hereinafter referred to as IDPA) which determined that only $137.50 of the claim could be allowed.

At a scheduled hearing on this matter, the suggestion was made that the matter might be resolved should IDPA agree to an award of $500.00 to Claimant. Because of the costs and time involved in trying a case of this nature, the attorneys for the parties agreed to this suggestion whereupon the offer was transmitted to IDPA.

After review of the case, IDPA agreed to settle this matter for the sum of $500.00. A joint stipulation was prepared, signed by the attorneys for the parties and filed with the Clerk of the Court of Claims.

This Court was created to adjudicate claims against the State of Illinois on the basis of its own determination of law and fact. As such, the Court has held that it is not bound by an agreement reached between the parties, but will review any such agreement to determine its propriety.

This Court is also mindful of the complexities of proof in cases such as this. The time and expense involved in presenting evidence for and against a claim involving 147 separate transactions is substantial. Where the parties agree to compromise a claim, this Court should not and will not arbitrarily set aside such an agreement absent an indication of possible fraud or duress on the part of one of the parties. There is no such indication present here.

Wherefore, this Court awards to Claimant, A & T Movers, the sum of $500.00 in full satisfaction of any and all claims for services rendered prior to January 1, 1978.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 75-CC-1124
    Rosemary Ponds, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 6, 1979.

      (Rehearing denied April 6, 1980)

    SCHEFFRES & ScHEFFRES; ZAIDENBERG, HOFFMAN & Schoenfeld, for Claimant.
    William J. Scott, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Rosemary Ponds, Claimant, to recover for personal injuries.

On March 29,1974, Claimant, 32 years of age, fell in the premises of the Illinois State Unemployment Office in Rockford, Illinois, injuring herself.

The morning of the occurrence was one of drizzly rain. Claimant had been laid off by the Quaker Oats Company in Rockford, Illinois, and was going to the unemployment office to register for unemployment compensation.

She entered the office at approximately 9:30 a.m., entering the vestibule to the office through a self-activating door, and then pushed open a second door to enter the office itself. As she walked in, she slipped and fell and came down on her buttocks with one leg partially under her.

An eye-witness, Johnny Young, described the event as follows:

“Right as she took her hand off the door, you know just to take another step, she slipped and fell down right there in the middle of the door right as you come in.”

After she fell, but not before, she noticed that the floor was wet, made of tile, and that there was no mat or carpeting at the point where she fell. She suffered a severe pain shooting through her buttocks and up her spine and she needed help to get up as she was unable to get up by herself.

Witness Johnny Young testified as follows:

“Well, I think it was raining, snowing a little bit, too, maybe. It was wet. The condition of the floor at the place where she slipped and fell was that there was little puddles of water in the door section. You couldn’t miss it. I stepped over it when I came in. I didn’t want to step in it. I put a shine on my shoes. I definitely didn’t want to get them messed up, so I jumped right over them.”

On cross-examination, he further testified:

“I saw no one attempt to mop up the floor. No, no one attempted that. Water was there. A lot of people was jumping over it, stepping around it if they could. I was noticing this.”

At the time of the accident, no mats of any kind had been placed upon the area where Claimant fell but following the accident, three mats were placed upon the floor.

Claimant suffered a possible herniated disc with functional symptoms that continued for a long period of time. She was disabled from work for a considerable period.

The first point argued by Respondent in its brief is the following:

“Execution by Claimant of a covenant not to sue for $5,000.00 operated as a release of Respondent.”

Paragraph 12 of Claimant’s additional counts to complaint is as follows:

“12. That the plaintiff brought suit in the Circuit Court of Winnebago County on account of said injuries against Peter Graceffa and Ray C. Graceffa, Case No. 75-1937, and that to-wit the 18th day of September, 1975, this matter was settled on a covenant not to sue in the sum of $5,000.00.”

The covenant document was not attached to the complaint, introduced into evidence at any hearing of this cause, or otherwise filed in the record. Respondent at no time requested that the document be produced. The issue of the covenant not to sue, an affirmative defense, has been raised for the first time by Respondent in its brief.

Respondent argues that the “covenant not to sue” was in fact a release. There is no way to consider this argument because the document is not in the record. There is no way to determine what its provisions might be or their possible effect as a release.

The principal issue before the Court is whether the Respondent was guilty of negligence. It is apparent from the evidence introduced at the hearing that the weather was bad, either raining or snowing, or both, that the floor was wet, and that the condition of the floor was visible. One witness testified to the fact that in order to save a new shoe shine, he had stepped over the water on the floor and avoided the area that caused the accident.

This Court has previously passed upon similar sitúations and laid down certain principals: Dublé v. State, 26 Ill. Ct. Cl. 87 and Lindberg v. State, 22 Ill. Ct. Cl. 29. In the case of Thriege v. State, 24 Ill. Ct. Cl. 470, the Court laid down the rule that before a Claimant can recover, it must be proved (1) that Respondent was negligent, (2) that such negligence was the proximate cause of the injury, and (3) that Claimant was in the exercise of due care for her own safety. This rule is also followed in 30 Ill. Ct. Cl., 242.

It is apparent from the record that due to the conditions that existed because of the weather on the morning of the accident in question, the wet or slippery conditions could, or should, have been anticipated. The fact that other people using the same facilities saw and avoided the wet floor is indicative of the fact that Claimant could have, and should have, anticipated the accident as it took place by reason of Claimant not avoiding the area in question.

Claimaint having failed to furnish proof in this cause, this claim is hereby denied.


author: POCH, J.

text:
    (No. 75-CC-1174
    Midwest Truck Sales and Auto Disposal and James Smith, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 3, 1979.

    Maurice W. Keener, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimants filed a claim for $13,476.50 for rent alleged to be due for the storage of nine vehicles, from February 4, 1972 to December 19, 1974.

1. On February 4, 1972, a representative of the Investigative Unit, Motor Vehicle Division, Secretary of State of Illinois, petitioned for and was granted a search warrant by the Circuit Court of Sangamon County. Pursuant to said warrant the Secretary of State investigators on February 4, 1972, seized certain motor vehicle cabs and beds from the premises of Neville’s Auto Parts in Sangamon County, Illinois, and arrested Clarence Neville.

2. On February 4, 1972, said Secretary of State investigators took said items to the place of business of the Claimant, James Smith, at 2715 South 11th Street, Springfield, Illinois, known as Jim’s Towing Service. Said investigators advised James Smith that they had seized these items under a search warrant, that they were to be held as evidence, and requested him to provide inside storage for same.

3. In May 1973, Jim’s Towing Service went out of business, but James Smith continued to rent the building wherein the aforesaid items were stored until November 1973, when he had to give up the building. In November 1973, at James Smith’s request, Midwest Truck Sales and Auto Disposal took over the storage of said items and gave them inside storage at its place of business, 420 South 31st Street, Springfield, Illinois, without informing any of the parties.

4. In the summer of 1974, the Secretary of State investigators requested that Midwest get together a complete storage bill because the State’s Attorney wanted it, in connection with the criminal case against Neville. Midwest prepared such a bill at $15.00 per day and gave same to said investigators.

5. Within a few days after Clarence Neville was sentenced on September 16,1974, Delbert Wake, owner of Midwest Truck Sales, advised the Secretary of State investigators that he needed the space where these items were stored and requested that they remove said items and also inquired about payment of the storage bill. He was advised that they would check into the matter and let him know, but he heard nothing from them.

6. Later in September and in October 1974, Claimants, through their attorney, contacted the office of the Secretary of State requesting that the items be removed and that arrangements be made for payment of the storage bill.

7. On November 15, 1974, the Claimants filed a petition in the Circuit Court of Sangamon County for disposition of these items being held by them in storage under the search warrant. The Claimants asked that the Secretary of State, State of Illinois, and the County of Sangamon be made additional parties and gave notice of the hearing on the petition to them as well as to a group of persons claiming some interest in the motor vehicles.

8. On December 6, 1974, the Circuit Court of Sangamon County entered an order on the petition releasing the property from the search warrant, declaring that the Claimants had a storage lien on said items in the amount of $15.00 per day from February 4, 1972, to the date of sale, and ordering the property sold at public sale to satisfy said lien.

9. Pursuant to said order said items were advertised and sold on December 19, 1974, at public sale for $2,275.00. After deducting $16.50 publication costs the balance of $2,258.50 was paid to the Claimants in partial satisfaction of their lien. On January 3, 1975, the Circuit Court of Sangamon County entered an order confirming the sale and decreeing the amount of the deficiency of the Claimants to be $13,476.50.

The issue here is whether the Secretary of State, through one of its employees, entered into a contract for storage with Jim’s Towing Service and Midwest Truck Sales and Auto Disposal.

In taking the claim of Jim’s Towing Service, the applicable law is that in dealing with an agent one must ascertain at his peril, the authority of the agent. The mere assertion by an agent of his powers is not sufficient to bind the principal.

Here, the State’s employee, Mr. Tuttle, had no authority to incur an obligation for the State. Therefore, before accepting the vehicles, the Claimant, James Smith, should have contacted Mr. Tuttle’s superiors to determine the extent of the employee’s authority.

Claimants further contend that even if Mr. Tuttle was not originally authorized to enter into a contractual obligation, he subsequently became authorized when the Secretary of State’s office gave him the name of Jim’s Towing Service and was aware that the vehicles were there.

