text:
    NATIONAL METALCRAFTERS, A DIVISION OF KEYSTONE CONSOLIDATED INDUSTRIES, INC., Plaintiff-Appellee, v. LOCAL 449, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS AFL-CIO et al., Defendants (Carl Barconi, Respondent-Appellant).
    Second District
    No. 2—88—0683
    Opinion filed June 27, 1984.

      Angelo P. Bruscato, of Rockford, for appellant.
    Robert H. Joyce and Robert C. Long, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Carl Barconi, was found guilty of contempt in the circuit court of Winnebago County for violating a temporary restraining order (TRO) and was sentenced to a 60-day term of imprisonment. He appeals contending (1) that his right to due process was violated as the rule to show cause issued against him failed to advise him of the specific misconduct with which he was charged; (2) that the evidence did not establish that he had prior notice of the TRO which he was found to have violated; (3) that the penalty imposed was excessive; (4) that he was deprived of his right to a trial by jury; and (5) that the trial court did not state whether it found beyond a reasonable doubt that he violated the TRO.

In April 1983, defendant, Local 449, United Automobile, Aerospace and Agricultural Implement Workers AFL-CIO, called a strike against plaintiff, National Metalcrafters, a division of Keystone Consolidated Industries, Inc., after expiration of the parties’ collective bargaining agreement. The company filed a complaint for injunction and on May 3, 1983, a TRO was issued which enjoined the union, its officers, unnamed striking employees, and any other persons acting in concert therewith, from

“(1) Physically, through the use of their own bodies or vehicles, blocking the entrance to the Plants and preventing or interfering with ingress and egress thereto of Plaintiff’s vehicles, common carrier vehicles and the vehicles of other persons doing business with Plaintiff; threatening damages to employees of Plaintiff or their property at plant entrances, at the employees’ homes, or on the way to and from work.”

Defendant, Carl Barconi, was not named in the petition for TRO or in the writ which was issued, nor was he personally served with either document.

Thereafter, on May 19, 1983, the company filed a petition with the trial court for the issuance of a rule to show cause against the union, certain of its officers, and against Carl Barconi to show cause why they should not be held in contempt of court for violation of the TRO. The petition stated that the court had entered a TRO on May 3, 1983, which enjoined mass picketing and violence; while it did not state the nature of the violations committed by Barconi, it did incorporate several affidavits and photographs as describing the separate violations charged against Barconi, the union, its officers and other strikers. The petition did not state whether it sought a criminal or civil contempt finding and it was personally served on Barconi on May 25, 1983.

In the affidavits, Thomas Lawrence described an incident alleged to have occurred on May 11 in which his truck was stopped by pickets when he attempted to drive into the company’s plant and a striker jumped upon it, threatened to kill him and tried to pull his arm from the steering wheel. The affidavit did not identify the striker, but it described him and attached to it were copies of photographs of a group of pickets who were present that day at the plant entrance, one of whom was Barconi. An affidavit by Arnold Belcher described a similar incident, which was alleged to also have occurred on May 11, and identified Barconi as the man who jumped upon the running board of his truck as he drove into the company’s plant. It stated Barconi yelled obscenities at him and beat on the window on the driver’s side with his hand. Belcher identified Barconi from the same pictures referred to in Lawrence’s affidavit.

At a hearing on May 27, 1983, at which counsel for Barconi was present, the court issued a rule against him to show cause why he should not be held in contempt for violation of the TRO. The rule did not state when or in what manner defendant was alleged to have violated the TRO, nor did it indicate whether the contempt charged was civil or criminal. The original date of June 9, set for the contempt hearing was continued at the request of counsel for the union and Barconi for the purpose of filing responsive pleadings; none was filed by Barconi. Prior to the contempt hearing, the company was given leave to file supplemental affidavits and exhibits in support of its show cause petition, and they were filed at a hearing on June 6, at which Barconi’s counsel was present.

