text:
    (No. 76-CC-1119
    Griffin W. Howard, Claimant, v. The State of Illinois and The Department of Corrections, Respondents.

      Opinion filed June 30, 1980.

    Rehearing denied January 22, 1981.

    Jerry Bonifield, of Norton & Bonifield & Associates, for Claimant.

      William J. Scott, Attorney General (Owen Lierman and William E. Webber, Assistant Attorneys General, of counsel), for Respondents.
   Poch, J.

Claimant, Griffin W. Howard, seeks to recover from the State of Illinois the sum of $100,000.00 for personal injuries allegedly sustained as a result of Respondent’s negligence, whereby Claimant was permanently injured.

At the time of the accident on March 21, 1975, Claimant was an inmate of the Vienna Correctional Institution at Vienna, Illinois. His work at the institution was primarily farm maintenance work, but on the day of the accident, Claimant was painting the roof of a building known as the “farm office”.

While Claimant was painting the roof, he slipped on some wet paint and fell to the ground sustaining a broken leg.

After taking into consideration all the evidence and reviewing the transcript of the proceeding, it is the opinion of this Court that the roof upon which the Claimant was standing at the time he was painting was a device covered by the “Scaffold Act” of the State of Illinois. Ill. Rev. Stat. 1979, ch. 48, pars. 60 to 69; Louis v. Barenfanger, 39 Ill. 2d 445, 236 N.E.2d 724; St. John v. R.R. Donnelly & Sons Co., Inc., 54 Ill. 2d 271, 296 N.E.2d 740.

The roof was not a safe support for the body of the Claimant while applying paint thereto and did not adequately protect the safety of the Claimant in the maintenance work.

The Respondent, through its agents, was in control of and in charge of the work and violated the Structural Work Act by failing to provide reasonable supports for the Claimant in and about endeavoring to maintain the roof by the application of a coat of paint. The violation of the Structural Work Act by Respondent was a proximate cause of Claimant’s injury.

After the injury, Claimant used crutches for about one year and walked with one crutch for an additional six to eight months and underwent substantial pain.

Due to the fact that the injury to the left leg is a permanent injury, the Court finds that Claimant is entitled to an award of $25,000.00.

An award is, therefore, entered in favor of Claimant, Griffin W. Howard, in the sum of Twenty-Five Thousand and 00/100 ($25,000.00) Dollars.


source: Caselaw Access Project

author: Poch, J.

license: Public Domain

text:
    (No. 76-CC-1125
    Imogene Linebaugh, Administrator of the Estate of Larry Joe Jackson, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 11, 1981.

    Clifton Thurston, of Thurston & Associates, for Claimant.
    Tyrone C. Fahner, Attorney General (Owen Lierman, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a cause of action brought by Claimant Imogene Linebaugh as administratrix of the estate of Larry Joe Jackson, deceased, against Respondent, the State of Illinois, for the death of Claimant’s intestate, which occurred on January 19, 1974.

Claimant alleges that at approximately 3:30 a.m. on January 19, 1974, Claimant’s intestate was a passenger in the back seat of a vehicle being operated along an access road to Fort Defiance State Park in Alexander County, Illinois. The access road lies to the east of U.S. Highways 6 and 62, and is approximately 160 yards south of Illinois State Police Headquarters Sub-post 13-A.

At the time of Claimant’s death, the Mississippi River, which lies near the scene of this accident, was flooded to a depth of approximately 10 feet above the level of the access road at the bottom of a small hill. It is alleged that the vehicle in which the Claimant was a passenger went into the flood waters of the Mississippi and Claimant’s intestate was drowned.

Claimant alleges that Respondent was negligent in failing to warn the drivers of motor vehicles that flood waters crossed the access road and that Respondent negligently failed to place barricades, flare signs or other warnings on the road. Janet McMillen, a passenger in the vehicle at the time of the death of Claimant’s intestate, testified that at the time one turns on the Fort Defiance State Park Road, the access road is level for 300 to 500 feet. As the car turned into the access road, the witness turned to look over the front seat of the car into the back seat and when she looked back, water was splashing on the windshield. The witness, Janet McMillen, stated that there was no barricade on the Fort Defiance access road. The witness described the scene of the accident as being a sudden dropoff on the asphalt access road. The car floated into the river and the witness was able to get out through the passenger side window.

A State Trooper called by the Claimant, Bill Story, testified that he was working the 6:00 a.m. to 2:00 p.m. shift on January 19, 1974, out of the sub-station 13-A location near the scene of the accident. The officer described the lay of land at Fort Defiance as being very low-lying land so that where the sub-station is located as well as certain bridge approaches, the land has been filled to a height of 50 to 60 feet above the natural terrain. As one drives in the entrance to Fort Defiance State Park there is an immediate drop in the access roadway.

Officer Story said that the question of whether there was a barricade on the road was discussed at the scene of the accident. The front of the automobile was examined and no evidence of damage from contact with the barricade was found. Barricades in the area were leaning against the guard rail, facing the entrance to the park. Officer Story said there had been barricades on the road, but people kept removing the barricades and somebody would have to put them back up. People had formed a habit of using the road as a boat ramp during the flood and they were removing barricades from time to time. Officer Story said that no effort was made to secure the barricades by nailing or chaining to keep them from being removed. No signs were placed advising persons not to remove the barricades. Officer Story identified the dropoff on the access road as being similar to coming off of a levy or a steep railroad crossing.

Officer Story indicated that he himself had had to replace the barricade across the Fort Defiance access road after it was removed. Other officers had replaced the barricades. Also, Officer Story testified that the area of the access road in this accident was well lit in the night time by vapor lights from sub-station 13-A, but that the lower side of the embankment is dark.

William Collins, the site manager at the Fort Defiance State Park, was called as a witness for the Claimant. Collins has been site manager for 17M years. Collins testified that it was his normal procedure to barricade the entrance to the park when there is a flood. Collins erected a barricade four feet long and one foot wide, bearing the notation “Road Closed”, approximately five days before the accident in question. The lettering on the sign was 3 to 4 inches high. Collins testified that the barricade was placed on the left half of the highway, leaving the right portion of the highway open because people were using the access road as a boat ramp during flood times. Collins testified that he had seen situations when the barricade had been removed and that he would check the barricade every two or three days. Collins said he had no one else check on it.

Claimant testified that she was the mother of decedent Larry Joe Jackson, as well as the administratrix of his estate. She testified that the decedent was 25 years old when he died.

Mrs. Linebaugh testified that Larry was the man of the house and that after graduating from high school he worked at the IGA store full-time. Prior to his death, he had become a meat cutter. The decedent was employed at the IGA store at the time of his death and had worked the same night of his death.

The law in the State of Illinois is abundantly clear. In order for a Claimant in a tort action to recover against the State, he must prove that the State was negligent and that such negligence was the proximate cause of the injury; further, Claimant must show that Claimant used the exercise of due care. (McNary v. State of Illinois, 22 Ill. Ct. Cl. 328; Link v. State of Illinois, 24 Ill. Ct. Cl. 69.) This court has held many times that the State is not an insurer of all persons traveling upon its highways. McNary v. State of Illinois, 22 Ill. Ct. Cl. 328; Link v. State of Illinois, 24 Ill. Ct. Cl. 69.

It is clear in the case at bar that there was no evidence of contributory negligence on the part of the decedent or decedent’s heirs. It is also clear that Respondent was guilty of negligence in failing to adequately protect persons in automobiles from utilizing the Fort Defiance access road during floods. The evidence is clear that an extremely dangerous condition existed which was known both to the site manager of the Fort Defiance Park as well as to State Police officers. A preponderance of the evidence in this case establishes that a person or persons unknown had removed the small barricade from the access road and it had not been replaced prior to the time that the vehicle in which the decedent was a passenger came upon the scene of the accident.

The decedent was employed full-time and contributed substantially to a household occupied by his mother.

It is our opinion, based upon the facts in this case, that an award should be entered in the amount of $25,000.00 and an award is hereby entered in that amount in favor of Claimant.


text:
    (No. 76-CC-1171
    Venessa Bennett and Barbara Bean, Claimants, v. The State of Illinois, Respondent.

      Order filed December 11, 1980.

    Chase and Werner, for Claimants.
    Pretzel, Stouffer, Nolan and Rooney (Joseph B. Lederleitner, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court upon motion of Respondent to strike the pleadings of Claimants and Claimants’ objection to said motion.

The record discloses that the motion to strike filed by Respondent on November 18, 1980, is the third motion filed by Respondent. An order dated April 2, 1980, denied Respondent’s original motion to strike and granted Claimants 30 days to appear for their discovery depositions. Claimants failed to appear for their discovery depositions within the 30 days of that date. On September 24,1980, a second motion to strike was filed. On October 20, 1980, attorneys for Claimants filed an answer to said motion to strike, indicating that they would appear for their discovery on October 31, 1980. Claimants failed to appear. Likewise, another motion was filed indicating that Claimants would appear on November 17, 1980. Claimants did not appear.

It is the opinion of this Court that the unnecessary and long delay and the failure to abide by rules of practice of the Court of Claims are such that the Court has no alternative but to grant Respondent’s motion to strike the pleadings of Claimants.