According to the testimony, the vehicles were stored according to an order from the State’s Attorney’s Office of Sangamon County. Mr. Tuttle called his office to obtain a name of a storage garage, so as to be able to comply with the State’s Attorney’s order. Nothing in these facts indicates that the Secretary of State’s office authorized Mr. Tuttle to enter into a contract. The Secretary of State’s office was merely providing information to its employee so that he could comply with the order of the State’s Attorney.

As to the claim of Midwest Truck Sales and Auto Disposal, there was never any contact between the parties as to storing the vehicles there. The Claimants on their own transferred them to Midwest without the approval of any of the parties concerned. Since there was no knowledge, there could not be a contractual arrangement. Therefore, the claim of Midwest Truck Sales and Auto Disposal should be denied.

It is therefore ordered that the claims of the Claimants be and are hereby denied.


text:
    (No. 75-CC-1177
    Farron Forbeck et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 14, 1980.

    David Haskins, for Claimants.
    William J. Scott, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court as a result of damage caused by a flood to farmland owned by Claimants in Bureau County near the City of Bureau, Illinois.

It appears that on May 17, 1974, a very heavy rain occurred as a result of which a flood allegedly caused damage to farmland owned by Claimants. The flood was a combination of heavy spring rains and high water in Bureau Creek and its branches.

The evidence is uncontradicted that the Claimants’ land is located in a flood plain and that flooding was not unusual in this particular area. The evidence indicates that this was one of the heaviest floods that had occurred in that area and that it was one that will probably only happen once every 50 to 100 years.

The evidence shows that in February and March of 1974 the United States Army Corps of Engineers, working in conjunction with the Illinois Department of Conservation, implemented an emergency construction project along the Illinois-Mississippi (Hennepin) Canal after Bureau Creek, a natural river, had breached the banks of the canal in January of that year. In addition to restoring the breach of the south bank of the canal, the work consisted of creating a series of inlets known as notches, along the south bank. Work was pursuant to a design prepared by the Corps who inspected and supervised the project. The State of Illinois, which owned the canal, provided the manpower to implement the Corps’ plan. The purpose of the baffles was to prevent rapid rushes of water through the canal which had occurred in the past when Bureau Creek had flooded. The purpose of the inlets was to enable water escaping from Bureau Creek to flow into the canal at pre-planned points, thereby allowing the water pressure to be dissipated and slowed and allowing the water level to become gradually equalized between the creek and the canal.

It appears that the canal, at the time of the storm in question, was empty and that the notches extended some three to four feet below the level of the canal bank. Claimants contend that the proximate cause of the damage was the State’s negligence in cutting, or permitting the Corps to cut, notches in the south bank. Farron Forbeck, one of the Claimants, testified that on the date in question, he saw water coming through the notches. He was the only eye witness produced by Claimants and it was his testimony that as a result of the flooding, he lost crops for 1974 and, to a lesser extent, for 1975, that he lost a measurable amount of topsoil, and that it would be necessary for him to construct a ten-foot-high levee between his property and the canal in order to prevent future flooding.

It is the Respondent’s contention that the heavy rains which produced the flooding caused the damage of which Claimants complain. In all, Respondent produced four Department of Conservation employees, two engineers with the Army Corps of Engineers, and a witness expert in hydrology and hydraulics. Based upon their testimony, which was unrefuted by any experts of Claimants, it appeared that the project was undertaken in February and March of 1974, was largely successful despite the flood of May 17, 1974, and that the flood on the date in question was indeed one of record from all available data and that the notches did not contribute to Claimants’ damage since there is credible eyewitness testimony that at or near the crest of the flood the water flowed into and over the tops of the canal banks.

It should be noted that the canal was designed for navigation between the Illinois and Mississippi Rivers and was never intended to be a flood control structure. The work performed was only to enable it to take the overflow of the floods that occurred in the area from time to time.

Respondent’s expert witness, Gil Tavener, is a clearly qualified expert in the fields of hydrology and hydraulic engineering. He was asked the hypothetical question which posed the ultimate issued before the Court:

“Q. Now, Mr. Tavener, based upon the facts that you have heard testified to and the study that you have made thereof, do you have an opinion, assuming those facts to be true, as to whether the Forbeck property would have flooded on May 17,1974, irrespective of whether there were notches present in the south bank of the canal?
A. I certainly do.
Q. And what is that opinion?
A. I’m quite certain that this property would have been inundated by water regardless of whether the canal was even there or not.”

Tavener’s opinion was based upon a carefully constructed case which showed that based upon eyewitness testimony and elevations taken by Department of Conservation employees, the flood waters ran above Route 29, at which point they were almost ten feet above the highest point on Claimants’ property and at least six feet above the top of the canal bank. Tavener’s opinion was also based upon extensive research conducted by him in connection with an evaluation of the canal in behalf of an engineering firm in 1975 for which he was a consultant and chief hydraulic engineer. During this period, he had occasion to read many publications concerning the waterway system in Bureau and inspected the canal and creek. He also had the benefit of gauge station readings and prior records of high water in the area.

There was also some testimony offered by Respondent that the farm acreage of Claimants’ property had been gradually extended over the years at the cost of removing natural erosion retardants, such as trees and timber, and the filling in or rerouting of natural drainage-ways. These actions may have contributed to the damage sustained by Claimants on May 17, 1974.

Finally, whether the flood on May 17, 1974, can be characterized as an act of God is a close question. The Court feels, however, that it is not necessary for us to reach this issue. The Court believes that Claimants have failed to establish that the Respondent was in any way negligent and that the conduct of the Respondent was the proximate cause of the damage sustained by them.

This claim is denied.


text:
    (No. 75-CC-1194
    Central Office Equipment Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 5, 1979.

    David Eckstein Goldman, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant seeks recovery in the sum of $1,293.98 for materials furnished to complete a storage rack system installed in the Secretary of State’s License Plate Facility at Industrial Park, south of Springfield. The payment was not authorized by the Secretary of State’s office because there was no purchase order or agreement entered into.

The Respondent contends that the claim is one resting on quantum meruit and that such cannot be a basis for a claim against the State, citing People v. Winston (1948), 399 Ill. 311, 77 N.E.2d 665.

Claimant entered into a contract to supply a rack storage unit for the Secretary of State at a new facility on Dirksen Parkway. The contract was awarded to Claimant in September 1972. In the following August or September, the Claimant was advised to install a pallet rack in the old facility at Industrial Park rather than the new facility.

To make the installation at the new location required extra parts. He was informed verbally to proceed to the completion “no matter what it costs.”

It thus appears that Claimant proceeded in good faith to order the parts and install them but they weren’t paid for because no prior purchase order had been issued — just a verbal authorization.

No claim is made for the contract price as originally bid and payment in full of such amount has been made. The claim is only for needed extras required in changing the job from the new site to the old facility.

The statute says, “. . . a purchase order emanating from an office or official authorized to obligate the funds of the State is a prerequisite to the establishment of an obligation . . . against the State”

“It is well established that Quantum Meruit does not lie against the Sovereign. There are statutes dealing with State purchases and there are rules and regulations. These statutes, rules and regulations are all published and available to any vendor who cares to acquaint himself with them.”

It may very well be that this seems to be a harsh treatment of the matter. On the other hand, to allow quantum meruit in this instance would establish a precedent that could very well be the basis for a greater evil — expending public funds without a proper authorization in the first instance.

Claim denied.


text:
    (No. 75-CC-1214
    Michael J. Padgett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 7, 1979.

    James Drake, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The issue before this Court is the amount of damages to be paid to the Claimant who was discharged from the Department'of Transportation on or about February 13, 1973. Claimant was a probationary employee of that department. The Claimant filed a complaint in the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, against the State and various State officers under Case No. 132-73. A final judgment order ruling that the discharge of the Claimant was void and of no force or effect and ordering appropriate writs of mandamus to issue for the payment of all back salaries and wages to the petitioner. That order was not appealed and remains in full force and effect.

A stipulation between the Claimant and Respondent was entered into that if the Court finds liability on the part of the State of Illinois for the full amount of wages minus set-offs of other earnings, the earnings, set-offs and withholdings and contributions by the State, the total amount due to the Claimant would be $12,408.62 in lost wages.

As part of the stipulation there was a report by the Department of Transportation which shows that the Claimant was discharged by the department and was ordered reinstated by the Circuit Court of Sangamon County with back wages. The payment of back wages was not made because the appropriation had lapsed.

Claimant testified that he sought other employment, but found only part time work. He also attended a vocational school to learn the upholstery trade. There is no evidence to suggest that the Claimant would have found employment had he not gone to school. Nor is there any authority cited to suggest that a person who has been wrongfully discharged from State employment is prohibited from attempting to educate himself in order to fit into the job market. The Claimant has done all possible to mitigate his damages.

Accordingly it is the opinion of this Court that the stipulated amount totaling $12,408.62 be awarded to the Claimant, Michael J. Padgett.


author: Per Curiam.

text:
    (No. 75-CC-1366
    Camosy, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 13, 1979.

    David L. Schiavone, for Claimant.
    William J. Scott, Attorney General (Carl J. Klein, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises:

This Court finds that this claim is for time lost and other costs involved in the delay in installation of a sanitary sewer for the Mental Retardation Facility, Department of Mental Health, Waukegan, Illinois. An investigation of this claim by the Capital Development Board determined that the delay was caused by the Respondent’s failure to obtain a required sewer permit causing the job to be stopped, and that after a thorough examination and audit it was determined that $100,000.00 was a fair, legal and proper figure to reimburse Claimant for time lost plus $25,000.00 retained from Claimant in a progress payment.

It is hereby ordered that the sum of $125,000.00 be hereby awarded to Claimant, Camosy, Inc., in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 76-CC-0333
    Margaret Czaska, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 18, 1979.