One of the affidavits then filed was by Roger Bourgord, an employee of the company. He alleged that on May 26, 1983, he and another employee waited at a public parking garage for the company bus to take them to work; the garage was being picketed by a large number of strikers, one of whom was Barconi. Before the two left in the bus, Barconi approached them and stated, “I ought to break both your necks. I’m just the guy to do it.” It alleged Barconi also shouted obscenities at them.

Evidentiary hearings were held on June 15, 16 and 23, 1983, on the separate rules to show cause against Barconi, the union and its officers. Many witnesses were called by the company who testified to threats and violence against employees, damage to employee property and mass picketing at the plant which blocked ingress and egress. While most of the testimony concerned conduct which did not involve Barconi, three witnesses were called by the company to testify as to his claimed violations of the TRO. Company employee Arnold Belcher testified that at 9 a.m. on May 11 he was driving a semitruck towards gate No. 4 at the company’s plant. As he reached the gate he slowed the truck because the path was blocked by a group of pickets. Barconi then jumped up onto the fuel tank on the driver’s side of the truck, hit the window on that side with his fist, and called Belcher a “sorry mother fucker.” Defendant rode on the truck for 30 to 40 feet before he jumped off as it went through the gate. Thomas Lawrence testified about a similar incident which occurred one hour later that same day. Lawrence, a driver for a common carrier which did business with the company, was attempting to drive his truck into the same plant gate when he also was stopped by strikers blocking the road. Before he could proceed, Barconi opened the driver’s door and jumped onto the truck’s running board, grabbing Lawrence by the left arm. When Lawrence advised defendant he was part of management, defendant told him to get out of there. As Lawrence started to move the truck forward, Barconi grabbed his left arm with both hands twisting it back and forth as the two men struggled. Lawrence stated he avoided being pulled out of the truck and that during the struggle Barconi threatened to kill him if he entered the plant. When Lawrence then drove forward through the gate he stated that Barconi jumped clear. As a result of this occurrence, Lawrence sought medical attention for a bruise and cut on his left arm and hand. He notified the police and signed a criminal complaint against Barconi which was pending at the time of the contempt hearing.

Roger Bourgord testified, in similar terms as stated in his earlier affidavit, that he had been threatened by Barconi while he waited in the Metro Centre Concourse parking garage for the company bus to take him to work. He quoted Barconi as saying to him and another employee, “I ought to break both your necks and I’m just the guy to do it.” After uttering obscene words Barconi left.

Union president Stanley Meyer was called by the company as an adverse witness. He testified that he was present in court when the TRO was issued on May 3 and had then received a copy of it. He further stated that during the strike the union held weekly membership meetings and, at least one of them, he advised the members present of the TRO and urged them to obey it. While the witness assumed Barconi had attended the meeting where the TRO was discussed, he could not say for sure. The day after the TRO was issued Meyer went down to the picket line and advised the strikers present of its terms; he did not observe Barconi on the picket line at that time.

Jerry Field, union vice-president, was also called as an adverse witness and testified that each of the union’s five picket captains had been advised of the terms of the TRO and instructed to advise the pickets at the plant of those terms. One of the picket captains was among a group of pickets, which included Barconi, who were photographed at gate No. 4 of the plant on May 11, approximately IV2 hours before the altercation involving Barconi.

Barconi did not present any evidence at the hearing. The trial court dismissed the rule to show cause against the two union officers in their individual capacities and found both the union and Barconi in contempt for having violated the TRO. The trial court did not state whether its contempt findings were civil or criminal and noted as to Barconi that he had received notice of the TRO May 3, 1983, and violated it on May 11, by interfering with entry into the plant of trucks driven by Lawrence and Belcher, and also violated it when he threatened Bourgord on May 26. Barconi was thereafter sentenced to 60 days in the county jail.

On July 12, 1983, Barconi filed a motion to reconsider and reduce the sentence. It alleged that there was no evidence he had actual notice of the TRO prior to actions for which he was found in contempt and that the sentence was excessive. At the hearing of this motion, his counsel argued that the contempt finding had been criminal, riot civil contempt, and that the evidence did not establish Barconi’s actual knowledge of the existence of the TRO beyond a reasonable doubt. The motion was denied and Barconi appeals.