Respondent’s motion to strike is hereby granted and this cause is dismissed.


author: Per Curiam.

text:
    (No. 76-CC-1405
    Joseph J. Duffy Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 2, 1981.

    Schiff, Hardin & Waite (Barry S. Alberts, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The instant claim involves an alleged breach of contract between Respondent’s agent, the Capital Development Board (CDB) and Joseph J. Duffy Co. (Claimant). Briefly stated, the claim arises out of the CDB’s acceptance of Claimant’s bid to perform a portion of the construction of a new high school in Chicago, Illinois, and the CDB’s subsequent failure and refusal to perform its obligations under the contract between the parties. Claimant seeks damages in the amount of $312,244.00 based upon the verified bill of particulars that was filed herein by Claimant.

This cause comes before this Court on the basis of a joint stipulation submitted by the parties hereto wherein the CDB admits all of the allegations of the complaint as filed with respect to the issue of liability. In this regard, the CDB admits, among other things: that Claimant’s bid complied with all of the bidding requirements and documents issued by the CDB, including a minority participation requirement; that, of the five bids received by the CDB at the public opening of bids on October 30, 1975, Claimant’s bid for the construction project in the amount of $1,544,863 was the lowest bid that complied with all of the bidding requirements and documents and that, as such, Claimant’s bid was the lowest responsible bid for the construction project; that the amount of Claimant’s bid was $184,137 below the CDB’s budget for the project; that the CDB accepted Claimant’s bid; that such acceptance created a binding, enforceable contract between the parties; and that, notwithstanding that Claimant at all relevant times was ready, willing and able to perform, the CDB, without lawful justification, failed and refused to perform its obligations under the contract with Claimant. Because Claimant’s bid was the lowest bid that complied with all of the CDB’s bidding requirements and documents, including the material minority participation requirement, Claimant’s bid was the “lowest responsible” bid for the construction project within the meaning of the provisions of the Illinois Purchasing Act. (Ill. Rev. Stat. 1975, ch. 127, par. 132.1 et seq. Cf. S. N. Nielson Co. v. Public Building Com. (1980), 81 Ill. 2d 290.) And, the CDB’s acceptance of Claimant’s bid created a binding, enforceable contract between the parties. (Park Commissioners v. Carmady (1908), 139 Ill. App. 635; People ex rel. Department of Public Works and Buildings v. Southeast National Bank of Chicago (1971), 131 Ill. App. 2d 238.) Accordingly, the CDB’s admissions satisfy the legal requirements concerning recovery in a cause of action based on contract, to-wit, existence of a contract and breach thereof.

Having before it the requisite elements of liability, the only thing remaining for this Court to do is to assess damages. In the joint stipulation, the parties have recommended to the Court that an award be entered in the amount of one hundred thousand dollars ($100,000).

It must first be noted that this Court is not bound by any stipulation of the parties regarding the element of damages. It is the function of this Court to adjudicate controversies between the State of Illinois and Claimants. In so doing, this Court has the responsibility of considering all of the elements of the case and arriving at a fair and reasonable amount of damages in light of the facts of the case.

However, this Court will not reject a recommendation of the parties where that recommendation appears to be reasonable, has been entered into without duress on the part of either party and has been made with full knowledge and authorization by the parties. In light of the fact that both parties have conducted full discovery herein, that the recommendation is jointly made with the full knowledge and proper authorization of each party, and given the problems of proof inherent in the trial of a matter of the nature herein and in the interests of judicial economy, this Court hereby accepts the recommendation of the parties regarding an award in this case.

It is hereby ordered that the Court’s order of September 7, 1978, is vacated and an award be entered in favor of the Claimant, Joseph J. Duffy Co., in the amount of one hundred thousand dollars ($100,000.00) in full and complete satisfaction of any and all matters which are the subject of the complaint filed herein.


author: Roe, C. J.

text:
    (No. 76-CC-1870
    Robert G. Kaysen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 17, 1980.

    Frederick J. Steffen, for Claimant.
    William J. Scott, Attorney General (Kevin J. Caplis, Special Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

The Claimant, Robert G. Kaysen, brought this action to recover for damages he sustained by reason of personal injuries which he alleged were caused by the negligence of the State in failing to maintain a State highway. A bifurcated hearing was held before a commissioner at which much testimony and numerous exhibits were offered by both parties. Following the hearing this case was argued orally before the full Court.

The incident complained of occurred near midnight on July 22, 1975, while Claimant was driving his automobile easterly on Route 72, approximately two miles west of Route 31, west of Dundee, Illinois. Route 72 is a two-lane highway with asphalt surface. Weather conditions were clear at the time of the accident.

Claimant testified that he was traveling approximately 50 miles per hour and that as he approached a curve he hit a number of potholes in the road, that his tires grabbed and his automobile skidded sideways, thereby causing him to lose control of the vehicle and crash into a telephone pole. Other witnesses, on behalf of the Claimant, testified to certain imperfections in the road. Photographs were also introduced into evidence which Claimant’s witnesses testified represented the scene of said potholes.

James Montalbano, a police officer for the Village of Sleepy Hollow, testifying for the Respondent, stated that he witnessed a part of the accident and in fact saw Claimant’s vehicle traveling at a rate of speed which he estimated to have been between 60 and 70 miles per hour. David R. Barrows, a deputy sheriff with the Kane County Sheriff’s Police also testified on behalf of the State. Each of these two witnesses stated that he made an investigation of the scene of the accident the same night and also the next morning during daylight hours and did not observe the hole or holes in the pavement which was testified to by the Claimant and his witnesses. The exhibits introduced into evidence at the hearing support their testimony. A careful examination of the photographs does not reveal any such pothole or defect which could relate to the erratic movement of the vehicle prior to leaving the highway and striking the telephone pole.

Officer Barrows testified that during both of his investigations he walked the entire distance from the point of impact of Claimant’s automobile with the telephone back to the area where Claimant alleged the pothole existed, and that neither immediately following the accident nor the next morning did he see any potholes or other patched surfaces which he, in his opinion, felt would constitute a hazard to a vehicle traveling on the highway. He further stated that he walked back to approximately 200 to 300 feet west of where the tire marks began and saw no evidence of any particular imperfections. He did testify that he noted a patch in the pavement similar to the patch identified by Claimant in Exhibit No. 4 as the area of the pothole. However, he further noted that the patch was not fresh. Joseph Koster, a District Safety and Claims Manager with the Department of Transportation, testified that the patch shown in Exhibit No. 4 was located approximately 1200 feet west of the beginning of the curve and that said patch was present at the time of the accident, basing his testimony on Department of Transportation records which showed that no repairs to the area in question had been made within either one week prior to or one week following the occurrence.

After careful scrutiny of the entire record now before us we conclude that the photographs allegedly portraying potholes and patches which were submitted into evidence by the Claimant do not relate to or support Claimant’s own testimony as to the cause of losing control of the vehicle.

The Court has consistently held that the State is chargeable with a duty to maintain its roads in a reasonably safe condition for the purpose for which they are intended. It follows, therefore, and we have so held, that in order for Claimant to prevail in a case of this nature he must prove by a preponderance of the evidence that the ' Respondent breached its duty and that said breach proximately cause the injuries complained of. We find that Claimant has failed to so prove both the breach of duty and causation.

Claimant also has the burden of proving freedom from contributory negligence. Based upon the testimony adduced at the hearing, including witness Montalbano who was an occurrence witness, we are of the opinion that the Claimant did, in the operation of his vehicle, contribute to the accident. Other than the testimony of the Claimant himself who stated he was traveling between 50 and 55 miles per hour as he approached the curve and at the time he lost control of his automobile, nothing in the record supports that he was in the exercise of due care and caution for his own safety and the safety of others. In fact, the evidence supports that he was not in the exercise of due care.

Based on the foregoing, it is hereby ordered that this claim be and hereby is denied.


text:
    (No. 76-CC-2606
    Lewis University, Claimant, v. The State of Illinois, Respondent.

      Order filed March 16, 1981.

    Dunn, Stefanich, Mcgarry and Kennedy, Ltd., for Claimant.
   Poch, J.

This matter coming on to be heard upon a joint stipulation for a portion of the complaint, which has been agreed to by Claimant, Lewis University, by its attorney Roman Okrei and by the Respondent by Tyrone C. Fahner, Attorney General of the State of Illinois, and the court being fully advised in the premises:

Finds: The stipulation pertains exclusively to the contract period from July 1,1973, to September 20,1973, and does not pertain to the contract period from October 1, 1973, to May 31, 1974, which is only a portion of the complaint.

The audit of the program during this contract period from July 1, 1973, to September 20, 1973, showed that $11,029.13 of the budgeted amount had not been expended for this project and should not be reimbursed to Claimant.

The total contract amount for this partial period was $52,904.71 with $35,496.66 already paid leaving a difference of $17,408.05 in dispute. By reducing the $11,029.13 of unexpended budget amounts from the disputed amount, the actual amount expended on the project for this partial contract period was $6,378.92.

It is hereby ordered that Claimant is granted a partial award of $6,378.92 for the contract period from July 1, 1973, through September 30, 1973, and further does not prejudice the rights of either party for the remaining portion of the contract between October 1, 1973, through May 31, 1974.


author: Holderman, J.

text:
    (No. 76-CC-2913
    Arthur D. Relford and Fair Employment Practices Commission, Claimants, v. The State of Illinois, Respondent.