    Stephen G. Pinto (Leo M. Bleiman, of counsel), for Claimant.
    William J. Scott, Attorney General, and Dunn, Brady, Ulbrich, Morel & Jacob (Kenneth C. Kombrink, Special Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, Margaret Czaska, age 22, was on April 10, 1975, a student attending Northeastern Illinois University at Chicago, Illinois. Claimant testified that on the afternoon of the date she had completed a class at the University and was in the company of one James Freezor driving her automobile from the parking lot on the University grounds. While driving on an exit road toward Foster Avenue, her car hit what has been determined to be an elevated sewer manhole cover. From a report filed by the University, the manhole cover was elevated about three inches and there were chuckholes on either side of the manhole cover approximately four inches deep. Claimant testified that the weather was wet and it was muddy. The chuckholes in question were “filled with water and not obvious to driver”. Claimant testified that her automobile stopped abruptly; that her head hit the steering wheel and she was thrown back. She further testified that her passenger was also injured. She stated that both were treated at the University Health Service Center. She was taken to Swedish Covenant Hospital where, stitches were taken in her mouth and lip; the stitches were later removed by Dr. Clarence Peckler. Her front teeth were injured in the impact with the steering wheel. She stated that she was treated by her dentist, Dr. Henry N. Rowblewski. As a result of the accident she was troubled with blurring vision. She stated that she was treated by Dr. Perry Ross, an eye doctor, who prescribed prescription eyeglasses for her. Her eyes continued to bother her so she saw Dr. Chester Nowak who prescribed eye exercises for her which improved the eye condition. She testified that her eyes are now fine. At the time of the accident she was employed as a checker for the Jewel Company at a salary of $40.00 to $50.00 per week; that she lost four weeks from her employment. The cost to repair her automobile amounted to $687.98. As a result of the accident she now has a small scar on her lip.

On cross-examination, she stated that the road in question was a gravel road and, though there was being constructed a building nearby, the road in question was open to traffic and students were using it and that the road was very bumpy.

. Melvin Andrew Skvarla, campus planning officer of the Respondent University, called as a witness for Respondent, testified that the Capital Development Board of the State of Illinois was putting in a new parking lot and tennis court at the University. In the performance of its work, the contractor was ordered to put in a temporary or construction road, this being the road on which this accident happened.

On cross-examination, he stated that there were no markings; that the area was a construction site and that no fence or anything else was erected to prevent the free use of the road in question. There was no official notification by the University that the students were not to use the road.

Claimant’s special damages are as follows:

Swedish Covenant Hospital $ 45.25

Dr. Clarence A. Peckler 35.00

Dr. Perry Ross 50.00

Sears Roebuck (glasses) 57.95

Dr. Chester J. Nowak 250.00

Loss of wages 200.00

Car Repair 687.98

Towing charge 12.50

Total 1,338.68

It is the opinion of the Court that Respondent was negligent in the operation and maintenance of this “construction” or “temporary” road in that it allowed said road to have an elevated sewer manhole cover that vehicles using the road might come in contact with. The Court finds that the road in question was being used for vehicular traffic by students of the University and the general motoring public and that Respondent was negligent in not barricading the area and in not notifying or warning the motoring public of a dangerous condition. Respondent’s negligence directly caused the Claimant’s injuries herein complained of. There is no evidence of contributory negligence on the part of the Claimant.

The Claimant is awarded the sum of $4,500.00.


text:
    (No. 76-CC-0349
    Paul Poulos, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1980.

    Thaddeus H. Speiser, for Claimant.
    William J. Scott, Attorney General (James O. Stola, of counsel), for Respondent.
   Per Curiam.

This is an action sounding in tort brought by the owner of a building to recover damages for damage caused to the sewer system attached to Claimant’s building, allegedly caused by the negligence of Respondent when it widened the street in front of the building.

During November of 1973, the street in front of 4746-50 W. Peterson, Chicago, Illinois, was widened by Respondent and extensive sewer work was done in connection with the street widening. Pneumatic hammers and other heavy equipment were used. Claimant avers that he had no trouble with the plumbing in his building until the work was done, at which time the tenants complained of a strong sewer gas odor.

Claimant engaged the services of Clarence Persino, a sewer contractor, to solve the problem. The plumbing was rodded out and stores were broken open, but nothing was found which would have caused the odor. Claimant then called the City of Chicago. William Hackett, Mason Inspector for the Bureau of Sewers, recommended another contractor, Folan’s C. Sewerage.

Folan broke a hole in the street and found a pipe that appeared to have been shattered. Mr. Hackett went into the excavation and found that the pipe was separated from its joint by about one inch. He also saw a slight crack in the pipe. He could not, however, see into the pipe or under it. Because of the kind of pipe used, it had to be broken in order to remove it. Mr. Hackett had no way of knowing how long the pipe had been in the ground.

Under cross examination, Mr. Hackett testified that a separation of a pipe such as occurred here can be caused by the settling of buildings in the vicinity. He also testified that this pipe was not exposed when the work was done, on the street and that the heavy machinery used would put no greater weight on the street than normal traffic.

In view of the inconclusive nature of the evidence as to the cause of the damage to the pipe, this Court is of the opinion that Claimant has failed to prove by a preponderance of the evidence that respondent was guilty of negligence.

There is another, more compelling reason why Mr. Poulos’ claim must be denied. Clarence Persino testified that the actual charges for his services was $275. At the direction of the Claimant, he submitted a bill for $550.00. He further testified that Claimant drove him to his bank where Claimant gave him a check for $550.00. The check was cashed and they “split it 50/50.” Claimant denies that any of these events took place.

Section 14 of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.14) is controlling. It provides:

Whenever any fraud against the State of Illinois is practiced or attempted by any Claimant in the proof, statement, establishment, or allowance of any claim or of any part of any claim, the claim or part thereof, shall be forever barred from prosecution in the Court.

Wherefore Mr. Poulos’ claim must be denied.


text:
    (No. 76-CC-0391
    Jimmie Brown, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 30, 1980.

    Arthur D. Zussman, for Claimant.
    William J. Scott, Attorney General (Carl J. Klein, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause filed his claim against the State of Illinois by reason of an accident which occurred on September 21, 1973. At that time, Claimant was a prisoner in custody as an inmate at the Illinois State Penitentiary, Stateville Branch, Joliet, Illinois.

Claimant testified that on September 21, 1973, he had been assigned to a special work detail in the sheet metal shop although that was not his customary work. On that date, he was requested to move a piece of pipe 20 feet long and two inches in diameter from a stack of pipes measuring approximately six feet in height and approximately ten to 12 feet in width. Claimant alleges that the pipes were not properly braced, were improperly supported, improperly stacked, oily, wet and rusty, and that they suddenly separated, striking Claimant in the left hand causing a crushing injury to his left finger as he attempted to pick up a section of pipe from the stack.

Claimant further testified that he had moved pipes from the stack some four or five days before the injury.

After the injury, Claimant was taken to the prison hospital where his finger was x-rayed and bandaged. No other treatment was given to Claimant until approximately 40 days later when he was taken to St. Joseph’s Hospital in Joliet, Illinois, where surgery was performed on the left ring finger and immediately returned to the prison hospital where he received medication for pain.

Claimant testified that he still suffers pain to the left hand as a result of the injury and that he has lost partial use of said hand. The medical report in the file shows that “the alignment of the ring finger and all fingers of the left hand is excellent. There is no intrinsic atrophy or weakness.”

Claimant having failed to sustain a burden of proof that he was free from contributory negligence, this claim is hereby denied.


author: Per Curiam

text:
    (No. 76-CC-0427
    The County of Cook, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 8, 1980.

    Bernard Carey, State’s Attorney (Stewart Gordon, Assistant State’s Attorney, of counsel), for Claimant.
    William J. Scott, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam

Claimant, County of Cook, hereinafter referred to as the County, seeks an award of $586,348.71 which represents the dollar amount of services rendered to the medically indigent by some 70 medical institutions located within Cook County.

This claim is founded upon Ill. Rev. Stat. 1973, ch. 23, par. 12 — 21.15, (Public Aid Code) which provides in pertinent part as follows:

“In counties providing aid under Article VII for persons who fall sick or die in a city, village or incorporated town of more than 500,000 inhabitants or in an unincorporated town which has superseded a township located within such county, the Illinois Department shall reimburse the county for expenses incurred for such aid “ * *
(4) through any other institution or services if the County Department in such county, under the supervision and direction of the Illinois Department determines that the person duly qualified for such aid under Article VII.”

A joint stipulation has been filed in this matter. The Illinois Department of Public Aid, hereinafter referred to as IDPA, has investigated this claim and admitted liability in the amount of $415,660.29. The report of IDPA and its analysis of this claim is attached to the joint stipulation.

Pursuant to the aformentioned statute, IDPA has determined that those claims in which liability has been admitted involved persons who qualified for aid under Article VII of the Public Aid Code.

Respondent and the County have agreed to the entry of an award in the instant case in the amount of $415,660.29,

It is hereby ordered that an award be entered in the amount of $415,660.29 based on the joint stipulation of the parties hereto and the report of the IDPA covering this claim. This award is entered in full satisfaction of all claims by the County which are the subject matter of the instant claim.


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    (No. 76-CC-0543
    Mchenry Woodlands Development, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 13, 1979.

    Roy A. Solfisburg, Jr., for Claimant.
    William J. Scott, Attorney General (John R. Fan-one, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The Claimant, McHenry Woodlands Development, Inc. (“McHenry”) seeks recovery based upon contract from the Department of General Services, now called the Department of Administrative Services. (“Department”) .