Before addressing the issues raised we must first determine whether the finding of contempt was criminal or civil. Barconi argues it was criminal, the company urges we find he was held in civil contempt, and the trial court did not explicitly characterize its finding as either civil or criminal contempt.

Our supreme court in Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 208-09, 357 N.E.2d 477, quoting from People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 173 N.E.2d 417, defined and distinguished civil and criminal contempt as follows:

“ ‘Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both. [Citations.] Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citations.] These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. [Citation.] A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In re Nevitt, (8th Cir.) 117 E 448, “he [the contemnor] carries the key of his prison in his own pocket.” 21 Ill. 2d 407, 409-10.’ ”

As a further distinction, it has been held that civil contempt occurs when the contemnor fails to do that which the court has ordered, while criminal contempt consists of doing that which has been prohibited. (Aurora Steel Products v. United Steelworkers (1981), 94 Ill. App. 3d 97, 100, 418 N.E.2d 492.) Reviewing courts have often stated that where the penalty imposed is solely punitive, and not to coerce or obtain future compliance with a court order, the contempt finding would be considered criminal; a definite term of incarceration, which denies the contemnor the “keys to his cell” because it does not provide for release upon compliance with the court’s order, has been held to bar a finding of civil contempt. O’Leary v. Allphin (1976), 64 Ill. 2d 500, 512, 356 N.E.2d 551; People v. Gholson (1952), 412 Ill. 294, 299, 106 N.E.2d 333; Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 676-77, 447 N.E.2d 891; Aurora Steel Products v. United Steelworkers (1981), 94 Ill. App. 3d 97, 101, 418 N.E.2d 492.

Applying these rules, we conclude Barconi was convicted of criminal contempt. In its findings, the trial court referred to his past violations of the TRO and noted they constituted a pattern of intentional violation of that order. Reference to a contemnor’s past actions as deliberate and intentional violations of a court order, when a definite sentence of incarceration is imposed, demonstrates that he was found in criminal contempt. (Hoga v. Clark (1983), 113 Ill. App. 3d 1050, 1059, 448 N.E.2d 196.) While the company argues that the contempt should be construed as civil, we note that it advised the trial court at the contempt hearing it had initiated the proceedings against the union and Barconi as a “friend of the court” and not for company benefit. Also, in arguing for a contempt finding, counsel for the company advised the court it was not pursuing this matter for anything done to the company, but for Barconi’s violation of a court order. It is apparent, as to Barconi, the company did not seek a civil contempt finding and sentence in the trial court.

I

Barconi contends first that prior to the contempt hearing he was not adequately advised of the conduct alleged to be in violation of the TRO. He notes that the rule to show cause does not state the facts upon which the violation was based nor did it specify whether the rule was for civil or criminal contempt, only advising him that he was charged with contempt for violation of the TRO.

As Barconi’s conduct occurred outside the presence of the court, it is clear he was charged with indirect criminal contempt, and due process requires that prior to the hearing he be informed of the charges by information, notice, or rule to show cause and be given a reasonable opportunity to defend against the charges. (Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 210, 357 N.E.2d 477; People v. Javaras (1972), 51 Ill. 2d 296, 300, 281 N.E.2d 670; People v. Edwards (1979), 69 Ill. App. 3d 626, 628, 387 N.E.2d 969.) The description of the charges must be such to enable an alleged contemnor to prepare a defense. In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 893, 364 N.E.2d 430.