      Order filed May 19, 1980.

      Order on rehearing filed August 13, 1980.

    Cornfield and Feldman (Clifford Scott-Rudnick, of counsel), for Claimants.
   Holderman, J.

This matter coming on to be heard upon the motion of Respondent to dismiss Claimant’s complaint and, it appearing to the court that Claimant has received due notice of said motion, and, the court being fully advised in the premises:

The court finds that the complaint herein is based upon an order and decision of the Fair Employment Practices Commission pursuant to an F.E.P.C. complaint filed 281 days after the alleged charge was filed and that Board of Governors v. Fair Employment Practices Commission (1979), 78 Ill. 2d 143, is controlling.

It is hereby ordered that the motion of Respondent be and the same is hereby granted and the complaint be and is hereby dismissed.

ORDER ON REHEARING

Holderman, J.

This matter comes before the Court upon the motion of Claimant to vacate and petition for rehearing and Respondent’s motion to strike Claimant’s motion to vacate and petition for rehearing.

The substance of Claimant’s motion to vacate and petition for rehearing is that there was not a motion to dismiss pending before the Court at the time the Court entered its order of May 19, 1980. In order to clarify the situation and to remove any procedural questions, the Court now enters the following order:

That of its own motion, said cause shall be dismissed. The Court cites the case of Joliet Mass Transit District v. Illinois Fair Employment Practices Commission (1980), 85 Ill. App. 3d 270.

The Court, in its findings in the above case, reaffirmed the Board of Governors case and the SpringfieldSangamon case dealing with a similar situation and reiterated its previous finding “that the legislative intent was that the complaint be filed within 180 days of the •charge and that absent an extension of the 180 day period agreed to in writing by all parties, and approved of by a member of the EE PC, the filing of the complaint subsequent to the expiration of that time was unauthorized.”

Respondent’s motion to strike Claimant’s motion to vacate and petition for rehearing is hereby granted and this cause is dismissed.


text:
    (No. 77-CC-0108
    Frederick Quinn Construction Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 18, 1981.

    Lord, Bissell & Brook (C. Joseph Yast, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

Claimant herein filed its complaint sounding in breach of contract for alleged damages arising out of the construction of Lisle High School in Lisle, Illinois. Claimant was general contractor for said project under a contract with the Capital Development Board. In its two-count amended complaint, Claimant seeks $23,206.70 for increased costs due to certain delays related to the project and $11,196.00 as a result of additional work it was required to perform which were in the nature of repairs.

This cause is presently before this court on the basis of a stipulation by the parties which incorporates a settlement agreement between the Claimant, Capital Development Board, and the State of Illinois. The parties have agreed between themselves to compromise and settle this claim for the amount of $33,832.00.

It is apparent to this court that the settlement agreement has been negotiated in good faith and with full authority by all parties. While it is the province of this court to consider each claim on its merits and determine the amount of damages, if any, an agreement of the parties to settle the claim will not be ignored.

In the case herein, the parties have agreed to settle the claim and have recommended this court honor its agreement. Having examined same, this court is of the opinion that the agreement is fair and responsible to both sides and will not attempt to second guess the parties herein.

It is hereby ordered that Claimant, Frederick Quinn Construction Company, be awarded $33,832.00 in full and complete satisfaction of all matters which are the subject matter of the claim herein.


text:
    (No. 77-CC-0125
    Danny Lee Horton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1980.

    Anesi, Ozmon, Lewin & Associates, Ltd., for Claimant.
    William J. Scott, Attorney General (Carl J. Klein, Assistant Attorney General), for Respondent.
   Poch, J.

This was an action for compensation against the State of Illinois for time unjustly served in prison. The claim is made under provisions of Ill. Rev. Stat. 1979, ch. 37, par. 439.8(c), which is as follows:

“All claims against the State for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amount: for imprisonment of 5 years or less, not more than $15,000.00; for imprisonment of 14 years or less but over 5 years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.”

Under the statute, imprisonment for five years or less, unjustly served, is a basis for an award for not more than $15,000.00.

The facts, as they relate to the Respondent’s liability are undisputed. Claimant, at age 17, was arrested on April 23, 1975, and charged with attempted murder, attempted armed robbery and aggravated battery and was incarcerated in the Winnebago County Jail on that date. On November 7, 1975, he was convicted of the three charges and on November 14, 1975, he was sentenced to ten months in jail (with credit given for seven months already served) to be served in the Winnebago County Jail and three years probation.

Claimant was released, pursuant to his sentence, in January 1976. Subsequently, on April 28, 1976, a confession was obtained by police from another party admitting the commission of the crimes for which Claimant was convicted. On December 15, 1976, Governor Daniel Walker issued Claimant a pardon on the grounds of innocence.

Since the Claimant has received such a pardon, the sole obligation of the Court is to find the amount that is due the Claimant and also set the attorney fees that should be paid by Claimant.

Respondent asserts that Claimant has not established the amount of damages to which he is entitled while Claimant contends that he should be awarded $15,000.00 as compensation for his unjust imprisonment.

Claimant was seventeen years of age at the time of his conviction and he was a high school student in the eleventh grade learning his trade of commercial art. Prior to incarceration he worked as a part-time machine operator.

Based upon the evidence before the Court, the Court enters an award to the Claimant for the sum of three thousand and 00/100 ($3,000.00) dollars and, in addition, sets the attorney fees at the sum of 25% of the award and payable from the award.


text:
    (No. 77-CC-0290
    Martin D. Miller, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 6, 1980.

    Paul Bradley, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim based on an alleged contract between Claimant and the State of Illinois, Department of Local Government Affairs.

Claimant, with leave of court, and over the objections of Respondent, amended his complaint by reducing his claim from $2,562.71 to $1,312.78, inasmuch as part of his claim was paid by a railroad pursuant to the order of the Circuit Court of Cook County.

The facts are essentially undisputed. Claimant is a self-employed appraiser and property tax consultant familiar with the appraisal of property of utility companies and railroads.

In May or June 1976, Claimant received an oral telephonic request from William Townsley, Chief of the Office of Financial Affairs, Dept, of Local Government Affairs, to review and critique a procedure developed by the Dept, of Local Government Affairs for appraisal of railroads for assessment purposes.

On June 8, 1976, Claimant prepared and forwarded to Mr. Townsley a written estimate for the proposed work. The fee quoted was $250.00 per day plus out-of-pocket travel and other expenses. In the estimate, Claimant stated “I would estimate that the total cost of the review and critique report would not exceed $1,700.00”.

On June 11, 1976, Mr. Townsley called Claimant and told Claimant to proceed with his work. Claimant thereupon commenced work on his report and completed the same on August 25,1976, and forwarded the same to the Dept, of Local Government Affairs which accepted delivery thereof.

On August 21, 1976, Claimant submitted an invoice in the amount of $2,562.71, which consisted of billing for fees of $2,187.50 and expenses of $375.21.

On December 20, 1976, the Dept. of Local Government Affairs wrote Claimant requesting the dates of travel and hotel expenses and informing Claimant that there would be a problem in processing the invoice for payment for fiscal year ending June 30, 1976.

Claimant supplied the necessary information on December 22,1976. On January 13,1977, the Director of the Dept, of Local Government Affairs, Frank Kirk, acknowledged the existence of an agreement between the parties but stated that payment for fiscal year 1976 could be made only through the Court of Claims.

On February 3, 1977, Claimant received a letter from John W. Castle, Acting Director of the Dept, of Local Government Affairs, advising Claimant, for the first time, that the position of the Department would be that the contract violated the provisions of the Illinois Purchasing Act.

Respondent, for its evidence, produced Vincent W. Johnson, Chief Fiscal Officer of the Dept, of Local Government Affairs, who testified that the procedure in the department was, in 1976 and thereafter, that all contracts were reduced to writing and approved by the Director of the Department and reviewed by legal counsel and that a copy was given to the State Comptroller.

Respondent defends this claim by raising three arguments as follows:

1. That Mr. Townsley had no authority to enter into a contract with anyone which would bind the State of Illinois.

2. That the alleged contract violates the Illinois Purchasing Act.

3. That the Illinois statutes require the filing of a memorandum with the State Comptroller’s Office, which is not shown to have taken place here.

As to Respondent’s first contention, Respondent relies solely on the testimony of Mr. Johnson, Chief Fiscal Officer of the Department, as to the procedures then in force in the Department. However, none of those procedures have the force of law. There was no showing that Claimant knew of such procedures. No regulations had been promulgated stating that only the Director of the Department had authority to enter into professional contracts nor has any statutory authority been cited to limit the contract making ability of those who are in apparent authority.

Mr. Townsley, having the title of Chief of the Office of Financial Affairs, had ostensible or apparent authority to enter into the agreement. In any event, the Director of the Department admitted the validity of the contract by his letter to Claimant of January 13, 1977, and thereby admitted that Mr. Townsley did, in fact, have authority to enter into the contract.

