text:
    (No. 58097.
    JAMES FOUTCH, Appellee, v. RAYMOND O’BRYANT et al., Appellants.

      Opinion filed January 20, 1984.

      Stansell, Critser & Whitman, of Monmouth (Richard L. Whitman, Sr., of counsel), for appellants.
    No appearance for appellee.
   JUSTICE WARD

delivered the opinion of the court:

James Foutch filed a complaint on February 7, 1979, in the circuit court of Knox County to recover for services performed and to impose a mechanic’s lien on real estate of the defendants. Raymond O’Bryant and Terry Hainline, the defendants, filed an answer on March 14, 1979, denying the allegations in the complaint. On March 12, 1982, the cause was called for trial, but the defendants did not appear. An ex parte hearing was held, and the court entered judgment for the plaintiff in the amount of $3,119.80 on March 29, 1982. On April 23, 1982, the defendants filed a motion to vacate the judgment order which was denied on May 17, 1982, by the trial court. The appellate court, in a Rule 23 order (87 Ill. 2d R. 23) affirmed the circuit court. (110 Ill. App. 3d 1205.) We granted the defendants petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315). Plaintiff did not file a brief in this court.

After defendants had filed their answer, the trial court scheduled a docket call for December 11, 1981, at which time cases on the docket would be assigned trial dates. On December 11 a trial date for this cause was set for March 12, 1982. The defendants claim that they never received notice of the December 11, 1981 docket call or notice that trial was set for March 12, 1982. The defendants claim that they learned of the March 29, 1982, ex parte judgment only through a credit bureau publication.

The defendants filed a motion to vacate the March 29, 1982, judgment order within 30 days of the date of judgment under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 50(5)), which now is section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e)). That section provides that a court has discretion to vacate a judgment on a motion filed within 30 days of the entering of the judgment. At the hearing on May 10, 1982, on the motion to vacate, both plaintiff and defendants were represented by counsel, arguments were made, and it seems from the court’s order of denial that evidence was presented. We say that it seems so because there was no court reporter present and there is no transcript of evidence or any report of proceedings. The trial court’s denial of the motion to vacate did not state specific grounds for the denial.

The appellate court, in affirming the trial court, stated, inter alia, that since there was no record to show the reasons given by the trial court for denying the motion to vacate, the appellate court had to presume that the trial court acted in conformity with the law and ruled properly after considering the motion. The appellate court’s affirmance was proper. From the very "nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by the appellant.

As was pointed out in Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 454, an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Block & Co. v. Storm Printing Co. (1976), 40 Ill. App. 3d 92, 96; Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 452.) As there is no transcript of the hearing on the motion to vacate here, there is no basis for holding that the trial court abused discretion in denying the motion. Libco Corp. v. Roland (1981), 99 Ill. App. 3d 1140.

Our Rule 323(a), in describing the report of proceedings, states that it “may include evidence, oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the party submitting it desires to have incorporated in the record on appeal:” (87 Ill. 2d R. 323(a).) There was no report of proceedings filed. Nor is there a bystander’s report which is authorized under Rule 323(c) (87 Ill. 2d R. 323(c)), nor an agreed statement of facts filed by the appellant which is authorized by Rule 323(d) (87 Ill. 2d R. 323(d)). All that appears before us is the complaint, an answer of the defendant which simply denies some allegations of the complaint and admits others, the judgment order of March 29, 1982, the motion of the defendant to vacate the judgment of April 23, 1982, and the order of May 17,1982, denying the motion to vacate.

The appellate court’s opinion made reference to an affidavit of a deputy of the circuit court clerk’s office stating that the defendants had not been sent notice of the setting of the trial date, but the affidavit was not in the materials before us. We did secure the affidavit, attached to a motion by the appellant to strike portions of the appellee’s brief, from the appellate court clerk’s office. (The appellee’s brief had stated that the matter had been set on December 10, 1981, for a pretrial conference and that evidence presented at the hearing on the motion to vacate on May 10, 1982, showed the order had been mailed to counsel of record. The materials obtained from the appellate court clerk’s office showed that this motion to strike had been taken with the case. No final disposition of the motion is shown, however.) The affidavit of Shirley Carpenter, the deputy, in part stated that neither she nor any other member of the clerk’s office sent counsel for the defendants a copy of an order setting the case for trial on March 12, 1982. The affidavit further stated that the affiant had “no recollection of giving sworn testimony at [the] hearing” in May 1982. However, the appellant’s motion to strike a portion of the appellee’s brief, after pointing out that the affidavit states that Shirley Carpenter did not testify, says that she “only made off the record statements to the court.” It thus appears that there were statements made by the deputy clerk to the trial court at the time of the hearing on the motion to vacate. What they were is unknown. The materials obtained from the appellate court clerk’s office include an affidavit provided by the trial judge stating that he did not have any “independent recollection of the specifics of what was said at the hearing, nor do I recall any sworn testimony being offered.”

The order of the trial court, which denied the motion to vacate the judgment, notes that counsel for the parties were present and that the court “having heard the evidence, adduced the arguments of counsel and now being fully advised in the premises, finds: (1) That the defendants’ motion should not be granted.” It must be presumed that the denial of the motion was in conformity with the law and was properly supported by evidence. In Skaggs v. Junis (1963), 28 Ill. 2d 199, the plaintiff complained because the record failed to disclose the evidence heard by the trial court in support of an award made by the court. The plaintiff contended that it must be assumed that none was heard and that the award was, therefore, improper. In rejecting the contention, this court held: “The court stated that its order was based upon ‘the Court having heard the evidence and the arguments of counsel and being fully advised in the premises.’ In such a situation, unless there is a contrary indication in the order or in the record, it is presumed that the court heard adequate evidence to support the decision that was rendered. (Smith v. Smith, 36 Ill. App. 2d 55.) Where it is alleged that the evidence presented was actually insufficient to support the court’s finding, the burden of preserving said evidence rests with the party who appeals from said order. No record of the evidence heard on May 23 and 24 regarding the commission’s claim is before this court and, therefore, it must be assumed that the evidence that was heard fully supported the court’s finding that the commission was entitled to $3,989.40.” (28 Ill. 2d 199, 201-02.) The holding in Skaggs applies here.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 58247.
    AULER LAW OFFICES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Dennis R. McKee, Appellee).

      Opinion filed January 20, 1984.

      Moore & Associates, of Champaign, for appellant.
    Charles W. Hendrix, of Champaign, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

An arbitrator for the Industrial Commission denied the workers’ compensation claim of Dennis R. McKee, finding that he failed to establish that an automobile collision in which he was injured in the course of his employment was the cause of a hiatus hernia for which he sought compensation. The Industrial Commission affirmed the decision of the arbitrator and adopted it as its own. On certiorari, the circuit court of Champaign County, in a carefully prepared opinion explaining its reasoning, found the decision of the Commission to be against the manifest weight of the evidence and reversed it and remanded for computation of an award. The view expressed by the circuit judge was that the Industrial Commission found that McKee was injured in the accident and, because the only medical evidence was that he suffered a hiatus hernia or aggravated an existing one as a result of the trauma, there was no factual question for the Commission to resolve. The employer, Auler Law Offices, has appealed that decision, and the award which was subsequently entered by the Commission and confirmed by the circuit court.

To be resolved in this appeal is whether the original decision of the Commission that the employee failed to prove a causal connection between his hiatus hernia and the automobile accident was against the manifest weight of the evidence.

The automobile which McKee was driving in the course of his employment as an investigator for the Auler Law Offices was struck in the rear by a bus. At the time McKee’s car was standing still; the bus was moving at no more than five miles per hour. Although McKee testified that the impact threw him forward so that his chest struck the steering wheel, he told the bus driver at the accident scene that he was not hurt. Neither vehicle was damaged, and the accident was not immediately reported to the police.

That evening, while attending a party, McKee became dizzy and nauseated. Later he complained of a funny taste in his mouth and became unconscious for a few seconds. Approximately six hours after the accident, McKee was taken to a hospital emergency room by his - employer, attorney Robert Auler. He was examined there, but not treated because Mr. Auler got into a dispute with one of the doctors. The hospital records, which were in evidence, did not indicate that this examination disclosed a hiatus hernia.

Approximately two weeks after the accident, McKee was examined at a clinic and diagnosed as having a moderate sized hiatus hernia. He did not seek further treatment until three or four months later when he consulted Dr. Victor Wojnar, who at the time was treating McKee for a racquet ball injury. Approximately seven months after the accident, McKee entered a hospital where Dr. Wojnar performed a surgical procedure to repair his hiatus hernia. McKee did not return to work for approximately five months.