Claimant and Respondent entered into a lease whereby the Department was to occupy certain premises owned by McHenry and in return was to pay McHenry rent in the amount of $2,400.00 per month. In addition, the Department agreed to repair any damage to the premises and to surrender the premises to McHenry in good condition.

Both the Claimant and Respondent have agreed that the Department failed to comply with the terms of said lease in that:

1. The Department terminated the lease and failed to pay to McHenry rent for the months of July, August, September and October of 1975 amounting to $9,600.00.

2. The Department caused extensive damages to the premises, its walls, doors, floors, ramps, windows, fence, heating and air conditioning and plumbing systems, and outside parking lot.

3. The Department failed to repair said damage thus requiring repair by McHenry of said damage and to return the premises in good condition at a cost of $9,900.00.

The Court has reviewed the facts set forth in the joint stipulation and considered the legal conclusions agreed upon therein. It appears that the stipulation is thorough, accurate and that it has been entered into legitimately so it also appears to the Court that the facts agreed upon are legally sufficient to sustain Claimant’s cause of action and that the granting of an award would be fair and consistent with the findings.

While the Court is necessarily limited in its findings of fact to the facts presented to it by the parties, it is not bound by a stipulation between the parties as to the amount of an award to be granted, just as it is not bound by such a stipulation in its findings of law.

It is the opinion of the Court however, that based upon the undisputed facts before it the Respondent is liable to the Claimant. The Court is also of the opinion that an award of $19,500.00 is fair reasonable and appropriate and that said sum accurately measures the actual damages suffered by Claimant.

It is hereby ordered that the sum of $19,500.00 be and the same is hereby awarded to the Claimant, McHenry Woodlands Development, Inc., in full satisfaction of any and all claims arising out of the above captioned cause.


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    (No. 76-CC-0581
    James Johnston and Rita Johnston, Claimants, v. The State of Illinois, Department of Public Works and Buildings, Division of Highways, Respondent.

      Opinion filed June 29, 1979

    Rehearing denied September 21, 1979.

    Ronald S. Fishman, for Claimants.
    William J. Scott, Attorney General (Richard Gross-man, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This action arises out of a one-car accident which took place on January 19,1975 at approximately 10:30 to 11:00 p.m. on Higgins Road, also known as Illinois Route 72, at a point where Higgins crosses Interstate 90, also known as Northwest Tollway. The highway is four lanes but only two lanes on the bridge crossing 1-90 and is a construction area.

Mr. Johnston, the driver of the car, and his wife, Rita Johnston, were the only passengers in the car. They had been out for the evening and were on their way home when the accident occurred.

Higgins Road, a four lane divided highway, contains two lanes running in a southeasterly direction and two lanes in a northwesterly direction, separated by a twenty-five foot grassy median strip.

Construction changing Higgins from a two lane into a four lane divided facility, from Illinois Route 58 to Illinois Route 59, began on October 30, 1970, and was completed on November 6, 1972 and accepted by the Illinois Department of Highways on April 22,1973. However, the two lane bridge on Higgins which crossed over 1-90 remained unchanged. This presented an obvious traffic problem since the existing two lane bridge was directly in line with the two northwesterly lanes, there being no bridge at all directly in line with the two southeasterly lanes.

In order to cure this obvious traffic defect, the Highway Department constructed a temporary roadway across the median strip immediately north of 1-90 thereby requiring vehicles traveling in a southeasterly direction to first enter their left lane, make an extremely sharp left turn in order to cross over the median strip, and then enter the opposite two traffic lanes. The vehicles then have to proceed across the bridge and then again cross over the median strip in order to reenter the lanes ordinarily used for southeasterly traffic.

It is admitted that this is a rural area and that there was no artificial lighting or illuminated warning devices in the area of this construction zone. Since this occurrence took place at 10:30 p.m., the area was pitch dark. At the time, the pavement was dry. There were snow flurries, thereby further obscuring the driver’s vision.

Claimant, James Johnston, age 65, residing at 3611 Hillside Road in Evanston for 18 years, retired from International Harvester for four years, testified that after retirement he worked as a clerk in a liquor store at 9961 Gross Point Road in Skokie as a general manager, earning, about $200.00 per week. On January 19,1975, at approximately 10:30 p.m., he and his wife were on their way home from a Howard Johnson Inn in Elgin. This was the first time he had ever used this particular highway. He was driving a 1969 Mercury in a southeasterly direction on Higgins and had travelled about six miles on Higgins. Southeast traffic was extremely light, there being no other vehicles travelling in his direction.

He testified that as he proceeded in the righthand lane at about 40 to 45 miles per hour, he saw some road construction signs that stated “Construction Ahead.” As he proceeded further, he passed several other road construction signs and then saw a row of painted barrels with arrows on them indicating “Keep Left” and so he moved his vehicle from the right lane into the left lane. There were no flashing lights or other illuminated warning devices on the barrels other than the signs that stated “Keep Left.” As he passed by the barrels, there was a truck coming in the opposite direction so he dimmed his headlights. Shortly thereafter, with the barrels to his right the roadway in front of him suddenly ended. He struck a guardrail which was directly in front of him. There were no warning signs indicating that his lane of traffic was about to end or that he was supposed to make a sharp turn to the left in order to go across the median strip into the opposite lane of traffic. He stated:

“The arrows to me as I approached the barrels indicated I was in the right lane. The barrels started at the shoulder up to the center with arrows points which I moved according to the arrows to the left lane and I proceeded for a fair distance with the arrows, which to me told me I was belonging in that lane, because the signs had told me that the right lane was ending and arrows pointed to where I should go and I went to the left lane.”

Claimant contends that he never hit any of the barrels and that the signs on the barrels simply said for his vehicle to “Keep Left” which instructed him to keep out of the right lane, and to stay to the left of the barrels. When he spotted the guardrail, it was too late.

The impact rendered him semi-conscious. His wife, in the right front, was rendered unconscious. They had to wait, trapped in the vehicle, until they were rescued by a passing motorist, and they were rushed to the Northwest Hospital where he remained for two weeks. He noticed he was bleeding from his nose and felt a burning sensation in his chest. His back was broken, requiring him to wear a steel corset. His sternum was cracked. While in the hospital, he couldn’t move because he was extremely * miserable and in considerable and intense pain.

After returning home from the hospital, claimant, James Johnston, was required to remain in bed for another four to six weeks and was out of work for approximately two months. Upon returning to work, he was able to perform only part of his tasks and was required to work on a part-time basis. Because of his injury, he was required to wear a back brace for six months, and during that period time, he experienced low back pain which hurt him most around the waist.

Claimant testified he still has sharp pains in his back, particularly when he twists or moves.

Claimant, Rita Johnston, testified:

“All of a sudden, we ran out of road. There was — a guardrail appeared in front of me about a car’s length ahead, maybe a car and a half ahead, and we hit.
I hit the dashboard and blacked out. And that’s my recollection.”

The area was pitch dark. There were no flashing yellow lights or any other lights in the area.

Claimant, Rita Johnston, experienced very severe pains in her back and legs and remained pinned in the vehicle until she was removed and taken to Northwest Hospital. She remained in the hospital from January 10 to February 4,1975, being treated by orthopedic surgeons and associates. Because she had sustained severe abdominal injuries, she was also treated by another doctor for that condition.

She testified that while she was in the hospital, the pain was very severe and was given pain killers every four hours, was not allowed to move, and was unable to feed herself. Because of the fractured vertebrae in her lower back, she was not permitted to use her hands and had to lay perfectly still. She wore a steel corset for approximately nine months. During that period of time, there was considerable pain in her back which radiated down into her legs, and into her toes.

She was prescribed leg exercises for her deteriorating muscles which had lost considerable strength. She was also treated by an osteopath who gave her some relief from the pain she was suffering.

Because she had to be in a walker after returning home from the hospital, it was necessary for her to hire a housekeeper to take care of her home.

After the steel corset was removed, she was required to wear a rib belt which she still wears occasionally when her back hurts or she gets tired. For a long period of time, she took weekly massages and was required to swim every day. She has to avoid climbing stairs and cannot lift heavy objects.

Mrs. Johnston’s hospital bill was $2,015.35; emergency care, $16.00; Dr. Lidge, $286.00; Dr. Kennedy, $117.00; Dr. Robbins, $42.00; Dr. Nafelski, $300.00; Dr. Mauer, $117.50; x-ray bill, $25.00; additional household help, $260.00; making her total bills $3,278.85.

Mr. Johnson’s medical bills were in the amount of $2,701.00 and his loss time from work was $1,600.00.

He sustained a severe compression fracture to the lumbar spine, fractured ribs and other internal injuries.

The present case is greatly similar to the case of Tyler v. State of Illinois, 26 Ill. Ct. Cl. 231. In that case, the Court laid down the rule that the State of Illinois “has a duty to the traveling public to maintain adequate and proper warning signs or devices alerting the public to unusual and dangerous conditions ahead”.

The Court points out that in the present case there were no lights of any kind or character in operation at the place where the accident occurred even though a hazardous condition existed.

In the case of Perkins v. State of Illinois, 26 Ill. Ct. Cl. 222, the question was whether or not there was proper or sufficient warning of the presence of barricades to the traveling public. In that case, it appeared the State had erected barricades, signs, and flashing signals to properly advise.the traveling public. The evidence was clear that at the time of the crash the lights and warning signals were in operation and the Court properly held that the State had fulfilled its duty to the traveling public.