However, Barconi did not at any time challenge the sufficiency of the charges against him or suggest that he could not adequately prepare for a hearing because of lack of knowledge as to their nature. By failing to raise this issue in his post-trial motion, he has waived it. (See People v. Martin-Trigona (1980), 94 Ill. App. 3d 519, 521-22, 418 N.E.2d 763.) In any event, the argument lacks merit. The affidavits of two of the principal witnesses against Barconi, which closely parallel their later testimony at the hearing, were attached to the company’s petition for rule to show cause. Prior to the date of the contempt hearing, that petition was supplemented by further relevant affidavits and exhibits which were provided to defendant. His reliance upon People v. Oswald (1979), 69 Ill. App. 3d 524, 387 N.E.2d 886, is misplaced as it was a city ordinance violation case in which the complaint was held to insufficiently allege the facts of the offense. It is inappo-site as the stricter rules for charging a criminal offense do not apply to contempt proceedings, even if they involve criminal contempt. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 410, 173 N.E.2d 417.) Nor is People v. Vitucci (1964), 49 Ill. App. 2d 171, 199 N.E.2d 78, apposite, for in that case no rule to show cause was filed and there was no evidence defendant had ever been advised of the nature of the contempt charge against him. Defendant’s further reliance upon United States v. Professional Air Traffic Controllers (1st Cir. 1982), 678 F.2d 1, is not helpful because the Federal Rules of Criminal Procedure require that the charge in a contempt proceeding specify whether it is being prosecuted as criminal contempt. Cliett v. Hammonds (5th Cir. 1962), 305 F.2d 565, 570.

We find Barconi has waived this issue and that his arguments that he lacked adequate notice are without merit.

II

Barconi next contends the contempt finding must be reversed because the evidence failed to establish that at the time of the violations in question he had notice of the TRO and its prohibitions. Because we found that Barconi was convicted of criminal contempt, it is necessary that the evidence establish beyond a reasonable doubt that he knowingly and wilfully violated the TRO. O’Leary v. Allphin (1976), 64 Ill. 2d 500, 513, 356 N.E.2d 551; Aurora Steel Products v. United Steelworkers (1981), 94 Ill. App. 3d 97, 102, 418 N.E.2d 492; see People ex rel. Rusch v. Ferro (1942), 313 Ill. App. 202, 209, 39 N.E.2d 707.

We note first that it is not necessary to prove that a contemnor had been personally served with the TRO after it was issued in order to establish that he had knowledge of it and its contents. It is well settled that one who has actual notice of a TRO or injunction and what it prohibits must abide by it or risk being held in contempt; he need not be served as a party with the actual order if he otherwise learned of it. (People v. Maslowsky (1966), 34 Ill. 2d 456, 466, 216 N.E.2d 669, appeal dismissed (1966), 385 U.S. 11, 17 L. Ed. 2d 11, 87 S. Ct. 94; Paschen Contractors, Inc. v. Burrell (1973), 14 Ill. App. 3d 748, 753, 303 N.E.2d 246; American Zinc Co. v. Vecera (1949), 338 Ill. App. 523, 530, 88 N.E.2d 116.) Barconi was found to be in contempt for three violations of the TRO; two separate occurrences on May 11, 1983, when truck drivers entering the company’s plant were harassed, threatened and one injured, and a third occurrence on May 26, 1983, when a company employee was threatened. Since Barconi was personally served on May 25, 1983, with the company’s petition for a rule to show cause which recited that the court had earlier entered a TRO in which it enjoined mass picketing and violence, there can be no question that he had actual notice of the TRO and its prohibitions on May 26. It is also clear that Barconi’s intent to violate the TRO is readily inferable from the nature of his conduct on that day. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 61, 364 N.E.2d 50, cert, denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750.) We conclude Barconi’s knowing and wilful violation of the TRO on May 26 was established beyond a reasonable doubt.