Although the employer emphasizes that McKee told the bus driver immediately after the accident that he was not injured, McKee insists his chest struck the steering wheel, and he responded as he did to the bus driver because he did not realize at the time that he had been seriously injured. The Industrial Commission, as the circuit judge pointed out, found that McKee was injured in the accident. The question, however, is the nature of the injury McKee sustained — specifically, whether the accident caused a hiatus hernia or aggravated a hiatus hernia from which McKee was already suffering. The employer challenged the medical testimony and argued that it was impeached by Dr. Wojnar’s inconsistent earlier statements as well as weakened by his own testimony. This is why it became necessary for the Commission to evaluate the medical testimony and decide how much credence to give it.

Dr. Wojnar, McKee’s only medical witness, testified that if he had a hiatus hernia before the accident it might have been aggravated by the trauma, and that if he did not have the hiatus hernia before the accident it could have been caused by the trauma. Dr. Wojnar’s opinion was not disputed by any other medical testimony. He gave a reason for his opinion that an injury could cause a hiatal hernia, but stated that he did not know whether that opinion was shared by his colleagues because medical textbooks do not cite trauma as a leading cause of hiatus hernia. Rather, they recite as the leading cause an anatomical variation in the construction of the hiatal ring which would be congenital in nature.

McKee was covered by a group health policy issued by Prudential Life Insurance Company which did not cover work-related claims. After consulting with Dr. Wojnar, McKee submitted a claim to Prudential under his group health coverage for the disability resulting from his hiatus hernia in which he stated that his claim was not due to an injury and that his condition did not arise out of his employment. At the same time Dr. Wojnar submitted an attending physician’s statement to Prudential in which he stated that McKee’s hiatus hernia was not “due to injury or sickness arising out of patient’s employment.” McKee signed this form authorizing the carrier to pay benefits to Dr. Wojnar and his signature appears to have been affixed almost two weeks after Dr. Wojnar signed the form.

The statements which the claimant and his treating physician forwarded to Prudential provided a foundation for the Commission’s finding that McKee failed to prove a causal connection between his hiatus hernia and his accident. (Mechanic’s Universal Joint Division, Borg-Warner Corp. v. Industrial Com. (1961), 23 Ill. 2d 441, 445; Allis Chalmers Manufacturing Co. v. Industrial Com. (1961), 23 Ill. 2d 497, 501; see also Caterpillar Tractor Co. v. Industrial Com. (1980), 83 Ill. 2d 213, 217; Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 443.) “Obviously statements in formal written documents cannot be tendered at face value for the purpose of obtaining benefits, and then lightly explained away when they stand in the way of claims for other benefits of an inconsistent nature.” (United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407, 413-14.) Although McKee has attempted to explain the circumstances under which those statements were signed and transmitted to Prudential, it was for the Industrial Commission to decide how much reliance to place upon those explanations, how those statements affected the credibility of the witnesses on which McKee relied, and whether to attach greater weight to the evidence offered by McKee to show causation or to the earlier statements of both McKee and Dr. Wojnar that the hiatus hernia was not the result of an injury and did not arise out of his employment. It is obvious that these earlier statements undercut McKee's contention that the surgical procedure performed by Dr. Wojnar was necessitated by the injury he received in the accident. Aiding the Commission in its decision was Dr. Wojnar’s qualification of his own medical testimony as to causation by his admission that he was not certain that his opinion that trauma could cause a hiatus hernia was shared by the medical community at large.

We recently said that a decision by the Commission can be set aside “only if its findings of fact are against the manifest weight of the evidence [citation] or its decision is contrary to law.” (Courson v. Industrial Com. (1983), 98 Ill. 2d 1, 9.) We have also noted that “it is axiomatic that this court will not disregard or reject permissible inferences drawn by the Commission merely because other inferences might be drawn, nor will we substitute our judgment for that of the Commission unless its findings are against the manifest weight of the evidence.” (Castaneda v. Industrial Com. (1983), 97 Ill. 2d 338, 341.) The Industrial Commission has the responsibility of determining “the credibility of the witnesses and the weight to be given their testimony.” (Campbell v. Industrial Com. (1983), 99 Ill. 2d 210, 218.) Finally, we recently stated that “[t]he resolution of whether there is a causal connection between the claimant’s injuries and the employment is uniquely within the province of the Industrial Commission.” (Domagalski v. Industrial Com. (1983), 97 Ill. 2d 228, 236.) Based on these elemental principles applicable to judicial review of decisions of the Industrial Commission, we conclude that the original decision of the Commission denying benefits to McKee was not against the manifest weight of the evidence and should have been confirmed by the circuit court. We reverse that court and direct the reinstatement of the Commission’s initial decision.

Judgment reversed.


author: CHIEF JUSTICE RYAN

text:
    (No. 58332.
    DENNIS BERRY, Appellee, v. THE INDUSTRIAL COMMISSION et al., (A.O. Smith Corporation, Appellant).

      Opinion filed January 20, 1984.

      Eric Robertson and Edward C. Fitzhenry, Jr., of Lueders, Robertson & Konzen, of Granite City, for appellant.
    Andrew T. Nalefski, of Lakin & Herndon, P.C., of East Alton, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

In this workers’ compensation case, an arbitrator found that claimant, Dennis Berry, suffered accidental injuries while employed by the A.O. Smith Corporation and awarded him medical payments, a sum representing 44 weeks of temporary total disability, and compensation for permanent loss of 5% of the man under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). On review, without taking additional evidence, the Industrial Commission reversed the arbitrator’s award, finding that the claimant had failed to prove that the accident caused any temporary or permanent disability, or need for medical care. The circuit court of Madison County set aside the Commission’s decision as against the manifest weight of the evidence and ordered that the claimant “have judgment against the [employer] in the amounts stated in the arbitrator’s decision, together with all taxable interest, costs and fees.” The employer appealed under our Rule 302(a) (87 Ill. 2d R. 302(a)).

The claimant was involved in an automobile accident in September 1978. In that accident he suffered injuries to his back. He received treatment for those back injuries from Dr. Robert Bolton and had consulted Dr. Bolton for those injuries as late as November 21, 1979. Claimant had obtained pain pills for those problems from the employer’s dispensary" on December 13, 1979, approximately three weeks before his industrial accident.

The claimant testified that on January 2, 1980, while at work, he felt a “pop” and pain in his back after lifting one of the 28-pound bars which he routinely lifted on his job. He received pain pills for this from the employer’s dispensary on the day of the accident. The employer’s operation shut down at the close of work that day and did not reopen. The claimant consulted his physician, Dr. Bolton, on January 4, 1980. Dr. Bolton testified that on that date, the claimant complained that the weather was aggravating his back, however, claimant denied making such a statement. The claimant also denied that his back problems before the industrial accident included his lower back.

Dr. Bolton testified, however, that the lower back was injured by the automobile accident. Dr. Bolton recalled finding muscle spasms in the lumbar-spine area during the January 4, 1980, consultation, but conceded that this finding was not noted on claimant’s chart despite his custom of noting significant, objective findings, such as spasms. He did not X ray claimant’s lumbar spine until February 1, 1980. Dr. Bolton stated it was his considered medical opinion that the industrial accident could have aggravated the preexisting injury, rendering the claimant unable to work. He also was of the opinion that the industrial accident would be a cause of permanent injury, osteoarthritis, in the “distant future.” He conceded that there were no objective findings to support this conclusion. He admitted that he had previously, before the industrial accident, predicted that claimant would in the future suffer from osteoarthritis as a result of the automobile accident.

Dr. Charles I. Mannis testified for the employer based upon his single examination of the claimant on April 12, 1980. He found no muscle spasms. Dr. Mannis took an X ray of claimant’s back which revealed a congenital deformity of the lumbar spine. He found no reason to limit the claimant’s work. Dr. Mannis testified that the prior back injuries could be the cause of the post-January 2, 1980, pain complained of by the claimant. He conceded that the industrial accident might also be a cause. It was Dr. Mannis’ opinion that there was no objective evidence to support an opinion that claimant suffered a permanent injury.

In its order setting aside the decision of the Commission, the circuit court commented that the arbitrator was in a significantly better position to view witnesses, to weigh the testimony, and to determine the weight to be given to the evidence than was the Commission. This comment ignores the fact that it is the peculiar province of the Industrial Commission to determine the credibility of witnesses, to weigh the testimony, and to determine the weight to be given to the evidence. Regardless of whether or not the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. Seiber v. Industrial Com. (1980), 82 Ill. 2d 87, 97; Orr v. Industrial Com. (1970), 47 Ill. 2d 242, 243.