Respondent’s second argument is based on the Illinois Purchasing Act, Ill. Rev. Stat., ch. 127, pars. 132.9(a) and 132.10, which state as follows:

“132.9a Contracts for professional, technical or artistic skills. §9.01. Whenever any State agency contracts for services involving professional, or artistic skills and involving an expenditure of more than $2,500 for the same type of service at the same location during any fiscal year, which contract is exempt from competitive bidding by reason of sub-paragraph (2) of paragraph a of Section 6, a copy of the contract, which must be reduced to writing, shall be filed with the Comptroller. All copies of contracts filed pursuant to this Section are public records. The originals or copies of contracts filed pursuant to this Section shall be maintained by the Comptroller in files separate from those used for the filing of other contracts.”
“132.10 Void contracts. §10. Any contract entered into or purchase or expenditure of funds by a State agency in violation of this Act or the rules and regulations adopted in pursuance of this Act is void and of no effect. Amended by P.A. 78-944, §1, eff. Nov. 14,1973.”

Respondent argues that since the invoice exceeded $2,500.00, the statutory limit, the contract is legally void.

We disagree. The original contract was for an amount not to exceed $1,700.00. There was no expectancy, when made, that the contract would exceed the statutory limit. Thus, the contract, when made, did not violate the Illinois Purchasing Act by not having been reduced to writing and signed by both parties.

The fact that Claimant thereafter billed respondent for more than the statutory limit does not invalidate the original contract. That part of the invoice which exceeds $1,700.00 was not authorized by Mr. Townsley or anyone else on behalf of the Respondent, and was not authorized by the Agreement. The proposal had a ceiling of $1,700.00 and thus Claimant had no right to run up a bill in excess of that amount without further authority from Mr. Townsley. There is no evidence that such authority was given.

It is thus clear that the actual compensable contract, being below the limits set in the Illinois Purchasing Act, are not voided by that Act.

The Respondent’s final argument is based on Ill. Rev. Stat., ch. 151, pars. 211 and 215, which state as follows:

“211. §11. Contracts for professional, technical or artistic skills — Vouchers— Warrants). No voucher shall be submitted to the comptroller for a warrant to be drawn for the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract for services involving professional, technical or artistic skills which is subject to Section 9.01 of “The. Illinois Purchasing Act” unless the provisions of that Section have been complied with. In addition, no voucher for payment for professional, technical or artistic skills which is in excess of $1500, may be approved by the comptroller unless the contract or a memorandum for such services has been filed with the comptroller.”
“215. §15. Copies of certain contracts to be filed.) Whenever a contract liability, except for personal services, equalling or exceeding $500 is incurred by any State agency, a copy of such contract, purchase order, lease or requisition shall be filed with the comptroller within 5 days thereafter. Any cancellation or modification to any such contract liability shall be filed with the comptroller within 5 days of its execution.”

As to par. 211 there is no evidence that a memorandum was filed with the Comptroller. However, the proposal of the Claimant constituted a memorandum which the Department of Local Government Affairs could have, should have, and still may file with the Office of the Comptroller. Such action is peculiarly within the control of the Respondent and should not be the basis of a denial of the claim.

As to par. 215 the same is inapplicable as it contains within it an exception for personal services contracts.

It is hereby ordered that the Claimant, Martin D. Miller, be and the same is hereby awarded the sum of one thousand three hundred twelve and 78/100 ($ 1,312.78) Dollars.


text:
    (No. 77-CC-0411
    Francis Sitowski, Administrator of the Estate of Thomas J. Sitowski, Deceased, Claimant, v. The State of Illinois, Illinois Department of Children and Family Services, and William T. Coughlin, Respondents.

      Order filed April 14, 1980.

      Order on denial of rehearing filed August 1, 1980.

    Patrick Mahoney and Associates, P.C., for Claimant.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss and objections to said motion by Claimant. This matter having been heard on oral argument and the Court being fully advised in the premises, finds:

That Respondent’s motion is based primarily upon the fact that the offense on which this action is predicated was committed by a member of the State of Illinois, Department of Children and Family Services. Respondent’s motion sets forth that the act committed by the State employee was a criminal act and not in the furtherance of any of his duties with the State of Illinois, and that on the day the act was committed, the employee had called in sick and was not actually on duty at the time the act occurred.

Respondent makes further objections on the ground that Claimant has not exhausted his remedies as he has not filed suit, except in the Court of Claims, against the individual who committed the act complained of. Claimant filed suit in the Court of Claims attempting to join the State of Illinois and the State employee in one action. Respondent also bases its motion to dismiss on the failure of claimant to comply with the provisions of Rules 5, 6, 7 and 8 of the Court of Claims.

Thomas J. Sitowski was fatally wounded on March 9,1976, by one William T. Coughlin, an employee of the State of Illinois Department of Children and Family Services. He had been one of the State’s employees assigned to handle the case of Tami Sitowski, daughter of the deceased, and there had been difficulties between the deceased and the employee of the State.

It is the opinion of this Court that it is the law of the State of Illinois that legal official acts of State officers are in effect acts of State itself, illegal acts performed by officers are not, and when a State officer performs illegally or purports to act under an unconstitutional act or under authority which he does not have, a suit may be maintained against the officer and is not an action against State. Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, opinion handed down by Justice Ryan. In the case of Gambling v. Cornish, et al, 426 F. Supp. 1153 (1977), it was held that when certain police officers of the City of Chicago committed torts against the Claimant, the officers were not acting within the scope of their employment.

The Court further finds that by filing suit against the officer involved in the fatal shooting in the Court of Claims rather than in a civil court of the State of Illinois, Claimant has not exhausted its remedies as required by the Statutes of the State of Illinois.

It is the opinion of this Court that at the time the shooting occurred, the State employee was not acting within the scope of his employment and the State, therefore, is not responsible for said act.

It is hereby ordered:

That this case be, and the same is dismissed.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter coming on to be heard upon the motion of Respondent to strike Claimant’s petition for rehearing, and it appearing to the court that Claimant has received due notice of said motion, and the court being fully advised in the premises; finds:

1. That the petition for rehearing herein is defective in that it was not filed within thirty (30) days of entry of the order of April 14, 1980, which order dismissed the claim herein.

2. That the Claimant has presented no new matter to the court for its consideration and has failed to show the court that it misapprehended or failed to apply the law properly.

3. That the Claimant failed to comply with Section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24 — 5), in that she did not seek a remedy against William Coughlin.

4. It is hereby ordered that the Claimant’s petition be and the same is hereby denied.


text:
    (No. 77-CC-0485
    Dr. Marcel Frenkel, M.D., Claimant, v. The State of Illinois, Respondent.

      Order filed November 5, 1980.

    Dr. Marcel Frenkel, M.D., pro se, for Claimant.
   Poch, J.

This matter coming to be heard upon the motion of the Respondent to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice of said motion, and the Court being fully advised in the premises:

Finds:

1. That this motion is brought pursuant to Illinois Rev. Stat. 1979, ch. 110, par. 48 (ii).

2. That Claimant alleges that Respondent owes $1,100.00 for medical services rendered to a public aid recipient on August 8, 1976.

3. That according to the Department of Public Aid report, the entire amount of the claim was $500.00 and was satisfied on January 3, 1977, when Respondent tendered and Claimant accepted payment of $500.00.

4. That Ill. Rev. Stat. 1978, ch. 23, par. 11 — 13 provides in pertinent part, that “acceptance of the payment by or in behalf of the vendor shall bar him, from obtaining or attempting to obtain, additional payment therefor from the recipient or any other person.”

5. That Claimant effectuated a good accord and satisfaction of the pre-existing claim when he agreed to accept the new security tendered by Respondent on January 3,1977, and therefore is precluded from recovering additional funds now.

6. That Claimant’s complaint attributes nonpayment to lapse of funds.

7. That the unpaid balance of Claimant’s statement was refused not by reason of lapse of funds as stated by Claimant, but rather for the reason that the claim had been satisfied by the payment of $500.00.

8. Claimant’s complaint therefore incorrectly attributes nonpayment to lapse of funds and is therefore dismissed.

It is hereby ordered that the motion of Respondent be, and the same is, hereby granted and the claim herein be and is hereby dismissed.


text:
    (No. 77-CC-0558
    Verna Hesterly, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Opinion filed March 6, 1981.

    Randall M. Jacobs, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim against the State of Illinois alleging that in September 1971 the Department of Corrections of the State of Illinois wrongfully terminated her employment.

Claimant filed a claim with the State of Illinois Fair Employment Practices Commission, Charge No. 73S-57. As a result of the filing of this claim, Claimant and the Illinois Department of Corrections entered into an agreement wherein Claimant was to receive the sum of $49,595.70. In this agreement, there was a statement to the effect that the Illinois Department of Corrections “shall not challenge the Complainant’s claims for damages as set forth in the statement of damages when such claim is presented to the Court of Claims.”

Claimant seeks to recover the amount agreed upon in said agreement with the Illinois Department of Corrections in the amount of $49,595.70, plus an additional $8,987.86 which she claims was the amount of additional damages she incurred by reason of her attempt to enter into a business which was unsuccessful, or a total of $58,583.56.

It is Respondent’s contention that the agreement entered into by and between Claimant and the Illinois Department of Corrections is not binding upon the Court of Claims and that the amount sought in damages is incorrect. Respondent’s position is that the money lost by Claimant in attempting to start a new business while being idle is not chargeable against the State of Illinois. Respondent also states that her earnings of $4,683.47, which was the amount she earned during the period of time she was laid off, is not, in itself, sufficient to show she made a diligent effort to reduce the amount of the claim she might have against Respondent.