In the present case, there was a complete absence of lights, either overhead or warning lights, and the traveling public was not, in the opinion of this Court, adequately warned of the existing situation. It is clear from the evidence that the respondent did not adequately protect the public and that claimants were not guilty of contributory negligence.

IT IS HEREBY ORDERED:

That claimant, James Johnston, be awarded the amount of FIFTEEN THOUSAND ($15,000.00) DOLLARS, and claimant, RITA JOHNSTON, be awarded the amount of TWENTY THOUSAND ($20,000.00) DOLLARS.


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    (No. 76-CC-0617
    Lincoln Tower, Claimant, v. The State of Illinois, Respondent.

      Order filed September 10, 1979.

   Per Curiam.

This claim comes before this Court on record which includes Respondent’s stipulation of facts.

Based on the investigation as evidenced by the stipulation of the office of the Attorney General, this Court finds that this is a valid claim.

We, therefore, grant to this Claimant an award in the amount of $72.72.


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    (No. 76-CC-0872
    Marjorie Tyson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 26, 1979.

    Marjorie Tyson, pro se, for Claimant.

      William J. Scott, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This cause coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises.

This Court finds that this claim is for damages sustained by the Claimant to her motor vehicle, when said vehicle was damaged by escapees’, from the Illinois Youth Center, St. Charles, Illinois, pursuant to 111. Rev. Stat., ch. 23, par. 4041. The vehicle in question was damaged by the four students on June 22, 1975. Damages to Claimant’s vehicle have been estimate d at $100.00, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum o'f $100.00 be awarded to Claimant in full satisfaction oif any and all claims presented to the State of Illinois unde r the above-captioned cause.


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    (No. 76-CC-1063
    Robert L. Meade, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 26, 1979.

    Robert L. Meade, pro se, for Claimant.
    William J. Scott, Attorney General (James O. Stola, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim for back pay alleged to be due Claimant, an employee of the Bureau of Employment Security, State Employment Service, Department of Labor, State of Illinois.

The State Employment Service is an agency funded by the Federal Government. In 1975, a financial crisis hit the State Employment Service in that it was determined by Christopher W. Nugent, Employment Security Administrator, budgetary limitations required a paring of the staff. A layoff of employees was attempted but was rescinded. A second layoff was attempted but was stopped by a temporary injunction by the United States District Court. Mr. Nugent thereafter, in order to lessen the economic impact on laid off employees, decided instead to institute a four-day work week for employees in the Bureau of Employment Security as his method of reducing expenditures. The shortened work week schedule was approved as a temporary measure by the Department of Personnel. The institution of this shortened work week was made by Mr. Nugent on June 3, 1975. The plan required every employee of the Bureau of Employment Security to take off one day a week for four weeks without pay.

Claimant, a long-time employee of the State, and other persons, objected to the plan and filed an oral and then a written grievance. In accordance with personnel rules, a hearing was held and it was the recommendation of the hearing panel that the Department of Personnel rules were not followed and that the grievants were to be made whole. However, the recommendation of the panel was overruled by Nolan B. Jones, Director of Personnel.

Claimant contends that by reason of the violation of certain rules, the day off work schedule was invalid and he should be awarded his lost four days pay amounting to $247.29, plus legal fees, and expenses.

Rule 3 — 300 of the rules of the Department of Personnel, as stated by the grievance panel stated as follows:

“Rule 3 — 300. Work Schedules: Each operating agency shall establish its regular work schedule and submit it to the department for approval. No work schedule of less than 37/2 hours per week shall be approved as a work week. Upon the approval by the director such schedule shall become the regular work week schedule for the employees affected by it.”

The above wording was stated in Claimant’s Exhibit 8.

It is, therefore, clear under the above-quoted language that there was no legal authority to force a work week of less than 37/2 hours as was enforced upon Claimant. Nolan B. Jones, Director of Personnel, in his decision overruling the panel, which is Claimant’s Exhibit 8, at least partially based his decision on his allegation that the sentence “No irregular work schedule required by special operating needs shall be effective unless approved by the Director,” was inadvertently left out of the published rules effective June 1,1975.

No evidence was presented to this Court, however, of any typographical or other error and it, therefore, is our opinion that the rule as quoted above, without the additional sentence, was in effect at the time of the order for a shortened work schedule and that therefore the shortened work schedule was not authorized and therefore was invalid. The agency did not follow that rule nor did the agency or the Department of Personnel follow the rules for layoffs contained in Rule 2 — 520 of the rules of the Department of Personnel.

It should be noted that Claimant’s Exhibit 7 are the rules of the Department of Personnel which show on its face that it is effective June 1, 1975.

This exhibit does not show the same wording in Rule 3 — 300 as does Claimant’s Exhibit 8 in which the grievance panel quotes Rule 3 — 300.

However, on the bottom of pages of Claimant’s Exhibit 7, there is a date “6-6-76” which indicates to this Court that the change in wording of Rule 3 — 300 was made on June 6,1976, and therefore was not effective on June 1, 1975. For that reason, the Court adopts the wording of Rule 3 — 300 as above quoted from Claimant’s Exhibit 8.

It is therefore our opinion that Claimant should be awarded his four days of lost pay amounting to $247.29.

Claimant is also requesting an allowance for attorneys fees. The record discloses that Claimant appeared pro se and therefore did not incur attorneys fees in this case. In addition to the fact that Claimant appeared pro se, there is no provision made in any statute or case law authorizing the recovery of fees and costs for preparation for hearings in this Court in this type of case.

Respondent bases its case upon the contention that the Court of Claims does not have jurisdiction in this type of case. We believe this contention has been disposed of by previous rulings of this Court, particularly the order of February 14, 1977.

Respondent further contends that Claimant has not exhausted all other remedies, citing the case of Good-friend v. Board of Appeals (1973), 18 111. App. 3d 412, 305 N.E.2d 404. It is perhaps true that Claimant could have gone to the Circuit Court of Cook County by a writ of certiorari but even if he had been successful, they would not have paid him the money he is claiming because only this Court has the authority to order payment of money by the State of Illinois. The Court of Claims is the only tribunal available to Claimant to collect his back pay.

Claimant is awarded the sum of $247.29.


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    (No. 76-CC-1172
    J. Tarkowski, Claimant, v. The State of Illinois, Respondent.

      Order filed July 27, 1979.

   Per Curiam.

This is a claim for property damage alleged to have been caused as a result of negligence of the State of Illinois on November 10,1974, as a result of a hole in the highway.

Subsequent to the filing of his claim, Claimant settled his case with the insurance company representing the State of Illinois and executed a consent to a dismissal of the claim and received the full amount of his claim.

He now requests this Court to award him attorney’s fees of $50.00 and costs of $10.00.

It is the Court’s opinion that Claimant, having voluntarily settled his claim, has released the State of Illinois and is not entitled thereafter to again make a claim based on the same original cause of action.

It is hereby ordered that this claim be, and the same is, denied.


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    (No. 76-CC-1193
    Earl J. Niemoth, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 18, 1979.

    Rudnick & Wolfe (Jay A. Canel and Allen M. Shapiro, of counsel), both for Claimant.
    William J. Scott, Attorney General (James O. Stola, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, Earl J. Niemoth, hereinafter referred to as Niemoth, filed a claim for money damages against the State of Illinois, hereinafter referred to as Respondent, alleging that Respondent, acting through the Illinois Department of Corrections, is guilty of breach of contract covering property owned by Wiemoth and located at 4616 North Malden in the City of Chicago, Illinois, which said property Respondent had agreed to lease from Niemoth and to occupy same under a pre-release program of male persons convicted under the Criminal Code of the State of Illinois. This matter was heard on September 9, 1977, through September 19, 1977, with a number of witnesses testifying for both Niemoth and Respondent and numerous exhibits admitted into evidence.

The testimony and exhibits received in evidence show that on May 23, 1975, Niemoth and Respondent entered into a lease for the rental of Niemoth’s premises, which said lease was to cover the period June 1, 1975, through June 30, 1977, at the monthly set rental in the amount of $3,822.39, none of which said rental payments were ever made by Respondent. The lease referred to and the rider attached thereto, both of which were executed by the respective parties on May 23, 1975, was prepared by Respondent after negotiations by officers and agents of Respondent with Niemoth. The léase provided, among other things, that certain improvements to the premises were to be made by Niemoth to make the premises suitable for Respondent’s intended use. Numerous conferences were held between Niemoth and representative of the Respondent and a number of inspections of the premises were made prior to the execution of the lease and rider. The testimony of the several witnesses together with various communications directed to Niemoth by agents of the Respondent indicated a difference of opinion as to the quality of the improvements being made. Respondent gave Niemoth notice of termination of the lease on October 27, 1975, which said notice was executed by Roland W. Burris, Director of the Department of General Services. Respondent did not at any time take occupancy of the premises involved. The record is replete with inconsistent testimony concerning the extent and quality of the improvements which Niemoth had agreed to under the terms of the lease.

The Claimant’s position is the Respondent terminated the lease because of community pressure and not because of non-compliance by Niemoth under the terms of the written document. Respondent’s witnesses testified that the alleged community pressure did not influence the decision to terminate the lease. There was testimony in fact that the dispute as to the quality and extent of renovations arose sometime before there was any showing of such community pressure. The Respondent’s position is that its acceptance of the premises was predicated upon Niemoth making specified improvements to the extent that it was safe and satisfactory to the Respondent, citing Ace Engineer Co. v. Pioneer Brewing Co. (1943), 319 Ill. App. 113, 48 N. E.2d 770, and that it’s implicit in any lease that the landlord warrant the habitability of the building. Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 230 N.E.2d 208.