Claimant argues that there is in fact no testimony contradicting Dr. Bolton’s statement that the industrial accident aggravated claimant’s preexisting back condition. It is his contention that Dr. Mannis’ testimony does not contradict this opinion. Therefore, since the evidence on this issue is uncontradicted, claimant argues, the decision of the Commission must be set aside. We do not view the evidence in this light. Dr. Mannis testified that the automobile accident may have caused the problems which claimant now complains of. Also, Dr. Mannis found no reason to limit the claimant’s work. In addition to this contradictory testimony, there were several matters relating to claimant’s and Dr. Bolton’s testimony that could be viewed by the Commission as detracting from its credibility. The Commission made specific findings of fact. Its findings as to Dr. Bolton’s testimony highlight the parts of that testimony which cast doubts on the conclusions the doctor reached. As to Dr. Bolton’s testimony, the Commission found:

“Petitioner testified that on January 4, 1980 he saw Dr. Bolton, who had previously treated him for back injuries sustained in a car accident. Although Dr. Bolton testified he found muscle spasm on January 4, he had no written record of any findings on that date, and although he said it was his custom to note any significant changes or findings or problems in his records, he did not record any results for straight leg raising, reflex, neurological, and sensory tests, because they were negative. On January 4, 1980 Dr. Bolton only took x-rays of Petitioner’s thoracic spine, which was one of the areas involved in the earlier auto accident, and treated Petitioner for scoliosis. He did not take x-rays of the lumbar spine, which Petitioner claims he injured, until February 1. Dr. Bolton also said he performed no neurological examinations of Petitioner subsequent to January 4, 1980, and his records contained no notations of changes or problems found in his monthly reevaluation examinations, and while he testified that Petitioner had been and remained unable to work, and had sustained permanent disability because in 10 years he would develop osteoarthritis, he had no objective findings to support these conclusions. Based on the above, the Commission finds Dr. Bolton’s records show no change in Petitioner’s preexisting back conditions as a result of the accident on January 2,1980.”

Resolving conflicts in the evidence, drawing inferences from the testimony, and determining the credibility of witnesses and the weight to be given their testimony are matters within the province of the Industrial Commission. The Commission is entitled to draw reasonable inferences from both direct, and circumstantial, evidence. A court will not disregard those permissible inferences merely because other inferences might have been drawn. (Long v. Industrial Com. (1979), 76 Ill. 2d 561.) In Long, this court stated:

“Cases involving aggravation of a preexisting condition concern primarily medical questions and not legal ones. Therefore, a finding of fact by the Commission on this issue, based on any medical testimony or on inferences to be drawn from medical testimony, should be given substantial deference because of the expertise acquired by the Commission in this area. (See 1 A. Larson, Workmen’s Compensation sec. 12.20, at 3-316 to 3-329 (1978).)” Long v. Industrial Com. (1979), 76 Ill. 2d 561, 565-66.

We conclude that the evidence and the legitimate inferences that can be drawn from the evidence support the decision of the Industrial Commission, and that its decision is not contrary to the manifest weight of the evidence. The circuit court erred in setting aside the decision of the Industrial Commission. We therefore reverse the judgment of the circuit court of Madison County.

Judgment reversed.


author: JUSTICE CLARK

text:
    (No. 59336.
    EDWARD J. ROSEWELL, Appellee, v. CHICAGO TITLE AND TRUST COMPANY et al., Appellants.

      Opinion filed January 20, 1984.

      Maurice P. Raizes, of Cohon, Raizes & Regal, of Chicago, for appellant Chicago Title and Trust Company.
    Marshall Patner, of Orlikoff & Patner, of Chicago, for appellant Frederick Blum.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Henry A. Hauser, Thomas J. McNulty, and Patrick J. McNerney, Assistant State’s Attorney, of counsel), for appellee.
    Arnold M. Flamm, of Chicago, for amicus curiae Aggressive Investors, Inc.
   JUSTICE CLARK

delivered the opinion of the court:

On November 4, 1983, appellee, Edward Rosewell, treasurer and collector of Cook County, filed an application in the circuit court of Cook County seeking an order of judgment and sale against approximately 121,000 parcels of real estate which had been returned delinquent for the nonpayment of 1982 real estate taxes. This action was taken in accordance with section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 716). On November 10, 1983, appellant Chicago Title and Trust Company filed an objection to the application on. the grounds that the proposed tax sale violated the due process clause of the United States Constitution (U.S. Const., amend. XIV (the State may not deprive any person of life, liberty or property without due process of law)) and the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). On November 16, 1983, taxpayer Frederick Blum filed an objection on the same grounds as Chicago Title and Trust, as well as the alleged violation of his constitutional rights pursuant to 42 U.S.C. sec. 1983 (1976). The circuit court granted Rosewell’s motion to dismiss and entered an order on November 18, 1983, permitting the tax sale to take place. We granted appellants’ motion for direct appeal pursuant to Rule 302(b) (87 Ill. 2d R. 302(b)) and stayed enforcement of the circuit court’s order pending the outcome of the expedited hearing before this court.

This appeal requires us to answer the question whether due process requires the county collector to give personal notice of an impending tax sale to all parties with an interest in the real estate. The tax sale procedure under scrutiny is a mechanism for the county to collect delinquent real estate taxes after conventional means of collecting the tax have failed. In Illinois, real estate taxes become a prior lien against the land on January 1 of each year. (Ill. Rev. Stat. 1981, ch. 120, par. 697.) The assessee receives notice by mail of the tax liability on an annual basis. Individuals who do not pay their annual real estate taxes are notified of the impending tax sale by certified mail at least 15 days before the application for judgment is to be filed with the circuit court. (Ill. Rev. Stat. 1981, ch. 120, pars. 706, 711.) The collector is also required to publish notice of an intent to file the application in a newspaper at least 10 days before the application is filed with the circuit court.

If the trial court grants the collector’s application, the delinquent property is offered for sale at a public auction. A certificate of sale for each delinquent parcel of real estate is awarded to each successful bidder. The successful bidder is thé party who is willing to pay the delinquent tax and accept the lowest penalty rate below 18%. (Ill. Rev. Stat. 1981, ch. 120, par. 726.) The owner of the property, or other interested party, may still redeem the property within two years of the tax sale by paying the delinquent tax plus a penalty, interest, and costs.

The tax buyer must file a petition for tax deed in the circuit court no more than five months nor less than three months before the redemption period expires. At this time, the tax buyer must serve notice upon all owners, occupants and parties interested in the real estate. The Revenue Act of 1939 requires personal notice by the sheriff, certified mail and three publications in a newspaper. (Ill. Rev. Stat. 1981, ch. 120, par. 744.) It is crucial to note that this notice differs from the notice provided before the tax sale. The Illinois statute requires that notice by mail must be given only to the party against whom the property taxes were assessed before the tax sale. Notice by publication is provided for all other interested parties.

If the redemption period expires without a response from parties interested in the real estate, the tax buyer may apply for a deed to the property after proving compliance with statutory service requirements. (Ill. Rev. Stat. 1981, ch. 120, par. 747.) The end result of such proceedings strikes many as harsh because the tax buyer can gain title to the real estate for a fraction of its value. However, this process has been upheld in light of the State’s compelling interest in collecting taxes. (Balthazar v. Mari, Ltd. (N.D. Ill. 1969), 301 F. Supp. 103, affd (1969), 396 U.S. 114, 24 L. Ed. 2d 307, 90 S. Ct. 397; Catoor v. Blair (N.D. Ill. 1973), 358 F. Supp. 815, affd (1973), 414 U.S. 990, 38 L. Ed. 2d 231, 94 S. Ct. 345.) The tax buyer also takes a certain risk each time he or she bids on a parcel of land at a tax sale. The tax buyer must pay the delinquent taxes and can only recover his or her investment by the owner redeeming and paying the tax buyer the delinquent amount plus the penalty, interest, and costs, or by selling the property after the redemption period has expired.

Constitutional standards of due process were delineated by the United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314-15, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information *** But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.”

Originally, different standards of due process applied to in personam and in rem actions (Pennoyer v. Neff (1878), 95 U.S. 714, 24 L. Ed. 565), but this distinction was abolished by Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569. Now, due process requires that the Mullane standard be applied to both in personam and in rem proceedings.

The most important criterion in the area of procedural due process is “reasonableness.” The State must act reasonably before depriving a person of a property interest, but burdensome or elaborate efforts to notify interested parties are not constitutionally required. (See Walker v. City of Hutchinson (1956), 352 U.S. 112, 1 L. Ed. 2d 178, 77 S. Ct. 200; Greene v. Lindsey (1982), 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874; see also Note, Due Process in Tax Sales in New York: The Insufficiency of Notice by Publication, 25 Syracuse L. Rev. 769 (1974).) Indeed, Justice John Marshall stated that, “it is the part of common prudence for all those who have any interest in [property], to guard that interest by persons who are in a situation to protect it.” The Mary (1815), 13 U.S. (9 Cranch) 126, 144, 3 L. Ed. 678, 684.