The date of Claimant’s layoff was September 30, 1971, and her subsequent return to employment with the State of Illinois was January 15,1977, following an order and decision of the FEPC.

The only evidence in the record is that introduced by Claimant concerning the efforts she made to find gainful employment during the period of her layoff. Respondent was very critical of this evidence and argues that it did not show sufficient effort on the part of Claimant to minimize the amount recoverable from the State by securing other gainful employment. Claimant did not submit any applications for the various places she allegedly applied for employment. Her testimony was that in most places, prospective employers refused to take her application.

In the agreement reached between Claimant and the FEPC, the dollar figure set forth indicates a claim in the amount of $49,595.70. This was arrived at by calculating what Claimant would have earned had she been reemployed by the State of Illinois on June 1, 1972, minus actual earnings and vacation day credits, plus interest of 6% on the balance that she would have earned. Respondent takes the position that the maximum amount claimant is entitled to is $44,509.94, less $480.00 for vacation allowance credits and $4,683.47 for earnings in 1976, leaving a balance of $39,346.47.

It is the Court’s opinion that the agreement entered into between Claimant and the FEPC is not binding upon the Court of Claims and that interest on claims of this nature cannot be allowed. Interest can be allowed only where there is a special statute providing for the same. See 18 Ill. Ct. Cl. 156.

It is the Court’s opinion that in the absence of evidence offered by Respondent to show that Claimant had failed in her efforts to mitigate the damages, an award in the amount of $39,346.47 is hereby entered in favor of Claimant.


text:
    (No. 77-CC-0644
    Eleanor Coonley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 4, 1980.

    McBride, Baker, Wienke & Schlosser (Paul D. Frenz, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant seeks to recover the sum of $720.00 for services performed for the Department of Children and Family Services of the State of Illinois. The Claimant is a clinical social worker.

In December of 1976 the Claimant was given a form contract, by an agent of the Department to perform social services for the Department as a clinical social worker. The contract was signed by the Claimant and by agents for the Department of Children and Family Services. All the relevant information was set forth with the exception of the maximum amount payable. The contract was sent to Springfield for final processing. While Claimant waited for the final approval of said contract, she was told by the agents that the Department was apt to be slow in returning it. Based on these assurances by the agents of the Department, Claimant began performing her services under the contract. Thereafter she submitted vouchers to the State for $720.00 to compensate her for the services performed, which the State refused to pay.

The State does not dispute the fact that Claimant has performed services but that there was no written contract.

From the record and the briefs of the parties the Court finds that the claim is a just and lawful one, which should be paid. It is, therefore, the judgment and order of this Court that an award be made to Claimant, Eleanor Coonley, in the amount of seven hundred and twenty dollars ($720.00).


text:
    (No. 77-CC-0677
    Elvis Rowland, Sr., Claimant, v. The State of Illinois, Respondent.

      Order filed December 3, 1980.

      Order on denial of rehearing filed March 26, 1981.

      Order on denial of motion for reconsideration filed June 29, 1981.

    Richard F. McPartlin, for Claimant.
   Holderman, J.

This matter comes before the Court upon the second motion to dismiss filed by Respondent and objection to said motion filed by Claimant.

This case has been pending for several years and there have been a multitude of motions filed by both parties and several new issues presented to the Court for the first time.

Claimant filed a claim against the State of Illinois seeking to collect an award entered by the Illinois Fair Employment Practices Commission (F.E.P.C.). This award was for monetary damages awarded to Claimant and he seeks not only to recover the monetary damages but also the interest on said award.

The claim before the F.E.P.C. was filed 194 days after the incident arose on which this claim is based.

The Respondent’s motion to dismiss sets forth the following reasons for dismissal:

“1. That respondent brings this motion pursuant to Ill. Rev. Stat., 1977, ch. 110, sec. 45(2) because the complaint is substantially insufficient in law.

2. That respondent also brings this motion pursuant to Ill. Rev. Stat., 1977, ch. 37, sec. 430.24 — 5, providing that a claimant must exhaust all other remedies before seeking a final determination of his claim in this court.

3. That respondent also brings this motion pursuant to Ill. Rev. Stat., 1977, ch. 37, sec. 439.8 which provides that the Court of Claims ‘shall have exclusive jurisdiction’ of any claim against the State based upon any law of the State of Illinois.

4. That the complaint (Paragraph 5, No. ‘4.’) shows that the F.E.P.C. purported to enter a monetary award in favor of claimant in violation of Ill. Rev. Stat., 1977, ch. 37, sec. 439.8.

5. That the complaint (Paragraph 5, No. ‘4’) shows that the F.E.P.C. purported to enter a monetary award against the State of Illinois contrary to and in violation of the statute creating the F.E.P.C. (Ill. Rev. Stat., 1977, ch. 48, secs. 851, et seq.)”

Claimant filed his objection to said motion to dismiss and sought to have the same stricken or dismissed.

The first question is whether or not the Court of Claims has the jurisdiction of this cause and whether or not the motion to dismiss, which was filed some four and one-half years after the initial proceedings were started, was too late. The Courts of Illinois have held that a motion questioning the jurisdiction of the Court may be raised at any time. See Talandis Construction Corp. v. Illinois Building Authority, 60 Ill. App. 3d 718.

The general rule in Illinois seems to be that this question can be raised at any time and that every act of the Court beyond its jurisdiction is void.

It seems well established, therefore, that Respondent could raise its motion to dismiss at any time. It is interesting to note in the Talandis case above cited that the question of jurisdiction was raised some five years after the start of the litigation, which is even longer than in the present case.

The Respondent dwells at some length upon the statute establishing the time a suit should be started. The pertinent part of the statute in question is Ill. Rev. Stat. 1977, ch. 48, par. 958.01, which states:

“Whenever such a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof or within any extension of that 180 day period agreed to in writing by all parties and approved by a member of the Commission shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and respondent.”

Respondent takes the position that this is a mandatory condition and must be complied with and therefore the filing of the complaint some 14 days after the 180-day filing period is too late and that the matter should be dismissed.

Claimant takes the position that this time limitation is not mandatory and is discretionary, that it can be waived by the acts of the parties and that is has been waived in this instance by the long delay in the filing of the motion to dismiss.

Neither Claimant nor Respondent has been able to find a case directly in point.

Chief Justice Goldenhersh of the Illinois Supreme Court, in the case of The Board of Governors of State Colleges and Universities for Chicago State University v. Illinois Fair Employment Practices Commission (1979), 78 Ill. 2d 143, in commenting on this section of the statute, stated as follows:

“From our examination of the statute we conclude that the legislative intent was that the complaint be filed within 180 days of the charge and that absent an extension of the 180-day period agreed to in writing by all parties, and approved by a member of the FEPC, the filing of the complaint subsequent to the expiration of that time was unauthorized. We need not consider the question whether conduct other than an agreement in writing may be sufficient to extend the period, since the record presents no such question and, in each instance, the motions to dismiss filed with the FEPC show clearly that the limitation was not waived.”

Justice Ryan of the Illinois Supreme Court, in the case of Springfield-Sangamon County Regional Plan Comm. v. Fair Employment Practices Commission, 71 Ill. 2d 61, 68, in passing upon this particular section, stated that “the 180-day period prescribed in the statute was intended to ensure expeditious action on behalf of the FEPC, and must be considered mandatory.”

Cases have been cited to the effect that subject matter jurisdiction cannot be conferred upon a court by consent of the parties or by their acquiescence, citing Michelson v. Industrial Commission, 375 Ill. 462, 469-470, 31 N.E.2d (940), and other Illinois cases.

The Court notes that when this statute was passed, the legislature expressly provided how the time could be extended and was limited to an agreement, in writing, and signed by all parties. In the present case, there was not any such agreement in writing and it appears therefore that the statute telling the only way an extension could be granted was not complied with.

The next material question, in the opinion of the Court, is whether or not the F.E.P.C. has the right to make a monetary judgment or award against the State of Illinois.

The rule is well established in the State of Illinois that certain cases, with the express statutory exception of awards arising under the Illinois Workmen’s Compensation Act, are limited to the Court of Claims. In the Talandis case heretofore cited, the Court held that the Illinois Court of Claims has exclusive jurisdiction to hear and determine certain enumerating matters, including all claims in tort and contracts against the State of Illinois, the only exception which the Court is aware of being the Illinois Workmen’s Compensation Act where it expressly provides that all employees of the State are entitled to the benefits of the Workmen’s Compensation Act. Consequently, the only place those rights can be asserted is in the Illinois Industrial Commission.

Claimant, in its brief, cites the case of A. P. Green Services v. F.E.P.C. 312 N.E.2d 314, where an award was made by the F.E.P.C. for monetary damages. The Court distinguishes that case from the present case because A. P. Green was a private corporation and not the State of Illinois.

Among other objections raised by the Respondent is the fact that there had not been any money appropriated by the legislature for the express purpose of paying the amount of the award in question and, as a matter of fact, the legislature had cut the appropriation so that not any money was available for the payment of the award.

The Court is of the opinion that the filing of this claim 14 days after the 180 day statutory period and without any extension agreed to in writing by the parties was late and is further of the opinion that the F.E.P.C. does not have the statutory authority to render a monetary award against the State of Illinois.