However, as to the two violations of May 11, we find that the evidence did not establish beyond a reasonable doubt that on that date Barconi had notice of the TRO. The decisions in American Zinc Co. v. Vecera (1949), 338 Ill. App. 523, 88 N.E.2d 116, and O’Brien v. International Ladies’ Garment Workers’ Union (1919), 214 Ill. App. 61, are instructive. In American Zinc Co. v. Vecera a union president and four striking members were held in civil contempt. On review, the court concluded that they had actual notice of the temporary injunction before its violation because the union and some of its members were present when the injunction was issued, copies of the injunction were posted at plant gates, the company mailed a copy of the injunction to all of the strikers, the strikers were warned of the injunction by company representatives when observed violating it, and some of the union literature widely distributed during the strike made references to the injunction. The court concluded that defendants had actual notice of the injunction which had become common knowledge. (338 Ill. App. 523, 525-27.) In O’Brien v. International Ladies’ Garment Workers’ Union, there was widespread publicity of the injunction in newspapers, notices of it were posted around the plant and the defendant made a statement during the strike indicating he had heard an injunction had been issued. In view of these facts, the finding of contempt was upheld.

The company argues in the present case that the TRO was of common knowledge to the strikers and that Barconi, therefore, must have had knowledge of it by May 11. There was no evidence, however, that he was present at a union meeting or on the line at a time when pickets were advised of the issuance of the TRO or that he had otherwise learned of it. At most, the evidence showed that Barconi was on the picket line on May 11 when he was photographed approximately V-k hours prior to the incident with the first truck. Furthermore, no evidence is seen in the record of wide dissemination of information regarding the TRO by the company, or in newspapers, warnings to strikers or any admission of respondent, as was true in American Zinc and O’Brien. Unlike those cases, it cannot be said the existence of the TRO was common knowledge in the present case. We conclude that Barconi’s conduct of May 11 was not established beyond a reasonable doubt to have been committed in wilful and knowing violation of the TRO.

III

Barconi next argues that his 60-day sentence for contempt was an abuse of discretion as inappropriate to the offense.

When imposing sentence, the trial court noted that he had violated the TRO on three occasions, demonstrating a pattern of such violations. As discussed earlier, we have determined that the evidence was insufficient to support two of the violations for which Barconi was convicted and conclude that the sentence must be vacated and the cause remanded for resentencing for the May 26 violation. We offer no opinion as to whether a 60-day sentence would be appropriate, as a sentence for contempt is within the discretion of the trial court. City of Chicago v. Chicago Fire Fighters Union, Local No. 2 (1981), 99 Ill. App. 3d 583, 592, 425 N.E.2d 1071; compare People v. Coty (1982), 105 Ill. App. 3d 398, 400, 434 N.E.2d 432; People v. Henderson (1981), 95 Ill. App. 3d 291, 297, 419 N.E.2d 1262.

IV

Barconi next contends that the finding of contempt must be reversed because he was not afforded a right to have a jury trial. County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 356, 282 N.E.2d 720, is dispositive. Our supreme court there held that only where the penalty imposed for criminal contempt exceeds six months’ incarceration or a fine in excess of $500 must the record reflect that the contemnor was afforded a jury trial or knowingly and understandingly waived his right in open court. As Barconi was sentenced to 60 days’ imprisonment and was not fined he had no right to a jury trial.

V

Barconi finally argues that the contempt finding must be reversed because the trial court never directly stated what standard of proof it applied in doing so. Under either standard, however, the un-contradicted evidence is clear Barconi had notice of the TRO prior to May 26, 1983, when he threatened to injure the two employees, in violation of the terms of the TRO. See Aurora Steel Products v. United Steelworkers (1981), 94 Ill. App. 3d 97, 418 N.E.2d 492; Cf. Hoga v. Clark (1983), 113 Ill. App. 3d 1050, 1061, 448 N.E.2d 196.

Accordingly, the judgment of the circuit court finding Barconi in contempt is affirmed; the sentence imposed is vacated and the cause remanded for resentencing.

Affirmed in part; vacated in part and remanded.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    LAUHOFF GRAIN COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Diana Gallez, Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—84—0104 WC
    Opinion filed June 25, 1984.

      Harold A. Katz, Jerome Schur, and Lee A. Iverson, all of Katz, Friedman, Schur & Eagle, of Chicago, for appellant.
    Howard W. Small and Craig J. Causeman, both of Thomas, Mamer & Haughey, of Champaign, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The claimant, Diana Gallez, was awarded benefits by the Industrial Commission under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for both temporary total and permanent partial disability. On review, the circuit court confirmed the award of temporary total disability benefits, but reversed the Commission’s finding of permanent partial disability as against the manifest weight of the evidence. It is from this judgment that the claimant now appeals. We affirm.