The basic contention projected in this appeal is that mortgagees and other interested parties should be given the same notice as assessees before a tax sale takes place. The current Illinois statute provides for notice by mail to the assessee before the tax sale. We find this statutory provision entirely consistent with the due process standards in Mullane and its progeny. The name and address of the party against whom the taxes were last assessed is readily available in the county tax records; the addresses of all mortgagees, lienholders and other interested parties can only be ascertained by costly and time-consuming title searches on the 121,000 delinquent parcels of land. At the present time, this expense is borne by the tax: buyer who must comply with stringent statutory notice requirements before the end of the redemption period. It is true that the mortgagee has to pay a penalty to redeem the property after the tax sale, but such a penalty is fair and reasonable when dealing with a party that has neglected to ensure that the mortgagor has paid the taxes when due. For example, the Internal Revenue Service does not provide notice to taxpayers before assessing a penalty. It is a matter of public knowledge that all wage earners must file a tax return.

Similarly, Illinois permits mortgagees to avoid forfeiture by providing an opportunity to pay the delinquent property taxes plus a percentage penalty. In Mullane, the court noted, “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 318, 94 L. Ed. 865, 875, 70 S. Ct. 652, 659.) In the case at bar, the names and addresses of mortgagees are not readily at hand, but can only be gleaned from a paper mountain by 121,000 title searches. Even if the costs of a title search were passed onto the “consumer,” the collector would be faced with a chaotic situation, with tax sales delayed by at least six months while all the title searches were analyzed.

The Supreme Court underscored this consideration when it noted:

“We do not suggest, however, that a governmental body is required to undertake extraordinary efforts to discover the identity and whereabouts of a mortgagee whose identity is not in the public record.” Mennonite Board of Missions v. Adams (1983), 462 U.S. _, _ n.4, 77 L. Ed. 2d 180, 187 n.4, 103 S. Ct. 2706, 2711 n.4.

We contrast this with the minimum amount of effort that it would take the mortgagee to learn of the impending tax sale. The parcels that will be offered at the tax sale are listed by tax number in numerical order when published in the newspaper prior to the proposed sale. A mortgagee or lienholder with the remotest interest in a parcel of land could ascertain the tax delinquency in a few minutes. Indeed, it is usually only the negligent or disorganized mortgagee who learns of the tax sale during the redemption period. We conclude that the Revenue Act of 1939 is consistent with the due process criteria set down in Mullane and its progeny.

The appellants argue that Mennonite Board of Missions v. Adams (1983), 462 U.S _, 77 L. Ed. 2d 180, 103 S. Ct. 2706, provides good authority for overturning the Illinois statute. In Mennonite, the United States Supreme Court invalidated an Indiana statute that did not provide for notice by mail or personal service to mortgagees of property that had been sold for nonpayment of taxes. The Mennonite court noted that the Indiana statute “immediately and drastically diminished” the value of the mortgagee’s security interest. (462 U.S. _, _, 77 L. Ed. 2d 180, 187, 103 S. Ct. 2706, 2711.) We read Mennonite as a decision in line with Mullane and its vitality is limited to statutes such as Indiana’s that afford inadequate due process protection.

The Illinois statute is clearly distinguishable from the Indiana statute. First, the Indiana statute allowed the tax sale to take place without any judicial proceeding. In Illinois, a circuit court judge must order the tax sale after considering an application from the county collector and any objections from interested parties. In Illinois, there is no drastic diminution of the mortgagee’s security interest because taxes are a prior lien before and after the tax sale. Second, Indiana permitted the property to be sold to the highest bidder, an amount which could be greater than the amount of the delinquent taxes, whereas, in Illinois, the amount could not be greater than the delinquent taxes, plus interest, penalty and costs. Third, the Indiana statute granted a lien against the real property for the entire amount paid at the tax sale rather than the amount of the delinquent taxes. In Illinois, the amount of the lien is limited to the amount of the tax deficiency, plus interest, penalty and costs. Finally, Indiana permitted a deed to issue to the tax buyer automatically at the end of the redemption period, while Illinois requires a second judicial proceeding after all interested parties have received notice by mail. In Indiana, the property could be irrevocably lost without notice, a result that is impossible in Illinois. We also note that the Illinois statute has been affirmed by the United States Supreme Court on two occasions (Balthazar v. Mari, Ltd. (N.D. Ill. 1969), 301 F. Supp. 103, ajfd (1969), 396 U.S. 114, 24 L. Ed. 2d 307, 90 S. Ct. 397; Catoor v. Blair (N.B. Ill. 1973), 358 F. Supp. 815, aff'd (1973), 414 U.S. 990, 38 L. Ed. 2d 231, 94 S. Ct. 345.

We do not agree with defendant’s argument that cases decided subsequent to Mennonite erode the validity of the Illinois statute. The United States Supreme Court vacated three lower court decisions in light of Mennonite: First Pennsylvania Bank, N.A. v. Lancaster County Tax Claim Bureau (1983) (mem.), 463 U.S. _, 77 L. Ed. 2d 1381, 103 S. Ct. 3528, Russell Creek Land Co. v. Charjuan, Inc. (1983) (mem.), 463 U.S. _, 77 L. Ed. 2d 1382, 103 S. Ct. 3529-30, and Continental Insurance Co. v. Moseley (1983) (mem.), 463 U.S. _, 77 L. Ed. 2d 1383, 103 S. Ct. 3530. However, careful - examination of the statutes construed in these cases reveals that they are substantially deficient in due process protection under Mullane as well as Mennonite. For example, Lancaster and Continental Insurance are based on statutes that provide for notice only by publication, a situation not remotely analogous to the case at bar. We are more persuaded by the decision of the Oregon Supreme Court in Grant County v. Guyer (1983), 296 Or. 14, 672 P.2d 702, which upheld the Oregon tax sale statute in light of Mennonite.

Mennonite does contain dieta that emphasizes the need for prompt notice to the mortgagee, but this dicta concedes that constructive notice is constitutionally sufficient if the mortgagee is not reasonably identifiable. (Emphasis added.) The court noted:

“When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Múlleme.” (Mennonite Board of Missions v. Adams (1983), 462 U.S. _, _, 77 L. Ed. 2d 180, 187, 103 S. Ct. 1706, 2711.)

As we have previously stated herein, notice by mail is given to the mortgagee prior to the expiration of the redemption period.

Although we can detect no due process infirmities with the Illinois statute, we are also mindful of the enormous public policy considerations underpinning the tax sale procedure. Tax revenues are literally the lifeblood of government. At no time since the great depression have the fiscal necessities of government at all levels and the need for dependable tax collections been greater than at present. Township of Montville v. Block 69 Lot 10 (1977), 74 N.J. 1, 31, 376 A.2d 909, 924 (Conford, J., dissenting): see also Comment, Notice by Publication: Walker v. City of Hutchinson, 24 U. Chi. L. Rev. 553 (1957); Note, The Constitutionality of Notice by Publication in Tax Sale Proceedings, 84 Yale L.J. 1505 (1975).

Since we have addressed the merits of this appeal, we have no occasion to address the issue of standing raised by appellant Blum. We therefore conclude that the notice provisions of the Revenue Act of 1939 are consistent with due process protection afforded by the United States Constitution and the Illinois Constitution. We now vacate the stay order granted pending the outcome of this appeal, and affirm the judgment of the circuit court of Cook County.

Judgment Affirmed.


text:
    (No. 57469.
    O. DUNAWAY et al., Appellants, v. THE DEPARTMENT OF LABOR et al., Appellees.

      Opinion filed February 1, 1984.

      Verticchio & Verticchio and J. W. Wenzel, of Gillespie, and G. William Horsley, of Springfield, for appellants.

      Neil F. Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellees Department of Labor et al.

    Glen H. Kanwit, of Chicago, and Charles R. Jelliffe, of Harrisburg, for appellee Sahara Coal Company, Inc.
   JUSTICE SIMON

delivered the opinion of the court:

Plaintiffs, 0. Dunaway et al., filed an action in the circuit court of Saline County for administrative review of a decision of the defendant Department of Labor, which found plaintiffs ineligible for unemployment compensation under section 604 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 434). The circuit court reversed the decision of the Department of Labor, and the appellate court reversed the circuit court (109 Ill. App. 3d 63). We granted the plaintiffs’ petition for leave to appeal to this court (87 Ill. 2d R. 315).