In view of the fact that the Court is of the opinion that this case should be dismissed because of failure to comply with the 180 day filing period and the F.E.P.C. not having the powér to make a monetary award, it is not necessary for the Court at this time to pass upon the other objections raised by Respondent.

Motion to dismiss is hereby granted and this cause is dismissed.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimant for rehearing of an order dismissing said cause.

The claim in this cause was filed 194 days after the incident arose out of which this claim is based.

The Court, in its order dismissing this cause, held that the claim should have been filed within 180 days as provided by statute and that the F.E.P.C. did not have the power to render a monetary award against the State of Illinois.

Claimant, in its filing of March 2, 1981, relies upon the case of Louise v. Illinois Dept, of Labor, 90 Ill. App. 3d 410. In that case, the Appellate Court held that mandatory time limitations are not jurisdictional in the sense of subject matter jurisdiction and are therefore subject to estoppel and waiver. In that particular case, it appears that the Claimant went to the Department of Labor for the purpose of filing a timely appeal and was informed that she could have more time and file her appeal two days after the deadline. She was further informed that the office was in the process of being moved and her files could not be located. The Court held that parties by their conduct may waive or be estopped from invoking the protections afforded them and that, in the present case, where the Claimant had sought to file her appeal within the required time fixed by statute, and was prevented from so doing by the acts of Respondent, Respondent is estopped from setting up the time limit as a defense.

The Louise case is vastly different from the case at bar as there was no showing on the part of Claimant to file his claim within the time prescribed by. statute.

Motion for rehearing is denied and this cause is dismissed.

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

Holderman, J.

This matter comes before the Court upon motion of Claimant to reconsider and vacate order of March 28, 1981 denying petition for rehearing and dismissing cause.

The complaint in this cause was filed 194 days after the incident arose out of which this claim was based. The Court, in its original order dismissing this cause, stated that the claim should have been filed within 180 days as provided by statute and the F.E.P.C. did not have the power to render a monetary award against the State of Illinois.

Claimant relies upon the case of Louise v. Illinois Dept, of Labor, 90 Ill. App. 3d 410. In that case, the Appellate Court held that mandatory time limitations are not jurisdictional in the sense of subject matter jurisdiction and are therefore subject to estoppel and waiver. In the Louise case, Claimant went to the Department of Labor for the purpose of filing a timely appeal and was informed she could have more time and file her appeal two days after the deadline. She was further informed that the office was in the process of being moved and her files had been lost. The Court held that the parties by their acts may waive or be estopped from invoking the protections afforded them and that where the Claimant had sought to file her appeal within the required time fixed by statute, and was prevented from doing so by the acts of Respondent, Respondent is estopped from setting up the time limit as a defense.

The Louise case is entirely different from the case at bar as there were no affirmative acts of misleading conduct on the part of the Respondent such as existed in the Louise case. In that case, the affirmative acts on the part of Respondent in misleading Claimant were the actual cause of her claim not being filed on time. There were no such acts or actions on the part of Respondent in the present case.

It is hereby ordered:

That Claimant’s motion to reconsider and vacate order of March 28, 1981 denying petition for rehearing and dismissing cause is denied, and this cause is dismissed.


text:
    (No. 77-CC-0961
    John Dozier, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1981.

    John Dozier, pro se, for Claimant.
    William J. Scott, Attorney General (Sue Mueller and William E. Webber, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C. J.

Claimant seeks from Respondent the payment of the sum of $1,000.00 for moving expenses when Claimant, as an employee of the State of Illinois, he was transferred from one geographic area (Mill Shoals, Illinois — District 9) to another (Island Lake District 22), a distance of 315 miles. This claim was filed June 8, 1977.

This case was originally set for hearing on November 8, 1979, in White County, at Carmi, Illinois, but that setting was cancelled at Claimant’s request. Thereafter, the matter was set for February, 7,1980, at Harrisburg in Saline County, Illinois, and a hearing was held at that time. No briefs have been received from either the Claimant or the Attorney General’s office.

Dozier testified that he was a revenue collection officer with the Illinois Department of Revenue and his duties were to effect tax collections for the Illinois Department of Revenue. At the time of his move, he had been employed by the State for approximately six years.

Claimant testified that he received a letter from the Director of Revenue, Robert Allphin, informing him that he was transferred from Marion, Illinois to Wheaton, Illinois, effective October 1,1975.

The letter, dated September 8, 1975, was admitted in evidence and states as follows:

“You are hereby notified that effective October 1, 1975, you are transferred to the District No. 2 office located at 421 North County Farm Road in Wheaton, Illinois. Please report to Mr. James Book, District Tax Administrator, at 8:30 a.m. on the effective date.”

Claimant testified that at the time he received the notice of transfer he filed a court case against the Department, objecting to the transfer, but ultimately moved in May or the first part of June in 1976.

In a memo prepared by the Claimant and attached to the claim in this cause the Claimant set forth in narrative form his computations as to the moving expenses. His expenses included the following:

Material Cost for Construction of moving trailer: $ 300.00

Labor constructing trailer (20 hours at $8.00/hour): 160.00

Cover for trailer: 22.00

Cost differential for purchase of new car necessitated by damage during moving: 1,300.00

Damage to furniture in moving due to hole in trailer cover: 350.00

Four complete round-trips and one trip one-way: 2,835 miles at 20 cents per mile: 567.00

Sixty hours driving time at $5.00/hour: 300.00

Repair of trailer cover: 57.00

TOTAL $3,056.00

Claimant claims $1,000.00 for moving expense and argues that a co-employee moved to an area close to where Claimant moved (25 miles less distance) and was afforded $1,700.00 in moving expenses.

Claimant was unable to provide any documentation consisting of receipts for bills, cancelled checks or other documentation tending to establish the expenditure of funds claimed by him and alluded to by his memo of March 10,1977. Claimant states the differential in trading cars set forth by him in his memo is not included by him in justifying any part of this claim. Claimant justifies his mileage charge at the rate of 20 cents per mile based on “professional carrier people” charges at the time of the move. Claimant admits that the State rate for travel at that time was 12 or 13 cents per mile. Claimant claims that the damage to his trailer cover of $57.00 is part of his claim because the trailer cover wore out having “simply mildewed from being stored.” Claimant had no documentation tending to support his conclusion that the welding work he did to build the trailer for moving purposes should have been compensated at the rate of $8.00 per hour. Claimant had no documentation tending to support his conclusion that public carriers engaged in the business of moving people at or about the time of Claimant’s move were charging 20 cents per mile and $5.00 an hour. Claimant said he had documentation relative to his purchase or expenditures regarding the trailer that he constructed.

Claimant submitted a group exhibit 3, consisting of quite a large number of letters and items tending to show that he did in fact move to Wauconda in connection with his change of location for job purposes.

Claimant argues that the personnel rules of the State of Illinois require that the State reimburse employees for reasonable moving expenses. Claimant stated that he had oral authorization from his immediate supervisor to move and relocate, but he did not specifically have authorization to build the trailer or authorization to move in the manner which he chose to move.

The Court has been furnished with no arguments or authority on behalf of the Attorney General’s office regarding the applicable rules and regulations with - respect to travel reimbursement.

At the hearing, the Commissioner was provided with a rules pamphlet purporting to be issued by the Department of Personnel in Springfield, bearing a revision date showing an effective date of June 1, 1975. Rule 2 — 430 under “Employee Transfers” provides as follows:

“GEOGRAPHICAL TRANSFER
Geographical transfer is the transfer of an employee from one geographical location in the State to another for the performance of duties other than temporary assignments or details for the convenience of the employers. Geographical transfers shall be made only with the approval of the Director. An employee who refuses to accept a geographical transfer must report for duty at the new location but may make written appeal of such transfer to the Civil Service Commission within 15 days after the effective date of the transfer. An employee shall be reimbursed for all reasonable transportation and moving expense incurred in moving to a new location because of permanent geographical transfer unless such transfer was applied for by the employee.”

Claimant has failed to show to the Court any authority for his claim other than the above-quoted Section. It is impossible from the record in this cause for the Court to adjudicate whether Claimant is entitled to moving expenses and if so, the computation of the expenses upon which he is entitled reimbursement. We find that Claimant has failed to meet his requisite burden of proving entitlement to the amount claimed or any amount. Therefore, this claim is hereby denied.


text:
    (No. 77-CC-1270
    Cyreniaica Moore, Claimant, v. The State of Illinois, Respondent.

      Order filed December 9, 1980.

    Cyreniaica Moore, pro se, for Claimant.
   Poch, J.

This matter coming on to be heard upon the motion of Respondent to dismiss the claim herein, and, it appearing to the court that Claimant has received due notice of said motion, and, the court being fully advised in the premises;

Finds that pursuant to Rule 14 of the Court of Claims the Departmental report issued by the Illinois Department of Labor, Bureau of Employment Security is prima facie evidence of the facts stated therein.

Finds: That the departmental report establishes that on June 28, 1977, a hearing was conducted by the department and that the hearing determined that the State warrant in question was fraudulently cashed by Claimant’s husband and should not be issued.

That in Anaya v. State, 78-CC-1279, this Court held that it lacks jurisdiction to review an administrative decision of the Department of Labor regarding the reissuance of an unemployment check.