Respondent also relies in its position that Niemoth did not substantially perform under the terms of the lease and rider. This is a question of fact and the Court must therefore rely on the evidence adduced at the time of the hearing.

Respondent further relies on the proposition that Niemoth failed to mitigate his damages if Respondent did not properly terminate the lease and cites to the Court, Ill. Rev. Stat. 1977, ch. 37, par. 439.24 — 6 and Schneider v. State of Illinois (1957), 22 Ill. Ct. Cl. 453.

Niemoth contends that he has complied with all of the terms, promises and covenants set forth in the lease agreement and that the improvements required to be made by him were substantially performed and that the premises were tendered to Respondent in a safe and satisfactory condition and asks, therefore, for judgment in his favor and against the Respondent in the sum of $93,559.75.

The parties to these proceedings and the Commissioner of this Court who conducted the hearing herein did, by agreement of parties, inspect the premises on October 5,1977. At the time of the inspection, which was approximately two years following the period of negotiations and improvements to said premises, it revealed that the property was in a poor state of repair and was at that time being used by various tenants on what appeared to be a day-to-day and month-to-month basis, and in the opinion of the Commissioner, was not a safe and satisfactory place as was contemplated by Respondent on May 23, 1975. The extent of deterioration to said premises between the middle of 1975 and the time of inspection is of course speculative and no evidence or testimony was introduced to show that the premises had suffered beyond ordinary wear and tear.

The issue before the Court is, therefore, whether Respondent had the right to terminate the lease agreement by notice given on October 27, 1975, by relying on its position that Niemoth had not performed as he was bound to do. It is this Court’s judgment, based on the testimony and exhibits introduced into evidence as well as Commissioner’s findings following inspection of the premises, that Niemoth had not performed under the terms of the lease agreement and that therefore Respondent did in fact have the right to terminate the lease agreement.

Although Respondent has suggested that Niemoth failed to mitigate his damages, which said position appears to be well supported from the record, this question need not be considered in view of the Court’s decision of Respondent’s right to terminate the lease.

In view of the Respondent’s delay in giving notice of termination, which it could have done at the time that it first determined that the improvements were not being properly made, to Niemoth, it is the opinion of the Court that the rental payments as provided under the lease did accrue and became due Niemoth for the period June 1, 1975, through October 27, 1975, being the date of notice of termination. The total rent due is $19,111.95. This figure is based on five months rent at $3,822.39 per month as agreed to in the terms of the lease. Since Respondent also agreed to pay for electricity and janitorial services in clause II of the lease, $302.65 and $967.65 respectively, will be included in Claimant’s award. These are pro-rated amounts based on figures stated in Claimant’s exhibit number fivé which lists Claimant’s expenses from May to December of 1975.

Accordingly, judgment in the amount of $20,381.55 is hereby entered in favor of Earl J. Niemoth.


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    (No. 76-CC-1493
    Michael J. Baubkus, Claimant, v. The State of Illinois, Respondent.

      Order filed October 29, 1979.

   Per Curiam.

This matter comes before the Court upon a motion of Claimant requesting that this Court find that Respondent, the State of Illinois, has waived any defense based upon the failure to file notice of claim or the failure to file a notice of claim within apt time.

Claimant has based his motion upon section 22 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.22). This section provides that in certain enumerated instances, the time of giving notice can be postponed. The disability of Claimant in this case is not specifically covered under the statute but it is Claimant’s contention that the statute is broad enough to cover the situation.

Claimant is a quadriplegic who hired an attorney and the attorney failed to give the requisite notice. The facts disclose that the failure to give notice was not caused by the Claimant’s disability but rather by the failure on the part of his attorney to file notice in apt time.

It is therefore the opinion of this Court that section 22 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.22) is not available as a defense for the failure to file notice at the stated time. The error was a human error and not due to the disability of Claimant.

It is hereby ordered that motion of Claimant be, and the same is, denied and this cause is dismissed for failure to file notice within the time required by statute.


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    (No. 76-CC-1612
    Data 100 Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed September 18, 1979.

   Per Curiam.

This cause coming to be heard on motion of the Claimant, Data 100 Corporation, due notice having been given, the Respondent objecting hereto and the Claimant having filed its reply and affidavit and the Court being fully advised:

Finds:

1. That on October 12,1972, the Claimant, Data 100 Corporation, entered into a certain rental agreement with Northeastern Illinois University for a Model 78 Terminal System for a period of five years.

2. That on the date of the execution of the said rental agreement, the parties thereto also entered into a certain addendum to rental agreement which provided, among other things, that if Northeastern Illinois University terminated the rental agreement during or after the 30th month of the lease, then Northeastern Illinois University would pay Data 100 Corporation the difference between the three-year lease rate and the five-year lease rate times the number of months the system had been on rental.

3. That on March 10,1975, Harold Mohamed, Executive Director of the Board of Governors Cooperative Computer Center, sent a letter to the Claimant requesting the cancellation of the said rental agreement.

4. That the Claimant, Data 100 Corporation, by its contracts administrator, Scott Forehand, agreed to honor such request for early termination.

5. That in connection with such requested termination, -and in accordance with the provisions of the rental agreement and addendum thereto, as aforesaid, the Claimant, Data 100 Corporation, forwarded certain invoices to ’-Northeastern Illinois University in the total sum of $4,536:50.

6. That on February 24, 1975, Mr.. Mohamed, in a letter to Dr. Robert Mandeville, Deputy Controller of the State of Illinois, admitted that the stated charges are “accurate.”

7. That the amount ¡sought by the Claimant represents the agreed upon charges for early termination of the rental agreement, pursuant to the addendum thereto, and is not a penalty nor is the contract between the parties void and/or unenforceable by virtue of 111. Rev. Stat.,ch. 27, par. 161.

It is hereby ordered that there is no genuine issue of material fact to be resolved and, therefore, the Claimant, Data 100 Corporation, be and is hereby granted summary judgment in its favor and awarded the sum of $4,536.50.


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    (No. 76-CC-1647
    Domingo Leonida, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 3, 1979.

    Robert Weiner, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant in this case filed a claim against the State of Illinois alleging that he was discharged from his employment at Lincoln State School by a proceeding initiated by the Department of Mental Health and Developmental Disabilities, State of Illinois. Claimant was discharged on October 27, 1974, and was subsequently reinstated on October 15, 1975, after the Civil Service Commission determined that the charges brought against him could not be proven.

Claimant claims that his salary loss from the State of Illinois was $11,182.32 and an additional amount of $935.00 which represents certain earnings from the Abraham Lincoln Medical Group which was not earned on State time, which brings the total, amount of damages to $12,117.32.

Claimant testified the $935.00 which was wrongfully deducted from the overall monies he was entitled to from the State of Illinois was actually money he earned on weekends and holidays from the Abraham Lincoln Medical Group which was not on State time.

Claimant did not apply for Unemployment Compensation because his former attorney advised against it as his experience with the Illinois Civil Service Hearing usually took three or four months or even less. The facts remained undisputed and the question of the amount of compensation to be awarded is the only issue of substance to be determined. The Claimant has met his burden of proof by a preponderance of the evidence.

Based upon this testimony, the ruling of the Illinois Civil Service which states “that the charges approved by the Director of the Department of Personnel have not been proven and that Claimant, Domingo Leonida, be retained in his position as Illinois Licensed Physician with the Department of Mental Health and Developmental Disabilities, State of Illinois”, and the multiple hardships put on the Claimant from the injustice of false charges we find that the Claimant is entitled to compensation in the amount of $12,117.32. The Claimant, Domingo Leonida, is awarded the sum of $12,117.32.


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    (No. 76-CC-1997
    Orville A. Antrim, Claimant, v. The State of Illinois, Respondent.

      Order filed February 1, 1979.

   Per Curiam.

This claim arises from an alleged breach of contract between Claimant, Orville A. Antrim, and the State of Illinois and the State Board of Education.

Claimant filed a claim in the amount of $75,000 for damages allegedly sustained as a result of said breach of contract.

In 1959, Claimant was issued a Provisional Elementary Certificate which was valid for an initial two-year period and six subsequent renewal periods, by which time he was to have met the requirements for a Standard Elementary Certificate. Claimant had until June of 1972 to qualify for said standard certificate. Before the certificate could be issued, he had to meet all academic requirements and statutory requirements, including a degree from a recognized institution and 16 semester hours of professional education and five hours of student teaching.

Claimant took courses at several institutions and received a bachelor’s degree in September of 1971. Through a clerical error, said degree was accepted by the State Board of Education before it was discovered that Ohio Christian College, from which Claimant received said degree, was not an accredited institution in accordance with Article 21 — 21 of The School Code of Illinois. When the error was discovered, Claimant was asked to surrender his newly acquired degree, which he did. He then had until June of 1972 to obtain a degree from a recognized school. Claimant did not succeed in securing said degree and his Provisional Certificate expired. By the start of the 1972-73 school year, Claimant still did not have a degree from a recognized institution and was subsequently ineligible for employment by the Community Unit School District in Champaign County where he had been previously employed.

In October of 1973, Claimant did obtain a Standard High School certificate from the State Board of Education after receiving a bachelor’s degree from Eastern Illinois University, an accredited teacher education institution. By this time, however, his previous position had already been filled, and Claimant was without a job.

The evidence discloses that approximately six weeks elapsed from the time he secured his degree from Eastern Illinois University until he secured his certificate from the State of Illinois.