Plaintiffs, coal miners employed by defendant Sahara Coal Company in four locations in southern Illinois, belong to the Progressive Mine Workers of America (PMWA). Sahara is a member of an employers’ association known as the Coal Producers’ Association of Illinois (CPAI). Sahara and the PMWA were parties to a valid three-year collective bargaining agreement effective from April 10, 1975. On December 6, 1977, another union, the United Mine Workers of America (UMW), initiated a strike against a different group of employers, members of the Bituminous Coal Operators’ Association (BCOA). On December 6, UMW pickets appeared at the four Sahara facilities, and the plaintiffs did not cross their picket lines. A few PMWA members worked occasionally at the Sahara mines when no pickets were present, but after these individuals received threatening phone calls from UMW members, they did not return to work. There were no pickets on either December 20, 1977, or January 2, 1978, the days before and after the regularly scheduled Christmas shutdown. PMWA members worked those days and by doing so became eligible for holiday pay.

Although there were no incidents of violence at any of the Sahara facilities, a coal loading dock in Metropolis, 60 miles away, was stormed and blown up by UMW miners. Reports of violence appeared regularly in the local newspapers. Walter Lucas, vice-president of Sahara, testified that on the first day the UMW pickets showed up he told a newspaper reporter that the pickets prevented Sahara’s employees from going to work. He conceded there were enough pickets and automobiles to shut down Sahara’s mines. Roy Stevers, one of the claimants in this case, testified that when he told John Long, superintendent at one of the mines, that Sahara’s employees wanted to go back to work, Long replied that he was afraid the UMW men would come out and tear up the property and cause violence. Long said there wasn’t a whole lot he could do.

On March 7, 1978, after the President of the United States invoked the Taft-Hartley Act against the UMW strikers, the UMW pickets were withdrawn, and the PMWA workers returned to their jobs at the four Sahara facilities. During one brief period when pickets reappeared, PMWA members again did not work.

The PMWA contract is separately negotiated from the UMW contract. Many provisions of the two contracts differ, including wage scales and pension plans. Prior to the UMW strike, PMWA workers had received an automatic $2-per-day pay raise provided for by their existing contract so that they were earning $2 per day more than the UMW when the strike commenced. The PMWA contract contained a “most-favored-nation” clause which provided:

“During the term of this Contract should any competitive field make a contract covering wages or working conditions more favorable to either the Association or the Union signatory hereto, then this Contract shall be modified so that both sides may receive all the benefits of the more favorable contract.”

Prior to expiration of the PMWA contract, the PMWA bargained for a $2-per-day increase retroactive to the date of the UMW contract. This was equal to the increase obtained by the- UMW as a result of its strike, and meant that the PMWA workers earned $2 per day more than the UMW miners just as they had before the UMW strike. PMWA members testified at the arbitration hearing that they were unaware of the clause and did not know that they would benefit from the UMW strike. The PMWA local president testified that the $2 increase was not an automatic result of the new UMW contract, but was a negotiated concession won by the PMWA.

When the plaintiffs applied for unemployment compensation, Sahara took the position that they were unemployed due to a labor dispute and that they had left work at the Sahara facilities voluntarily and without good cause. The initial claims adjudicator found that plaintiffs were not ineligible for unemployment compensation under section 604, but the Director of Labor reversed this decision.

Section 604 provides:

“Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. *** This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute. (Emphasis added.) Ill. Rev. Stat. 1977, ch. 48, par. 434.

The basic issue in this case is whether there was a labor dispute at the Sahara facilities. Section 604 declares that individuals are ineligible for unemployment compensation only when there is a work stoppage due to a labor dispute at the appropriate factory, establishment, or other premises. Even though there may be a work stoppage, section 604 ineligibility does not apply unless there is also a labor dispute. The Department of Labor contends that the plaintiffs were also ineligible because they had a direct interest in the UMW labor dispute. The Director of Labor and the appellate court based their conclusions on the most-favored-nation clause in the PMWA contract; they viewed it as creating a direct interest because they construed it to mean that PMWA members had a legally enforceable right to receive the same benefits as the UMW. However, inasmuch as we conclude that no labor dispute existed at Sahara, we need not consider whether the plaintiffs were disqualified by a direct interest in a labor dispute or whether they failed to satisfy any of the other conditions which make section 604 inapplicable. Even if the favored-nation clause was the reason the plaintiffs received their $2-per-day increase after the UMW settlement was reached, this does not make them ineligible for benefits so long as there was no labor dispute at the Sahara mines.

Section 604 distinguishes between a work stoppage and a labor dispute. (Local No. 658, Boot & Shoe Workers Union v. Brown Shoe Co. (1949), 403 Ill. 484, 490.) That there was a work stoppage at the premises where the plaintiffs were employed, and that their unemployment was caused by that work stoppage, is clear. But section 604 does not permit us to stop there. It also requires a determination of whether the work stoppage was in turn caused by a labor dispute at the premises. It is essential to note that, in enacting section 604, the legislature directed that ineligibility under this section is triggered only in instances where there is both a work stoppage and a labor dispute; in addition, the situs of the labor dispute must be the factory, establishment, or other premises at which the claimants are employed. We conclude that neither of these requirements is satisfied by the evidence presented in this case.

The evidence fails to show the existence of a labor dispute at any of the four Sahara premises involved here. The only labor dispute was between the UMW and the BCOA. Both the district president of the PMWA and the Sahara vice-president testified that their respective organizations had no dispute with each other. How is it possible to have a dispute without disputants? Since neither of the disputants was located at a Sahara mine or facility, we do not see how a finding that a dispute was taking place between Sahara and its employees could be supported.

The Director of Labor found that the UMW picketing resulted in a total stoppage of work at Sahara, and thereby made Sahara a party to the labor dispute. In essence, this finding means that the labor dispute between the UMW and the BCOA was simultaneously located at the BCOA sites and at the Sahara sites as well. But the Director’s reasoning is faulty for it completely eliminates any distinction between work stoppages and labor disputes. The labor dispute involved in this case concerned only the UMW and the BCOA; thus, by refusing to cross the UMW picket lines, the PMWA members created a work stoppage, but not a labor dispute, at the Sahara sites or at any sites operated by the CPAI.

The policies behind the unemployment compensation statutes mandate this result. The purpose of unemployment compensation is to provide income to those who are involuntarily unemployed. (Shell Oil Co. v. Cummins (1955), 7 Ill. 2d 329.) While section 604 is designed to prevent payments to those who leave work voluntarily, the provision is crafted to preserve the State’s neutrality in labor disputes, i.e. to avoid financing one party to the dispute. (Local 7 — 641, Oil, Chemical & Atomic Workers International Union v. Department of Labor (1983), 96 Ill. 2d 94, 98-99; General Motors Corp. v. Bowling (1981), 85 Ill. 2d 539, 546-47.) The conditions contained within section 604 which render the section inapplicable are intended to avoid penalizing the innocent victims of labor disputes who are involuntarily unemployed. Outboard, Marine & Manufacturing Co. v. Gordon (1949), 403 Ill. 523, 534-35.

An amendment to section 604 enacted in 1975 and providing that failure to cross a picket line is not, in itself, participation in a labor dispute overturned previous decisions of this court holding persons who refused to cross picket lines ineligible for unemployment compensation. (See Local 7 — 641, Oil, Chemical & Atomic Workers International Union v. Department of Labor (1983), 96 Ill. 2d 94, 100; Owens-Illinois, Inc. v. Bowling (1983), 95 Ill. 2d 397, 401.) If State neutrality is not affected when workers honor another union’s picket line even when there is a labor dispute at their own work premises, then a fortiori neutrality is not affected when workers fail to cross a picket line relating to a labor dispute located entirely at other premises. Sahara’s workers stayed away from work because of the threat of violence if they crossed the picket line. A claimant need not experience actual bodily harm before he can refuse to cross a picket line; a reasonable fear of either actual or potential violence is sufficient. (Shell Oil Co. v. Cummins (1955), 7 Ill. 2d 329, 338-39.) The PMWA members here were innocent victims of a labor dispute at mines operated by BCOA members which did not even involve them.

This result is consistent with our cases. Sahara, and the Director of Labor, stress the broad definition of labor dispute found in Local 7 — 641, Oil, Chemical & Atomic Work ers International Union v. Department of Labor (1983), 96 Ill. 2d 94, 98, and in Local Union No. 11 v. Gordon (1947), 396 Ill. 293, 299, but that is beside the point. No party to this case disputes the fact that there was a labor dispute. The only questions which concern us here are where that dispute was located and who it involved.

In Local Union No. 11 v. Gordon (1947), 396 Ill. 293, 299, this court defined a labor dispute as “any controversy concerning wages, hours, working conditions or terms of employment,” By this definition, there was no labor dispute at the Sahara facilities since there was no controversy regarding any of these issues at Sahara. The Director of Labor relies heavily on American Brake Shoe Co. v. Annunzio (1950), 405 Ill. 44, in which employees at one division of a company refused to cross a picket line established by members of a different union who were employed at another of the employer’s divisions. Although this court held that there was a labor dispute in American Brake Shoe, that case is not controlling here. In American Brake Shoe at least one of of the disputants, the employer, was located at the picketed site.