It is hereby ordered:

That the motion of Respondent be and the same is hereby granted and the claim herein be and is hereby dismissed.


text:
    (No. 77-CC-1592
    Dorothea Casey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 20, 1980.

    Cornfield and Feldman (Clifford Scott-Rudnick, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant in this matter, Dorothea Casey, has been employed by the State of Illinois, Dept, of Mental Health since 1947. Claimant’s job position title was clerk stenographer III for the period of time which is the subject of this claim, she was entitled to pay and benefits of the job position title of Secretary I.

Claimant timely filed an appeal of her job allocation with the Illinois Civil Service Commission (ICSC). A hearing was held pursuant to the rules of the ICSC and the Commission entered its order on May 18, 1977, awarding Claimant salary differential for the period of April through September, 1975. Claimant also timely filed a grievance pursuant to the Illinois Department of Personnel, seeking in part monies owed to her because of alleged improper acts committed by the Department of Mental Health.

As a result of that grievance, a monetary award was entered for Claimant, calculated by subtracting the difference between the salary level of Secretary I and Clerk Steno III. This grievance award explicitly covered the period from July 1, 1975 to December 16, 1976. This grievance award also provided for credit for period already covered by the Civil Service Commission award noted above.

Claimant then pursued her grievance rights through grievance review'by the Department of Personnel. The final decision of the Department of Personnel was never appealed to any Court.

Claimant now requests that she be awarded monies totaling $1,514.53 for the period of time from April 1, 1975, through December 15,1976. This includes both the period of time granted by the ICSC and the extended period awarded by the Department of Personnel.

Respondent now disputes the time span over which these awards extend and requests this Court to reduce Claimant’s award from $1,514.53 to $829.43.

In support of its position Respondent has introduced evidence designed to cast doubt on the earlier decision’s conclusions that Claimant was in fact performing Secretarial I functions during the period in question. Respondent has also presented a rather novel solution to the problem whereby on the one hand they admit that there is no Personnel Rule relating directly to temporary assignments to higher job classifications, yet recommend that the Court treat the temporary assignment as a temporary reallocation and thereby implement Personnel Rule 130. This would permit retroactive adjustment back to November 9, 1975, the date Claimant’s request for reaudit was filed with the Department of Personnel.

We are not persuaded by this testimony and argument. At the onset it must be noted that a final and appealable order of the Civil Service Commission may be reviewed by the Circuit Court subject to the rules of the Court and the procedures of the Administrative Review Act. In Claimant’s cause no such review was initiated. Likewise, no appeal was filed regarding Claimant’s grievance award. This Court is of the opinion that such issues as Respondent has raised should be the object of appeal through the Administrative Review Act. This Court is not the forum for tardy appeals that Respondent has either carelessly or deliberately neglected to bring in the Circuit Court.

Accordingly, it is hereby ordered that the Claimant, Dorothea Casey, be and the same is hereby awarded the sum of one thousand five hundred fourteen and 53/100 ($1,514.53) dollars.


text:
    (No. 77-CC-1739
    Donald W. Splain, Regional Superintendent of Schools, Logan and Menard Counties, Claimant, v. The State of Illinois, Respondent.

      Order filed December 22, 1980.

    Donald W. Splain, pro se, for Claimant.
   Poch, J.

This matter comes before the Court upon the motion of Respondent to reconsider the Order denying Respondent’s Motion to Dismiss entered on October 23, 1980, Claimant filed no objections to Respondent’s motion to dismiss, and the Court being fully advised in the premises:

Finds:

1. Rule 14 of the Rules of the Court of Claims of the State of Illinois establishes that departmental reports issued by State departments or agencies are considered prima facie evidence of the facts set forth therein.

2. The departmental report issued by the State Board of Education, a State department or agency, establishes that the appropriation for these expenditures for fiscal year 75-76 and fiscal year 76-77 have been completely exhausted.

3. This departmental report is prima facie evidence of the facts set forth therein.

4. Article VIII, section 2(b) of the Constitution of the State of Illinois, 1970, states that:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

5. The legislature of the State of Illinois has enacted Ill. Rev. Stat., ch. 127, par. 166, which states:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in any amount in excess of the money appropriated, unless expressly authorized by law.”

6. As the money appropriated for these expenditures has been completely exhausted, and as Article VIII, section 2(b) of the Illinois Constitution of 1970, and Ill. Rev. Stat., ch. 127, par. 166, prohibit deficiency appropriations, this cause must be dismissed with prejudice.

It is hereby ordered:

That the Order of October 23, 1980, is vacated and that the motion of Respondent be and the same is hereby granted and the claim herein is hereby dismissed.


text:
    (No. 77-CC-1832
    Albert G. Smith, Regional Superintendent of Schools, Henry and Stark Counties, Claimant, v. The State of Illinois, Respondent.

      Order filed November 26, 1980.

    Albert G. Smith, pro se, for Claimant.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss claim heretofore filed.

Respondent’s motion states that the departmental reports issued by the State department, the Illinois State Board of Education, establish that the money for this expenditure for fiscal years 1975-76 and 1976-77 was completely expended. The Motion further states that Ill. Rev. Stat., ch. 127, par. 166 states as follows:

“No officer, institution, department or board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in any amount in excess of the money appropriated, unless expressly authorized by law.”

The report, attached to the motion, sets forth that the State Board of Education budgeted the sum of $1,000 for each county for the school year 1976-77, but Governor Walker, by amendatory veto of Senate Bill 1935, reduced the amount to $78,000 which provided the sum of $1,000 for each regional area.

Motion to Dismiss is hereby granted and this cause is dismissed.


text:
    (No. 77-CC-2122
    James W. Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 1, 1980.

    James W. Moore, pro se, for Claimant.
   Roe, C. J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property. This court has held in Doubling v. State, 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and voluntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof. Chesterfield Sewer and Water, Inc. v. Citizens Insurance Company of New Jersey, 57 Ill. App. 2d 90, 207 N.E.2d 84.”

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So.2d 172, 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Bell v. State of Illinois, 32 Ill. Ct. Cl. 664; Bargas v. State, 32 Ill. Ct. Cl. 99; Romero v. State of Illinois, 32 Ill. Ct. Cl. 631.

In the case at bar, Claimant was transferred from Stateville penitentiary to Menard. Three days prior to Claimant’s transfer, his personal property was inventoried by and removed in the possession of a correctional department employee. Upon his transfer to Menard Correctional Center, Claimant’s personal property was depleted by the loss of certain packs of cigarettes and commissary food items of a total value of $10.00.

The personal property receipt covering the items which were ultimately lost was introduced as Claimant’s exhibit “1”, bearing the signature of a correctional officer. Under these circumstances, the burden of proceeding with proof of due care shifted to Respondent. There was no proof of due care and facts are undisputed.

It is therefore ordered that Claimant be awarded the sum of $10.00.


text:
    (No. 77-CC-2133
    Independent Mechanical Industries, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 16, 1981.

    Kirkland & Ellis (Cornelius J. Harrington, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause comes before the court on the joint stipulation of the parties hereto. The amended claim involves a suit for breach of contract arising out of certain work done by Claimant for the Capital Development Board, hereinafter referred to as the “Board” on a project at Jacksonville Mental Health & Developmental Center.

Claimant seeks the sum of $6,565.11 representing certain extras it says were performed on the project at the behest of the Board. The Board through the supervising architect, Armand Sarti, acknowledges that $1,794.70 represent valid extra costs on the project.

The Board has agreed to the entry of an award herein in the amount of $1,794.70 and the Claimant has agreed to accept same in full satisfaction of any and all claims which are the subject matter of the instant complaint.

It is hereby ordered that the sum of $1,794.70 (one thousand seven hundred ninety four dollars and seventy cents) be awarded to Claimant, Independent Mechanical Industries, Inc., in full satisfaction of any and all claims presented to the State of Illinois and the Board under the instant cause.


text:
    (No. 77-CC-2165
    Leo S. Dugosh and Therese Dugosh, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1981.

    John C. Hedrich, for Claimants.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim for crop loss resulting from the negligent failure of the State of Illinois to. maintain drainage under and through the Illinois-Mississippi Canal.

A hearing was conducted before Commissioner Bruno P. Bernabei, who heard testimony of several witnesses, received evidence and the briefs and arguments of counsel. The Commissioner has duly filed his report, together with the transcript, exhibits and briefs now before us.

In 1894 the United States of America had condemned certain farm land in Bureau County for the construction of the Illinois-Mississippi Canal. The canal was eighty feet wide at the water line and seven feet deep.

The pertinent part of the condemnation petition filed in U.S. District Court for the Northern District of Illinois alleged:

“That the United Spates will properly connect the tile drains now laid in said lands wherever the same are cut by said canal, carry the same under said canal and give the same a proper outlet on the south side thereof; so that after the completion of said canal, said lands will be as thoroughly drained as they are at the present time.”