The claimant was hired by the respondent, Lauhoff Grain Company, pursuant to an agreement between Lauhoff and the Defense Department. Her job was to unload 100-pound sacks of grain. On September 4, 1979, she had been employed by Lauhoff for six days. On this day, she was instructing a new worker on how to stack the grain bags. The claimant reached up to adjust the position of one of the stacked bags and injured herself. Her injury was described by her doctor as a subluxation of the 10th rib and mid-dorsal mysfascitis.

Initially, the claimant returned immediately to work. When she subsequently had difficulty performing her job, she was sent to a hospital. The claimant was advised by the emergency room doctor to stay off work for three days. The claimant was released for light duty on September 7, 1979, but was informed by Lauhoff that no such work was available. The claimant’s doctor released her to return to work without restrictions on October 15, 1979. The claimant was terminated by Lauhoff when she reported for work that day.

The claimant testified that she had not worked since October 15, 1979. She testified that she still experienced pain between her shoulder blade and backbone which was especially noticeable when she was tired or engaged in strenuous activity. She stated that her back “popped out” when she did heavy lifting or repetitive movement. She continued to see a chiropractor, Dr. Georges, for her condition.

The respondent introduced the testimony of its personnel manager, Mr. Small. Small testified that the claimant was not retained due to her inability to perform her job and the resultant possibility of future injury. As evidence of her inability to perform, the respondent introduced into evidence a written evaluation of the claimant’s performance.

The arbitrator awarded the claimant benefits for only temporary total disability. The Industrial Commission affirmed this award, and additionally found that the claimant was permanently partially disabled to the extent of 10%. The Commission stated that its decision to award benefits for permanent partial disability was “[bjased on the medical evidence presented and respondent’s admission that petitioner is no longer physically able to perform the job for which she was hired ***.” (Emphasis added.)

The circuit court found in its memorandum opinion that the Commission had treated Small’s testimony as a judicial admission which was binding on Lauhoff. The court considered this to be error because Small was not qualified to testify re the claimant’s medical condition. Further, the court found that the record demonstrated that Lauhoff’s decision to terminate the claimant was due to factors other than any perceived permanent disability. The court, therefore, reversed the Commission’s finding of permanent partial disability.

The claimant asserts as her first issue on appeal that the circuit court erred in its treatment of Small’s testimony. The claimant argues that the court erroneously concluded that the Commission had considered Small’s statement to be a judicial admission. Additionally, the claimant argues that the court then erred by finding that Small’s statement was inadmissible. Finally, the claimant contends that the court erred in reversing the award on the basis that the Commission improperly construed Small’s statement.

We find no error in the circuit court’s finding that the Commission considered Small’s testimony to be a binding judicial admission. It is clear from the record that the Commission utilized Small’s testimony as a binding judicial admission in determining whether the injury had resulted in a permanent disability. The Commission considered Small’s testimony to be dispositive of the question of whether the claimant had sustained some physical impairment, despite the evidence that the claimant was released to return to the same job shortly after her injury.

A review of the record also demonstrates that the court did not find Small’s testimony to be inadmissible. The court found instead that his testimony did not qualify as a judicial admission. The court itself relied on Small’s testimony in resolving the issues before it. Contrary to the claimant’s assertion, the circuit court did not find Small’s testimony to be inadmissible.

Having determined that the court did not err in its findings regarding Small’s testimony, we find that the court properly set aside the Commission’s award. The Commission based its award of permanent disability benefits in part on the erroneous characterization of Small’s testimony. Because the Commission misapplied the evidence, the circuit court properly reversed the Commission’s decision based on that evidence.