The Director of Labor insists that if we do not find a labor dispute at Sahara on the facts of this case, the court will be imposing on the statute a requirement that disputants must be related as employer and employee. We do not agree that we would be rewriting the statute. It requires that there be a dispute at the site, and we construe this to mean that at least one of the disputants must be located at the site. In American Brake Shoe, this court held that, by honoring the picket line, the absent employees were either participating in the labor dispute or voluntarily remaining absent from work. (405 Ill. 2d 44, 50.) But, it was in response to American Brake Shoe and to similar cases (Sangamo Electric Co. v. Donnelly (1962), 26 Ill. 2d 348; Local Union No. 11 v. Gordon (1947), 396 Ill. 293) that the Elinois legislature in 1975 amended section 604 to provide that failure to cross a picket line could not, in itself, be considered as participating in a labor dispute. (Local 7 — 641 v. Department of Labor (1983), 96 Ill. 2d 94, 100.) The Director of Labor attempts to sidestep the legislature here and to accomplish in the name of “labor dispute” what he cannot do in the name of “participating.” While acknowledging that these employees are not participating in the dispute, the Director seeks to treat their failure to cross the picket lines as moving the site of the dispute to the Sahara facilities. This view is not viable, for it contradicts the legislative purpose of including those who are innocent victims of labor disputes among those who are considered involuntarily unemployed.

The Director and Sahara contend on appeal that even if the plaintiffs are not ineligible under section 604, that section requires that a separate hearing must still be held to determine whether they are eligible to receive benefits for each week under section 500(C) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 420(C); see Owens-Illinois, Inc. v. Bowling (1983), 95 Ill. 2d 397, 403.) The relevant portion of section 500 provides:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Director finds that:
* * *
C. He is able to work, and is available for work; provided that during the period in question he was actively seeking work.” Ill. Rev. Stat. 1977, ch. 48, par. 420(C).

There was only one hearing in this case. However, the initial claims adjudicator’s report which declared that the PMWA. employees were not ineligible under section 604 did not indicate they were ineligible under any other section. Sahara did not appeal this finding to the Director of Labor or to the courts. Owens-Illinois having been decided five years after the UMW strike was settled, the claims adjudicator and the representative of the Department of Labor could not have had notice of the additional procedures which would be required by this court in that case. Since the record already contains a finding as to both of Sahara’s charges, section 604 ineligibility and voluntarily leaving employment without good cause, we consider that it was not the legislative intent to require remandment for further hearings regarding eligibility in circumstances such as those here.

Since the evidence fails to establish that a labor dispute occurred at Sahara, we reverse the decision of the appellate court that the plaintiffs are ineligible for unemployment compensation under section 604.

Appellate court reversed, circuit court affirmed.


author: JUSTICE MORAN JUSTICE SIMON,

text:
    (No. 57813.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL TERRELL, Appellant.

      Opinion filed February 1, 1984.

      SIMON, GOLDENHERSH, and CLARK, JJ., dissenting.
    Robert Agostinelli, Deputy Defender, and Pamela Peters, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Michael B. Weinstein and David Bindi, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE MORAN

delivered the opinion of the court:

The defendant, Michael Terrell, was indicted by the grand jury of Kankakee County for the offenses of attempted armed robbery and unlawful use of a weapon. Charles Lott was charged, by the same indictment, with attempted armed robbery and possession of marijuana. The cases were severed for trial and Terrell waived his right to be tried by a jury. At the close of the State’s case in chief, the defendant moved for a directed verdict. The motion was taken under advisement and later denied. The record reveals that a written order was entered on December 28, 1981, finding defendant guilty only of attempted armed robbery, for which he was sentenced to two years’ probation. The appellate court, with one judge dissenting, affirmed the judgment. (110 Ill. App. 3d 1086.) We allowed defendant’s petition for leave to appeal (87 Ill. 2d R. 315(a)).

The sole issue raised on appeal is: Whether the evidence presented is sufficient to establish the essential elements of the offense of attempted armed robbery.

The evidence revealed that on August 7, 1980, at approximately 6:15 a.m., an anonymous telephone call was received by the Kankakee city police. The caller stated that two men, armed with guns, were hiding behind a service station. This report was dispatched and was responded to by Officer Whitehead in one patrol car, and Officers Pepin and Rokus, who were patrolling the area, in another car.

A diagram, entered into evidence, shows that the service station is located on the southwest corner of Er-zinger and Maple streets. The first building south of the station, facing Maple Street, is a construction company. Further south is a tool company. To the rear of the buildings is a large grassy lot which extends to an alley running parallel to the buildings.

Officer Whitehead arrived at the scene within minutes of the radio dispatch and only seconds before Officers Rokus and Pepin. Whitehead pulled into the alley and onto the empty lot behind the station, where he immediately observed a man, crouched in the weeds, 20 to 30 feet from the station. As the officer got out of his car, the defendant, who he saw carrying a gun, jumped up from the weeds, ran towards the fence, climbed to the other side and proceeded south down Maple Street. Officer Whitehead testified that the defendant disposed of the gun sometime before he scaled the fence, although he could not remember seeing it being dropped.

Twelve to fifteen minutes after he was initially observed, Officer Pepin discovered the defendant hiding in the weeds behind the tool company, approximately 280 feet from the service station. The defendant had removed his shirt and was lying on it. A black nylon stocking with a knot in the end of it was found in his pocket. Although the defendant claimed that he was going to the gas station to buy cigarettes, the officer found no money on defendant’s person. Officer Whitehead, later, positively identified the defendant as the man he had observed with the gun.

As Officers Rokus and Pepin approached the scene, they observed Whitehead’s car and a subject wearing a yellow shirt, later identified as Charles Lott, going over the fence. Rokus apprehended Lott, three minutes later, in the rear of the construction company, approximately 180 feet from the service station. Both Rokus and Pepin identified Lott as the man they had observed scaling the fence. Officer Pepin searched Lott’s pants, finding one bag of cannabis and a black stocking with a knot tied on the end. During his search for the second suspect, Officer Pepin found a fully loaded revolver lying on the ground, six inches from the fence. It is unclear from the record if the station was open at the time the officers arrived on the scene. Officer Whitehead did notice, however, that the station was open at some time during his search of the area.

The defendant maintains that the State’s evidence is insufficient to establish the two essential elements of the offense of attempt. Section 8 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)) provides:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.)

Section 18 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) provides:

“A person commits armed robbery when he or she [takes property from the person or presence of another by the use of force or by threatening imminent use of force] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.”

We find that the facts and circumstances of this case are sufficient to prove that the defendant possessed the requisite intent to commit a specific armed robbery and that he took a substantial step toward the commission of that armed robbery. For the reasons to follow, therefore, we affirm the judgment of the appellate court.

It is well established that, to obtain a conviction for attempt, the State must prove that the defendant intended to commit a specific offense. (People v. Stroner (1983), 96 Ill. 2d 204, 211; People v. Trinkle (1977), 68 Ill. 2d 198, 202; People v. Viser (1975), 62 Ill. 2d 568, 581.) As the court stated in Viser, “[tjhere is no such criminal offense as an attempt to achieve an unintended result.” (62 Ill. 2d 568, 581.) The intent to commit a criminal offense need not be expressed, but may be inferred from, the conduct of the defendant and the surrounding circumstances. (People v. Mulcahey (1978), 72 Ill. 2d 282.) Thus, in Mulcahey, where the defendant was convicted of attempted armed robbery, the court was able to infer the requisite intent to take money from a victim by force, although no specific demand for money had been made.

While the defendant, in the instant case, does not deny the presence of “some” criminal intent, he maintains that the evidence fails to “imply a design to commit an armed robbery at the station.” He suggests a list of alternative targets and offenses which includes the crime of burglary as opposed to armed robbery. In addition, he finds it significant that the State failed to establish that the gas station was open when he was initially discovered.

We find this argument unpersuasive. It is unreasonable to expect a trier of fact to infer intent to commit burglary, rather than armed robbery when confronted with a suspect who was seen carrying a loaded revolver and in possession of a ladies’ stocking but no burglary tools. In addition, the trial court could reasonably infer that the service station was the object of defendant’s plan. The defendant was observed in close proximity to the station, by Officer Whitehead, as he arrived on the scene. This observation was in conformity with the initial tip from the telephone caller who specifically indicated that the suspects were hiding behind the service station. As for the victim necessary for an armed robbery, the trier of fact may reasonably have inferred that the defendant was awaiting the attendant’s arrival before taking the final step in his plan. Furthermore, although armed robbery requires a victim, “[i]t [is] not *** a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(b).) It is not a defense to the charge of attempted armed robbery, therefore, to take a substantial step toward the commission of the armed robbery only to find the victim, the attendant, not yet present.