Claimants’ land, then owned by a predecessor in title, was part of the land condemned. The natural drainage of the land was south toward the canal by means of a natural drainage ditch, which drained approximately two square miles of farm land; the water ultimately flowing into a creek known as Bureau Creek. The canal blocked this drainage. To correct this, so that Claimants’ land would continue to drain properly, the United States laid two 48-inch drainage tubes under the canal at a point where the natural drainage ditch would empty into the tubes, thereby carrying the surface water under the canal. The United States obtained an easement from the property owner on the south side of the canal to construct a ditch carrying this water from the mouth of the tubes on the south side of the canal south into Bureau Creek. In addition, the United States laid 1900 feet of ten-inch tile along the north side of the canal to drain into the two tubes.

The property, specifically involved in this claim, is a twenty-one acre field, bought by Claimants in 1966, and bordering on the north bank of the canal. In 1967 claimants notified the Department of the Army Corps of Engineers that the tubes and the ditch south of the canal were plugged, and the Corps of Engineers did the necessary remedial work in 1968 to restore the drainage.

In 1970 the State of Illinois took title to the canal from the United States government.

In early 1972, the culverts under the canal again began to fill. The State of Illinois was notified that the drainage was blocked and failed to provide proper drainage. An award was made to the Claimants in Dugosh v. The State of Illinois 31 Ill. Ct. Cl. 493, for damage to their property during the years 1973 and 1974. The present claim is for damage because of flooding of Claimants’ field for the years 1975, 1976 and 1977.

The issue presented is whether the State of Illinois connected the tile drains in the Claimants’ land, carried them under the Illinois Mississippi Canal and gave them a proper outlet on the south side thereof, so that the Claimants’ lands were as thoroughly drained as they were before the canal was constructed.

The Illinois-Mississippi Canal when built was, in effect, a public highway for transportation of barge traffic from Hennepin to the Mississippi River. Its construction disrupted the natural drainage in the area concerned. The United States government, however, by constructing the drainage facilities previously described, restored the drainage to its former condition and, according to the record, maintained these facilities as recently as 1967. The Respondent, State of Illinois, present owner of the canal, apparently refuses or is unable to keep the drainage structures in repair, taking the position that the Claimant, by clearing land, increased the amount of debris and the amount of water runoff.

In St. Louis Railroad Co. v. Clauch (1891), 41 Ill. App. 592, the facts were similar to the case at bar. The railroad was built across the natural ditch and culverts were placed under the railroad. The railroad failed to keep the culvert cleaned out and plaintiff’s land was flooded. The court held that to. maintain such an obstruction was a violation of public duty by the railroad and an invasion of private rights, creating liability for damages "to persons injured thereby.

The statement in the condemnation proceedings in the U.S. District Court, that the United States would properly connect file drains wherever the same were cut by the canal and carry them under the canal and give them a proper outlet on the south side thereof so that after the completion of the canal, the lands would be as thoroughly drained as they were at the present time is a promise to the landowner. A promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future. American Law Institute, Restatement of Contracts, Section 2. A promise or covenant to maintain tile and drainage running from one landowner to another is a covenant running with the land that runs to the successors in title of both the dominant and servient land. Sterling Hydraulic Co. v. Williams (1872), 66 Ill. 393; Dorsey v. St. Louis A. & T.H.R. Co. (1871), 58 Ill. 65.

The State of Illinois succeeded to the United States government’s duty to maintain drainage through the canal. The right to drainage ran to the successive owners of the dominant land. The drainage was not maintained so that crops could be grown in a large portion of the Claimants’ field during the normal crop production time of the year. The State of Illinois in cross-examination brought out that Claimant had removed some trees on the higher ground to the north in the natural drainage area. The State provided no witness to testify that the runoff water was increased or that soil erosion was increased by the land clearing. Their contention is rejected. The Claimant testified that where the trees were cleared, that the land was relatively flat and that grass had been planted for permanent pasture on the cleared land, which would actually reduce erosion and the amount of runoff water. The Claimant further presented evidence that no trees were cut or removed on any slopes that would accelerate erosion.

It is found that in 1975 eleven acres of farm land was rendered unuseable for crop production at a fair rental value of $100 per acre, or $1,100. The loss of use of crop land for 1976 and 1977 was 21.9 acres at a fair rental value of $125 per acre, or $2,737.50. It is found that the fair rental value of the total acres rendered unuseable for the years 1975,1976 and 1977 had a total fair rental value of $3,837.50.

Claimants have proved damages in the amount of $3,837.50 arising from the State’s negligent maintenance of its drainage facilities under and bordering the Illinois-Mississippi Canal adjacent to Claimants’ property.

Claimants are hereby awarded damages in the sum of Three Thousand Eight Hundred Thirty-Seven and 50/100 ($3,837.50) Dollars.


text:
    (No. 77-CC-2348
    Robert A. Williams Construction Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed July 28, 1980.

    Londrigan & Potter, P. C., for Claimant.
   Roe, C. J.

This matter coming on to be heard upon the motion of Respondent to dismiss the claim herein, and, it appearing to the Court that Claimant has received due and timely notice of said motion, and, the court being fully advised in the premises;

The Court hereby finds:

1. That Public Act No. 79-1207 approved June 2, 1976, establishes that the 1974 State Fair Agency expended funds in excess of their appropriation.

2. That Article VIII, Section 2(b) of the Constitution of the State of Illinois 1970 states that:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

3. That Illinois Revised Statutes 1977, ch. 127, par. 166 states:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

4. That the Illinois General Assembly was aware of this deficit spending by the State Fair Agency and on June 2, 1976, approved Public Act 1207 to pay vendors who “for many months have remained unpaid for goods and services furnished in good faith without such vendors being aware that sufficient moneys were not available to pay their just debts at the time goods and services were furnished.”

5. That Claimant, Robert A. Williams Construction Company, Inc., is not mentioned in Public Act 1207.

6. That this contract is void under Ill. Rev. Stat., ch. 127, par. 166; that only the General Assembly may make appropriations for expenditures by the State.

Wherefore, it is hereby ordered that this claim be and the same hereby is dismissed with prejudice.


text:
    (No. 78-CC-0138
    Marshall Davis, Claimant, v. The State of Illinois, Respondent.

      Order filed October 1, 1980.

    Arthur L. Pollman and George Mruges, for Claimant.
   Holderman, J.

This claim coming on to be heard pursuant to the stipulation to dismiss of the parties hereto, and the court being fully advised in the premises;

The court finds: That this claim is based on an accident on February 1, 1977, wherein Claimant alleges damages totaling $100,000.00 as and for injuries and property damage.

That the Claimant has agreed to accept the sum of $5,000.00 as and for a full, complete and final settlement of all claims against Respondent, State of Illinois.

It is hereby ordered that the sum of $5,000.00 (five thousand dollars and no cents) be and is hereby awarded to Claimant, Marshall G. Davis in full satisfaction of any and all claims presented to the State of Illinois in the above captioned cause.


text:
    (No. 78-CC-0381
    Nagel Excavating, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed December 9, 1980.

    Farrell, Edgerton & Hatfield (Michael P. Edgerton, of counsel), for Claimant.
   Poch, J.

This matter coming to be heard pursuant to the joint stipulation of the parties hereto, and the court being fully advised in the premises;

The court finds: That this claim is based upon services rendered in 1976 on the Silver Springs State Park project (CDB Project No. 102-220-012“D”) wherein Claimant alleges damages amounting to $4,931.70;

That the Claimant has agreed to accept the sum of $4,000.00 as and for a full, complete and final settlement of all claims against the Respondent, State of Illinois.

It is hereby ordered that the sum of $4,000.00 (four thousand dollars and no cents) be and is hereby awarded to Claimant, Nagel Excavating, Inc., in full satisfaction of any and all claims presented to the State of Illinois in the above captioned cause.


text:
    (No. 78-CC-0428
    Frances H. Herder, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 18, 1981.

    Frances H. Herder, pro se, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim involves section 6 of Article XXXIII of Collective Bargaining Agreement, RC-14 effective July 1, 1977, to June 30,1979, which reads, in part, as follows:

“Effective December 1, 1976, any bargaining unit employee in step 5 or 6 with 12 or more months creditable service as that term is defined in the Pay Plan, shall be advanced to the next higher step and the employee shall be given new creditable service date of 12/1/76.”

Claimant is claiming back pay for a one step differential for hours worked prior to July 1, 1977, and for which remuneration has already been received at the lower step pay schedule.

The problem arises in that the provision in question (section 6 of Article XXXIII of RC-14) calls for a December 1976 effective date for the advancement of the employee to the next higher step. This move would presumptively, at least, infer that the employee should also be given a one step raise effective December 1, 1976. The problem with this presumption is that the RC-14 contract became effective on July 1, 1977, and to go back to December 1, 1976, for a pay increase would be providing employees with retroactive pay increases contrary to paragraph 145 of chapter 127, which reads, in part, as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, 0 0 0 shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid * * * which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.” (Emphasis added)

It should be noted that one of the exceptions to the retroactive back pay prohibition of paragraph 145 has to do with increase in salary “based on the effective date of the Collective Bargaining Agreements”.

Section 6 of the Collective Bargaining Agreement reads contrary to the prohibition contained in paragraph 145 of chapter 127, inasmuch as any attempt to provide for retroactive salary prior to the effective date of the Collective Bargaining Agreement would violate the prohibition.

Therefore, any claim for back pay prior to July 1, 1977, is contrary to law, and this portion of the contract, insofar as any back salary is concerned, is null and void and this claim is denied.