Claimant bases his claim on the theory he had a contract with the State of Illinois and that said contract was breached by the action of the State. The evidence in the record does not sustain this theory that such a contract existed but rather on the completion of certain educational requirements as set forth by Ill. Rev. Stat., ch. 122, par. 21 — 21, he would be entitled to a certificate. Claimant, unfortunately, failed to pursue the correct avenue in attempting to obtain his teaching certificate and consequently failed to meet the standards as set forth by the statute.

Claimant having failed to meet the statutory requirements of the State of Illinois, this claim is hereby denied.


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    (No. 76-CC-2292
    Theotis Keith Carr, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 30, 1979.

    Thomas W. Sherard, for Claimant.
    William J. Scott, Attorney General (Glen P. Earner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The Claimant, Theotis Keith Carr, seeks recovery for personal injuries he sustained as a result of being attacked by his foster father, a foster parent licensee of the Department of Children and Family Services (“DCFS”).

Claimant’s theory of recovery is that DCFS breached its duty as his guardian to provide him with an adequately safe and healthy environment. Part of this duty includes the placement of wards in suitable foster homes under the care of competent foster parents. Another aspect of this duty is the obligation to make a reasonable effort to determine whether a foster parent is capable and willing to properly care for a ward. Both the Claimant and the Respondent have agreed that DCFS breached the above duty, that the breach was the proximate cause of Claimant’s injuries, and that Claimant is entitled to an award of $90,000.00. This agreement is reflected in a joint stipulation signed by both parties and submitted to the Court.

The Court has reviewed the facts set forth in the joint stipulation and considered the legal conclusions agreed upon therein. It appears that the stipulation is thorough, accurate and that it has been entered into legitimately. It also appears to the Court that the agreed upon facts are legally sufficient to sustain Claimant’s cause of action and that the granting of an award would be fair and consistent with the findings.

While the Court is necessarily limited in its findings of fact to the facts presented to it by the parties, it is not bound by a stipulation between the parties as to the amount of the award to be granted, just as it is not bound by such a stipulation in its findings of law.

It is the opinion of the Court, however, that based upon the undisputed facts before it, the Respondent is liable to the Claimant. The Court is also of the opinion that an award of $90,000.00 is fair, reasonable, and appropriate in light of the severity of Claimant’s injuries.

It is hereby ordered that the sum of $90,000.00 be and is hereby awarded to the Claimant, Theotis Keith Carr, in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


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    (No. 76-CC-2336
    City of Carbondale, Claimant, v. The State of Illinois, Respondent.

      Order filed November 29, 1979.

   Holderman, J.

Claimant filed a claim against the State of Illinois in the amount of $18,138.04, representing the amount of money expended by the city of Carbondale as a result of a grant to the State by the Federal Government under EEA Title V, which money was to be administered by Respondent.

The city asserts that it entered into a contract with the State of Illinois Department of Personnel providing for the employment by the city of Carbondale of certain persons who had been unemployed for a specified period of time. The State, according to Claimant, agreed to pay certain sums for the salaries of those persons employed by the city meeting the eligibility requirements under the EEA program. Claimant alleges that pursuant to the agreement, Claimant hired employees, paid them, and requested reimbursement from the State of Illinois for wages and fringe benefits paid to said employees pursuant to the program and the agreement between Claimant and the State of Illinois. Some reimbursement was made by the State of Illinois but, due to accounting errors alleged to be the responsibility of the State of Illinois, the Federal money was “over exp ended” and a deficiency resulted, causing a loss to the city of Carbondale in the amount of $18,138.04.

Claimant alleges that there was an oral agreement entered into between the city of Carbondale and Respondent regarding the hiring of the employees and payment of the same.

The director of the Public Employment Program left his position, but prior thereto he had prepared a phaseout schedule for all the local governments as to the amount of money that was still left in the Federal fund and how much each local government was to receive.

Claimant takes the position that this is in the nature of a simple lapsed appropriation case. Respondent disputes this and argues that the reasons why the Federal money was exhausted prior to payment of the city of Carbondale claim is immaterial. Respondent further takes the position that until such time as there is a State appropriation of money supplementing the exhausted Federal funds,' there can be no relief.

It is well to note in the beginning that at no time was there any money appropriated by the legislature of the State of Illinois from which this claim could have been paid. It can very well be argued that since there was no appropriation made by the State, there certainly cannot be a lapsed appropriation.

Respondent takes the position that the State was merely a caretaker on behalf of the Federal Government and there was never any liability on the part of the State because no appropriation was made by the legislature appropriating money for this particular purpose.

Respondent alludes to the case of The Board of School Inspectors of the City of Peoria, a Corporation, v. State of Illinois (1941), 12 Ill. Ct. Cl. 17 in support of respondent’s position. In the Peoria case, the school district vouchered the costs of certain educational programs for crippled children against a State Act which provided $100,000.00 to various school districts claiming such costs for the year in question. The voucher was approved but only 20 percent of the claim could be paid because the costs of the program were greater than the legislature had anticipated and the claims had to be pro-rated.

The Court cited Fergus v. Brady, 227 Ill. 272, 278, where the Illinois Supreme Court had pointed out that the Illinois Constitution prohibited appropriations in excess of the revenue authorized by the legislature for the period for which appropriations were made. It was also pointed out that the general assembly is prohibited from permitting any agreement or contract made without express authority of law and that all such agreements or contracts are null and void. The Court, in the Peoria case, concluded that since the education of crippled children was not a mandatory duty imposed on the various school districts and was elective on the part of the school districts and because of the Constitutional provisions, all school districts were limited in the aggregate to the sum of $100,000.00 from State funds. The Court in the Peoria case concluded that although the claim of the Peoria School District may be equitable, the appropriations were limited to $100,000.00, and the appropriations were exhausted.

Respondent also takes the position that it is the law of the State of Illinois that whoever deals with a municipality does so at his peril and must take cognizance of the limitation of the municipality or its agents powers. 22 Ill. Ct. Cl. 592. This case also held that the Court of Claims cannot disregard the Constitution and laws of the State of Illinois nor restrict or extend the power of the legislature to pay claims against the State.

It is unfortunate in the present case that Claimant in good faith relied upon the Respondent, without first checking to see whether Respondent or its agent had the power or authority to enter into said alleged oral contract.

In the Peoria case, this Court refused to allow itself to be used as an alternate to the legislative process of deficiency appropriating. The argument in the case now before the Court is even stronger inasmuch as the Court in the Peoria case was dealing with an appropriation of State funds whereas in the present case the money involved was Federal and the State of Illinois was merely administering the disbursement of the funds.

Claimant contends that it had a right to summary judgment for failure of the State of Illinois to respond to subpoenas, produce documents, and in general to comply with the requirements of the Civil Practice Act regarding the right of Claimant to discovery. It does appear from the record that Respondent was substantially neglectful of its responsibilities to comply with discovery orders of this Court and neglectful in its advice to certain witnesses that they did not need to appear pursuant to subpoenas lawfully issued out at the request of Claimant for various State employees in connection with this claim. The State is reminded by this Court that it has the duty to comply with the provisions of the Civil Practice Act and the orders of this Court regarding discovery practice the same as any other practicing attorney and it strongly suggests that in the future the rules of the Civil Practice Act, together with the rules of this Court, be observed and followed.

Claimant’s motion to reconsider the order heretofore entered is denied and this cause is dismissed.


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    (No. 76-CC-2385
    Doretha Ingram, Administrator of the Estate of Allen Ingram, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 19, 1979.

    Goodman, Krasner & Kipnis, for Claimant.
    William J. Scott, Attorney General (John R. Fan-one, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant is the widow of Allen Ingram who committed suicide while a patient at the Illinois State Psychiatric Institute.

The deceased first came to the attention of the State of Illinois on September 9, 1975, when he came to the Illinois State Psychiatric Institute with his mother. At that time, he was evaluated by Gertrude Lloyd, A.C.S.W., who recommended to the patient that he voluntarily enter the hospital. He steadfastly refused and left the premises. Her evaluation is as follows:

“Mental Status: Patient is casually dressed and looks stated age. He is oriented as to place and person but there was some confusion as to dates which he corrected immediately. He was anxious and circumstantial in his productions and guarded. This was directly related to his firm effort to regain control without help from anyone.”

The decedent again came to the facility on September 28, 1975 and was seen by a Dr. Harshad M. Mehta who described the patient as having been drinking. He further stated “The patient did not appear to exhibit suicidal or homicidal tendencies.” He was not admitted.

The patient came one last time to the facility on September 29,1975, and was admitted at about 8:40 p.m. He was accompanied by a friend, Juanita.

Upon admission, he was evaluated by Dr. Marshall Garrick. His admission note reads as follows:

“Mental Status: Oriented x 3." (Meaning: to time, place and persons) “Mood — sad. Denies suicidal intention. Thought processes and content, delusions, in building spying — someone trying to kill.” (Note: the doctor is reporting that the patient said these things to him.) “Denies hallucinations; no looseness of associations. Coherent. Insight: feels needs rest.”
Provisional Diagnosis: “Paranoid state and depression.”
Prognosis: “Good. First Hospitalization.”
Treatment Plan: “Admit to 5 East.”

Claimant was 26 years of age, married, and the father of two children. He had been separated from his wife for approximately three months at the time of his death and, according to her story, she was afraid of him.

The hospital records indicate that he talked freely about his fears, played ping-pong and drew pictures. The first and only morning he was in the hospital, he arose and took care of his personal hygiene and was concerned about an injury to his hand which had occurred before admission. He participated in a room change and watched television.