The evidence presented to the trier of fact, in this case, revealed a defendant who had concealed himself in the weeds in close proximity to a service station, which was about to open, while in possession of a stocking mask and a fully loaded revolver. In further support of an inference of criminal intent, defendant’s efforts to elude the police as well as his weak excuse for his presence at the scene, could also be properly considered. (People v. Harris (1972), 52 Ill. 2d 558, 561.) Faced with these facts, we find it incredulous that defendant had any intent other than the armed robbery of the service station.

We turn next to what has been described as “one of the most troublesome problems” in the area of inchoate offenses: “when preparation to commit an offense ceases and perpetration of the offense [attempt] begins.” (Ill. Ann. Stat., ch. 38, par. 8 — 4(a), Committee Comments, at 512 (Smith-Hurd 1972).) Answering this question requires an analysis of the second statutory element of the offense of attempt — “any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) Although it is not necessary that a defendant complete the last proximate act in order to be convicted of attempt, our cases have held that mere preparation is not a substantial step. (People v. Elmore (1971), 50 Ill. 2d 10, 12; People v. Woods (1962), 24 Ill. 2d 154, 158.) It would be an impossible task to compile a definitive list of acts which, if performed, constitute a substantial step toward the commission of every crime. Such a determination can only be accomplished by evaluating the facts and circumstances of the particular case. (People v. Wallace (1974), 57 Ill. 2d 285, 292.) This is not to suggest, however, that analysis of cases which have defined “substantial step” cannot provide some guidance.

In affirming the decision of the trial court, the appellate court, in this case, relied on People v. Burleson (1977), 50 Ill. App. 3d 629. When placing the facts in this case on the continuum between preparation and perpetration, comparison with the facts in Burleson becomes useful. In Burleson, the defendant and his accomplice had approached a bank while “.in possession of a shotgun, suitcase and disguises which were in place.” (50 Ill. App. 3d 629, 633.) Only the quick action of a man inside the bank, who bolted the door as the perpetrators approached, prevented completion of the offense. The court found that the defendant in Burleson had taken a substantial step toward the armed robbery of the bank. The defendant, in the instant case, did not yet have his mask on nor had he arrived at the station’s front door. It would be unreasonable to believe, however, that the defendant’s actions did not place him in “ ‘dangerous proximity to success.’ ” People v. Paluch (1966), 78 Ill. App. 2d 356, 360, quoting Hyde v. United States (1912), 225 U.S. 347, 388, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 (Holmes, J., dissenting).

A later appellate court decision, People v. Reyes (1981), 102 Ill. App. 3d 820, provides further comparison with the facts of the instant case. The defendants in Reyes were found guilty of attempted armed robbery. While in possession of a rifle, they approached, but did not enter, a drugstore. The intended victims were inside the store. Shortly after the defendants’ arrival on the scene, several patrons walked out of the drugstore. Reyes and his codefendant began to run while, at the same time, the codefendant fired his rifle. They were arrested in a nearby school yard a short time later. In a statement, Reyes said that the plan was to rob the victims as they exited the drugstore.

Reyes maintained that he could not be found guilty of attempted armed robbery because he had never entered the drugstore. In rejecting that argument, the court noted that, by Reyes’ own admission, his plan did not contemplate entry into the building. Relying on Burleson, the court went on to say that when the victim of an intended armed robbery is within a building, “entry into that building is not required for a finding of attempt armed robbery. *** Burleson stands for the principle that a substantial step has been taken when an actor possesses the materials necessary to carry out the crime, at or near the place contemplated for its commission.” (102 Ill. App. 3d 820, 835.) Like the defendants in Burleson and Reyes, the defendant, in the case at bar, was in possession of the materials necessary to carry out an armed robbery and was near the place contemplated for its commission. He was armed with a loaded revolver, a disguise and the assistance of an accomplice, whose presence and identical disguise indicated a prearranged plan. He was lying in wait, only 25 to 30 feet from his target, with gun in hand. It was only the arrival of the police which caused him to abandon his plan.

When defining “attempt” it becomes problematic deciding when to allow the police to intervene in an unfolding course of criminal conduct. While caution must be exercised to avoid punishment for inconclusive acts, prevention of an intended crime is necessary. (Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation & Conspiracy, 61 Colum. L. Rev. 571, 572 (1961).) The defendants in Burleson, Reyes and the case at bar were involved in crimes which posed a serious threat of great bodily harm to the victim. It should not be necessary to subject victims to face to face confrontation with a lethal weapon in order to make a positive finding of the essential element of a substantial step.

The Model Penal Code has set forth a list of acts which may be considered to be a substantial step, when strongly corroborative of the actor’s criminal purpose. The appellate court, in this case, found the defendant’s conduct to be described by several acts on the list. These were:

“(a) lying in wait, searching for or following the contemplated victim of the crime;
(b.) * * *
(c) reconnoitering the place contemplated for the commission of the crime;
(d.) * * *
(e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
(g) ***.” (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1963).)

A comparison of the categories of acts included on this list with the specific actions of the defendant gives further support to a finding of a substantial step.

The record reflects no error which requires reversal. We find the evidence presented in this case is sufficient to establish, beyond a reasonable doubt, defendant’s intent to commit armed robbery of an individual within the service station and that he took a substantial step toward the commission of the armed robbery. The judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

The crime of attempt has two unambiguous requirements— “intent to commit a specific offense,” and an “act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) I do not believe that either the intent requirement or the substantial step requirement have been met in this case.

The few facts proved here suggest, at most, a general intent to engage in some form of mischief in the general area in which defendant was arrested. The majority uses the same facts to establish both intent to commit a specific armed robbery, and a substantial step in the commission of that robbery. These facts are defendant’s presence in the vicinity of the station, and his possession of a gun and of a woman’s stocking capable of being used as a face mask.

This result goes far beyond prior Illinois law. The evidence here falls short of unambiguously establishing an intent to commit a specific offense. Further, the majority, while relying on the Model Penal Code, ignores its requirement that listed conduct be considered a substantial step toward the commission of a crime only if it is “strongly corroborative of the actor’s criminal purpose.” (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962)). With no independent evidence of intent, i.e. criminal purpose, the majority is equating defendant’s conduct with a substantial step without corroboration.

People v. Mulcahey (1978), 72 Ill. 2d 282, does not stand, as the majority suggests, for the proposition that “[t]he intent to commit a criminal offense need not be expressed, but may be inferred from the conduct of the defendant and the surrounding circumstances.” (99 Ill. 2d at 431-32.) On the specific and rather strange and complicated facts of Mulcahey, this court held that “proof of intent to commit armed robbery did not require that he make a specific demand of [the intended victim] for the money which he had instructed him to bring.” (Emphasis added.) (72 Ill. 2d 282, 286.) In that case, the defendant held the wife of a bank president hostage in her own home and forced her to phone her husband. The defendant then instructed the husband to bring $25,000 ransom to a shopping center. The husband informed the police and was told that there might be plainclothes officers in the delivery area. When the husband reached the shopping center, he left the briefcase containing the money and returned home, where he learned that his wife was free and unharmed. He returned to the shopping center to retrieve the briefcase, and saw a man in his wife’s automobile. Thinking that the man was a plainclothes officer, he approached the car, opened the door, and told the man that his wife was all right. However, the man who was the kidnaper pointed a gun at the husband and said, “Get in the car or you’re a dead man.” The husband fled.

The defendant in Mulcahey was convicted of aggravated kidnaping and attempted armed robbery. Unlike the situation here, the defendant there had demanded money from the husband earlier that day in their phone conversation. The Mulcahey court did not infer a demand where there was none; the court relied on the entire chain of events beginning with the telephone demand for money and ending with the attempted use of the gun to obtain control over the husband and his money. Defendant’s prior demand indicated his plan to obtain control over the $25,000, and his conduct was corroborative of the criminal intent evidenced by the armed threat. In contrast, the defendant in this case approached no one with a weapon; he made no demands to turn over money, to get into a car, or to do anything else. There was no corroborating evidence of a planned armed robbery. As far as the record shows, defendant made no phone calls, gave no signs, and told no one of any plans. No individual testified that defendant had any plan to rob the station. Defendant pleaded not guilty and made no oral or written statements indicating such a plan.