At about 11:00 a.m., he left the day room to go to his room and was found about 15 minutes later in his room, slumped to the ground with a belt around his neck and fastened to the door knob. He was pronounced dead at 12:15 p.m. In the interim between the time the patient was found and his being pronounced dead, he was given treatment to try to resuscitate him.

Ronald A. Moline, M.D., gave an opinion to rebut the testimony of Claimant’s doctor which took into account all three meetings with the decedent, the entire hospital record, the history and hospital course. The gist of this opinion was to the effect that in none of the interviews was any information gleaned about this patient showing that he had ever attempted to harm himself in the past or that he had ideas of doing so in the present. The most prevalent thought content, which was cited by every interviewer, revolved around the fear of being harmed rather than any wish to harm himself. In only one place in the record is there any information presented which indicated that the deceased might harm himself and that was in one of the letters in an exhibit which stated that he tried to escape through a bathroom window. It is not clear, however, whether his attempt to go out the window was an attempt to elude his illusionary pursuers or whether he intended to do harm to himself.

The Court must conclude from the evidence offered that Respondent did not have any reason to believe that the deceased had any self-destructive thoughts.

In 22 Ill. Ct. Cl. 513, this Court held that Respondent owed patient “the duty of protection, and was bound to use such reasonable care as her known condition required” and in the same case held that the State “is not an insurer of safety.”

Claimant takes the position that the State did not give the patient the care that was required, particularly in allowing the patient to retain his belt. See 30 Ill. Ct. Cl. 373. This case lays down the rule that the State is not an insurer of mental health patients.

Dr. Moline, in his testimony in addressing the question of “suicidal precautions,” and the issue of taking decedent’s clothing and belongings, made the following statements:

“Should all psychotic patients, or those diagnosed as schizophrenic, or as having affective disorder, be placed on suicidal precautions? Almost all psychiatric hospitals operate on the premise that they should not — that suicidal precautions should be reserved for those patients, regardless of diagnosis, who give evidence of suicidal inclination or propensities. Why is this? . . . The answer is two-fold:
Experience has demonstrated that individuals intent on suicide are often precisely those that give no warning of their intention. Given some clue, it is not an insuperable task for a hospital unit to provide relatively effective suicide precautions for a limited time period, including deprivation of privacy (sleeping in front of the nursing station, having an aide accompany the patient to the bathroom and be present at all times), removal of shoelaces, glasses, belts, and silverware at mealtime — although even then some individuals have proven ingenious at successfully accomplishing their aim. It is less feasible for a hospital unit to provide such effective protection and observation for many people at the same time — and almost impossible to continue, in terms of the vigilance and intensity required, day-in and day-out, as a routine policy of ward functioning.
The second consideration is more subtle, but of no less importance. Citizens who find themselves in a psychiatric hospital — by choice or involuntarily— are subject to two powerful forces which work against the restoration of mental health: demoralization, and regression. Hopefully, the good things the psychiatric hospital has to offer will offset these forces, but every aspect of hospital life which says to the patient: You are unfit to live like ordinary human beings; unfit to wear the eyeglasses you need for reading, or to hold your pants up other than with your two hands, or to be expected to take responsibility for yourself and your fellow-man — every such rule, or implication, contributes to that patient’s deterioration rather than recovery.
It is my conclusion that, in the case of Mr. Allen Ingram, there was no evidence elicited of suicidal history or intentions, and that he was accordingly treated with concern but also with respect for his dignity and his rights. I believe that he was given a proper and usual psychiatric evaluation, and that he was placed on a unit with more than usual expertise in evaluating and treating patients with serious depression.”

Claimant attempted to introduce into evidence certain textbooks. The Commissioner stated he was going to enter them into evidence without giving any judicial notice or any credence to how much authority these matters had. It is the Court’s opinion that the introduction of the textbooks as such is in error and the only possible use of textbooks in proceedings of this kind is for use in ^ross-examination.

This Court has previously held that where Claimant fails to prove by a preponderance of the evidence that Respondent did not exercise the degree of care owed to its patient, the claim will be denied. See 25 Ill. Ct. Cl. 296.

It is the opinion of this Court that the treatment accorded to the decedent was the ordinary treatment given to patients in similar conditions and the State was not negligent in the care of the deceased.

Award denied.


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    (No. 76-CC-2474
    Mel Menchaca, Claimant, v. The State of Illinois, Respondent.

      Order filed November 7, 1979.

   Per Curiam.

This cause coming to be heard on the motion of the Respondent, the State of Illinois, for summary judgment, due notice being given to the parties and the Claimant not filing any counter-affidavit or answer thereto and the Court being fully advised:

Finds that the unrefuted evidence in support of the motion does not sustain the Claimant’s allegation in the amended complaint that the area in question was hazardous, dangerous or defective. The Court finds that the Respondent was under no duty to patrol, guard or fence in natural water courses. See, Zorn v. Bellrose (1959), 22 Illinois App. 2d 331, 160 N.E.2d 685; Mindeman v. Sanitary District of Chicago (1925), 317 Ill. 529,148 N.E. 304; Adams v. Brookwood Country Club (1958), 16 Ill. App. 2d 363, 148 N.E.2d 39. There are no material facts in dispute and therefore Respondent is entitled to judgment.

It is hereby ordered that the Respondent’s motion for summary judgment be and is hereby granted.


text:
    (No. 76-CC-2478
    Virginia Swartz, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 10, 1980.

   Per Curiam.

This case comes before the Court on a joint stipulation of the parties. That stipulation reads in its entirety, as follows:

“1. This is a claim for a retroactive salary adjustment pursuant to a reallocation originally denied by the director of personnel but reversed by the Civil Service Commission. This stipulation is entered into pursuant to the provisions of the Department of Personnel Rule 1 — 30.
2. Prior to June 1,1975, Rule 1 — 30 provided as follows:
‘Reconsideration: In the event a request for reconsideration is made by an employee within 90 days after the employee’s receipt of notice of the director’s decision as to the allocation of his position:
a. The director shall investigate the duties and responsibilities of sufch position and if necessary related positions to determine the allocation. The employee shall be given a reasonable opportuni- ' ty to be heard.
b. Notice of the decision of the director shall be served on the employee in person or by registered mail.
c. If the employee does not accept the director’s decision he may appeal to the Civil Service Commission, in writing, within 15 days after receipt of notice of the decision. (As revised by amendment approved by the Civil Service Commission December 16,1966.)’
3. Effective June 1, 1975, Rule 1 — 30 provided as follows:
‘Reconsideration: Within 30 days after receiving notice of such decision the incumbent in such position may make a request in writing of the director for a reconsideration of the decision. Thereafter, the director shall reinvestigate the duties and responsibilities of such position and related positions, if necessary, and the affected employee shall be given a reasonable opportunity to be heard.
4. The director of personnel pursuant to the personnel code is given the duty and the power" to promulgate a set of personnel rules which when properly filed with the Secretary of State have the force and effect of law.
5. Rule 1 — 30 is a rule so promulgated as above stated.
6. Rule 1 — 30 having the force and effect of law must be followed by the director of personnel and this Court until amended or rescinded pursuant to the statute.
7. The departmental report of the director of personnel dated February 22, 1980 and attached hereto as Exhibit A sets forth a chronology of events in the case currently before this Court which states as follows:
‘January 17, 1975 The date of Virginia Swartz’s letter which requested reconsideration of the public aid case worker position and received by the Director of Personnel on January 17, 1975.’
8. Although Ms. Swartz was paid by the agency at the direction of the Department of Personnel only back to September 1, 1975, a strict adherence to the provisions set forth in Rule 1 — 30 mandate that Virginia Swartz is entitled to retroactive salary adjustment back to January 17, 1975 (the date of the receipt of the request for reconsideration by the director of personnel).
9. The parties agree that pursuant to the provisions of Rule 1 — 30 and the calculations of the Department of Personnel. The Claimant is entitled to a retroactive salary adjustment in the amount of $467.30 to be subject to additions for employer contributions for FICA and/or retirement and likewise subject to deductions and withholdings for employee contributions to FICA and/or employee retirement as well as state and Federal income taxation.”

This Court having carefully reviewed the file agrees with the position set forth in the stipulation and finds that Rule 1 — 30 having force and effect of law must be given effect by this Court and although the director of personnel previously directed that Claimant be paid back to September 1, 1975, it is the finding of this Court that, pursuant to the provisions of Rule 1 — 30, this Claimant is entitled to the retroactive salary adjustment back to January 30, 1975, the date on which the Claimant’s request for reconsideration was received by the director of personnel.

It is, therefore, ordered that this Claimant be granted an award in the amount of $467.30 subject to additional benefits for employer contributions and withholdings for employee contributions to FICA and/or retirement as well as Federal and State income tax.


text:
    (No. 76-CC-2496
    Elan One Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 17, 1980.

    Gottlieb and Schwartz (Jack B. Schmetterer and David Surcar, of counsel), for Claimant.
    William J. Scott, Attorney General (Richard J. Grossman and Clan P. Earner, Assistant Attorneys General, of counsel), for Respondent.
   Per Curiam.

This cause coming on to be heard on the joint stipulation of the parties by and through their respective counsel and the Court being fully advised in the premises:

The Court finds that Claimant actually provided the services as alleged in its complaint and that the parties initial dispute was of law and not fact. The Court further finds that the parties choose not to jeopardize their respective interests and have agreed to settle the claim for the sum of $3,000.00.

It is hereby ordered that the Claimant Elan One Corporation be and is awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of $3,000.00.