At most, all the State has proved is preparation to commit some as yet unspecified offense, perhaps involving one of several other businesses located in the immediate vicinity. Although it is not necessary that the defendant complete the last proximate act in order to be convicted of attempt in Illinois, the statute nonetheless requires a substantial step toward commission of the offense. Mere preparation is not a substantial step. (People v. Wallace (1974), 57 Ill. 2d 285; People v. Elmore (1971), 50 Ill. 2d 10; People v. Woods (1962), 24 Ill. 2d 154, cert. denied (1962), 371 U.S. 819, 9 L. Ed. 2d 59, 83 S. Ct. 34.) The acts of defendants in those cases came much closer to criminal conduct than defendant’s behavior here, suspicious as it was. In People v. Wallace (1974), 57 Ill. 2d 285, the defendants offered money to the police officers who seized the money from them; they were convicted of attempted bribery. In People v. Elmore (1971), 50 Ill. 2d 10, the defendants, who were convicted of theft by deception, listed a stereo, which they had previously sold and delivered, on an insurance claim form, falsely indicating that the stereo had been destroyed by fire. Once they submitted the claim form, defendants could only have intended that they be reimbursed for an item which they knew had not been destroyed. In People v. Woods (1962), 24 Ill. 2d 154, the defendant was convicted of attempted abortion after he accepted and counted his fee, explained the operation to the patient, and gave her a sedative.

It is clear from these cases that there is no catalogue of acts which invariably constitute a substantial step toward the commission of every crime. The line between preparation and attempt is difficult to specify and can only be drawn by evaluating the facts of each case (Ill. Ann. Stat., ch. 38, par. 8 — 4(a), Committee Comments, at 512 (Smith-Hurd 1972)). The significance of various acts becomes apparent only in the light of the defendant’s criminal intent.

In People v. Eveland (1969), 43 Ill. 2d 90, 93, this court reversed a conviction for attempting to obstruct justice because the State failed to prove the requisite intent. After the police arrested two men in connection with a recent armed robbery, they obtained a warrant to search the trailer where one of the men lived. Although the police found defendant and another individual carrying clothing from the trailer to a nearby parked car, there was no evidence that the defendant was removing or intended to remove incriminating evidence from the trailer. This case is similar. While the defendant’s presence and behavior near the service station arouse suspicion, they do not provide clear evidence of an intent to commit a specific crime. Under Illinois law, a defendant cannot be convicted of attempt on the basis of suspicious behavior alone.

The defendant’s actions here were preliminary activities, consistent with a number of different outcomes. It does not appear to me “incredulous that defendant had any intent other than the armed robbery of the service station.” (99 Ill. 2d at 433.) There was no evidence in the record that there was anyone in the service station during the time defendant was hiding in the weeds. There is also no evidence as to the customary opening time either of the station, or of the other nearby businesses. There is no indication whether anyone was present in any of the other business establishments, or whether anyone was walking on the street, in the alleyway, or in the empty lot. Potential armed-robbery victims could have been located in any of those places. Further, I do not find it “unreasonable to expect a trier of fact to infer intent to commit burglary, rather than armed robbery when confronted with [this] suspect.” (99 Ill. 2d at 432.) Many burglaries are committed without special tools; defendants enter through open windows or throw rocks found in empty lots to break windows, to give but two of many examples. Too, burglars often wear masks to hide their identities in the event that they are inadvertently discovered. Guns are also carried by burglars in case they unexpectedly encounter other people.

The problem in defining attempt is to allow police to intervene in an unfolding course of criminal conduct before the intended harm is actually done, while at the same time avoiding punishment for equivocal acts which may or may not eventually lead to criminal harm. (Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 572 (1961).) It is always difficult to draw this line so as to properly balance the conflicting needs of the police and the public at large against the rights of the individual citizen. Our legislature has drawn the line at the point where the defendant has taken a substantial step toward commission of the crime. This court cannot interfere with the legislature’s decision and with that balance by moving the line further in the direction of mere preparation and undefined intent.

Reliance by the appellate court and by the majority in this court on People v. Burleson (1977), 50 Ill. App. 3d 629, is misplaced. The appellate court held that the defendant in Burleson had taken a substantial step toward the armed robbery of a bank. Burleson was just outside the bank with a disguise, a shotgun, and a suitcase all in place. As the majority points out, “[o]nly the quick action of a man inside the bank, who bolted the door as the perpetrators approached, prevented completion of the offense.” (Emphasis added.) (99 Ill. 2d at 434.) That is far different from the situation here where defendant was, according to the majority opinion, approximately 30 feet away from one of several possible targets, was never observed moving toward the station or any other target, drew no weapon, approached no one, and made no demands of any kind on anyone (for there is no evidence that any potential victim was present), and carried a woman’s stocking capable of being used as a mask in the pocket of pants so tight that the police officer had difficulty removing it when he searched defendant. This is hardly “dangerous proximity” to completion of the offense. It is ironic that the majority relies on Justice Holmes’ famous phrase, as quoted in People v. Paluch (1966), 78 Ill. App. 2d 356, 360, quoting Hyde v. United States (1912), 225 U.S. 347, 388, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 (Holmes, J., dissenting). In both Hyde v. United States (1912), 225 U.S. 347, 387, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 and People v. Paluch (1966), 78 Ill. App. 2d 356, 359-60, the full passage includes the statement, “*** intention and overt act may all be present without amounting to a criminal attempt.” In addition, there must be dangerous proximity to success. Here, I am unable to find intention or overt act. How can there be dangerous proximity, in Justice Holmes’ term, when those two initial hurdles have not even been surmounted? To understand what Justice Holmes meant by “dangerous proximity” I suggest referring to his often quoted example illustrating the distinction between preparation and attempt. The purchase of a box of matches is too remote to sustain a conviction for attempting to bum a haystack. Lighting a match in proximity to the haystack would be enough to sustain the charge. (O. W. Holmes, The Common Law 67-69 (1881).) No act of the defendant here could be regarded as equivalent to lighting the match. At most his actions are analogous to being some distance away from the haystack with the matches in his pocket.

The second case relied on by the majority, People v. Reyes (1981), 102 Ill. App. 3d 820, presents an even more striking contrast to this case. Several defendants waited outside a drugstore with a rifle, while patrons were inside. When the intended victims left the store, two defendants began to run, ,and one fired the rifle. Defendant Reyes admitted that the plan was to rob the victims as they left the drugstore. Corroborating evidence of a plan to rob the station is precisely what is missing in this case. Even if the majority in People v. Reyes (1981), 102 Ill. App. 3d 820, 835 and the majority in this case (99 Ill. 2d at 435) are correct in stating that “Burleson stands for the principle that a substantial step has been taken when an actor possesses the materials necessary to carry out the crime, at or near the place contemplated for its commission,” there must be evidence of what the crime is, and of the place contemplated for its commission. There is nothing in the record here which indicates that defendant planned to rob this particular station at this particular time. The majority’s suggestion that the presence of an accomplice with an identical disguise indicates a prearranged plan (99 111. 2d at 435) does not resolve the question, since these go only to general intent. Neither the accomplice nor the disguises are unambiguous evidence of intent to commit the specific offense of armed robbery of someone within the station. As I have explained above, both are consistent with a variety of other goals. Since there is no independent corroborating evidence of a plan to rob someone within the station, it is impossible to isolate a specific intent.

Although the majority mentions a number of acts which resemble those listed in section 5.01 of the Model Penal Code as “not *** insufficient as a matter of law” to be regarded as a substantial step (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962)), it includes, yet ignores, the introductory language “if strongly corroborative of the actor’s criminal purpose.” Also it fails to mention the preceding sentence which states pointedly: “Conduct shall not be held to constitute a substantial step under Subsection (lXc) of this Section unless it is strongly corroborative of the actor’s criminal purpose.” (Emphasis added.) (Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962).) (See 99 Ill. 2d at 436-37.) This is consistent with the understanding of the reporter of the Model Penal Code. “[T]he requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown ***.” Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 593 (1961).

The analysis mandated by the statute requires two steps. There must first be criminal culpability, the unambignous expression of the intent to commit a particular act. Only after intent has been established can the court determine whether the defendant’s acts constitute a substantial step toward commission of the identified crime. The Federal courts have reached a similar conclusion in construing the Model Penal Code. Cf. United States v. Jackson (2d Cir. 1977), 560 F.2d 112, cert. denied (1977), 434 U.S. 941, 54 L. Ed. 2d 301, 98 S. Ct. 431, and (1978), 434 U.S. 1017, 54 L. Ed. 2d 762, 98 S. Ct. 736; United States v. Stallworth (2d Cir. 1976), 543 F.2d 1038; United States v. Mandujano (5th Cir. 1974), 499 F.2d 370, cert. denied (1975), 419 U.S. 1114, 42 L. Ed. 2d 812, 95 S. Ct. 792.

Since the defendant’s acts do not establish beyond a reasonable doubt his intent to commit armed robbery of an individual within the service station, and since no other evidence of either intent or substantial step toward commission was presented, I do not believe that defendant’s conduct can support a conviction for attempted armed robbery. For the reasons explained above, I dissent and would reverse the conviction.

GOLDENHERSH and CLARK, JJ., join in this dissent.