The claimant also asserts on appeal that the circuit court erred in finding that the Commission’s decision that the claimant was permanently disabled was against the manifest weight of the evidence. The claimant urges that the Commission, faced with two conflicting sets of testimony as to the reason for termination, found the claimant’s evidence to be the more credible. Questions of credibility, the claimant argues, are for the Commission as finder of fact.

The relevant facts in this case fall basically into two categories: medical evidence and evidence relevant to the claimant’s ability to perform her job both before and after her injury. The Commission found that the claimant was disabled based upon unspecified medical evidence and Lauhoff’s “admission” discussed above.

In rejecting the Commission’s reliance on medical evidence, the court noted that the claimant’s own doctor released her to resume her job on October 15, 1979. Dr. Adeli, an orthopedic surgeon, discharged the claimant as cured on September 21, 1979. Dr. Bavishi, an orthopedic surgeon who testified for Lauhoff, examined the claimant on February 20, 1980, and found her to be “almost asymptomatic.” The court noted finally that the claimant believed she was fit to return to work on October 15. The circuit court, therefore, concluded that there was no medical evidence to support the Commission’s finding.

The Commission also based its decision, as noted above, on Small’s admission regarding the reason for her termination. The Commission found that the basis for termination was that the claimant was no longer able to perform a job she had been capable of performing prior to her injury, thereby evidencing a permanent disability. The circuit court concluded that Small had not testified that the claimant could no longer perform her work. Instead, the court interpreted his testimony to mean that the claimant could not perform the job from the start and that she was, therefore, always susceptible to injury.

As noted previously, the claimant was hired as a loader pursuant to an agreement between Lauhoff and the Defense Department. After finding that women were underutilized, the Department ordered Lauhoff to hire women for the next 11 openings. The loaders’ job was to catch 100-pound sacks of grain as they came off a conveyor belt and then stack them in a boxcar. The claimant is five feet and one-half inches tall and weighed almost 200 pounds. At the time she was hired, Lauhoff’s doctor qualified her to work as a loader.

At the time she was terminated, Lauhoff stated in a letter that her work performance was poor. An evaluation of the claimant during her six-day employment was also introduced during the hearings. In the evaluation, the claimant received a “poor” rating in quality and quantity of work and safety record. She received a “fair” rating in dependability, attitude and attendance.

The Commission discounted the evidence of any difficulty on the claimant’s part in performing her job prior to the injury based upon her perfect attendance and the fact that she was training a new employee on the day she was hurt. The circuit court rejected the Commission’s decision based on a lengthy excerpt from Small’s testimony in which he stated that Lauhoff personnel did not believe that the claimant was capable of handling the job even prior to her injury. The court also relied on testimony by the claimant that she was in pain when performing her job even before her injury.

We find that the Commission’s decision was contrary to the manifest weight of the evidence. The medical evidence that was introduced indicated that the claimant suffered no permanent disability. Thus, the only evidence of disability was the claimant’s complaints and the evidence pertaining to the claimant’s termination. We concur with the circuit court’s decision that the evidence showed she was terminated based upon her inability to perform the job prior to the injury.

The judgment of the circuit court of Vermilion County is affirmed.

Affirmed.

SEIDENFELD, McNAMARA, WEBBER and KASSERMAN, JJ., concur.


author: JUSTICE LINDBERG

text:
    THOMAS J. THOMAS, Plaintiff-Appellant, v. ALDONA E. PETRULIS, Defendant-Appellee.
    Second District
    No. 2—83—0612
    Opinion filed June 29, 1984.

      Rita J. Thomas, of Dundee, for appellant.
    Gary Schuman and Edward J. Griffin, both of Defrees & Fiske, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Thomas J. Thomas, appeals from an order of the circuit court of Du Page County granting the motion of defendant, Aldona E. Petrulis, for judgment on the pleadings. Plaintiff brought suit seeking compensatory and punitive damages for statements contained in defendant’s charge of employment discrimination filed with the Equal Employment Opportunity Commission (EEOC) which allegedly were false and malicious. On appeal, plaintiff contends the trial court erred in concluding that the statements in the EEOC charge were absolutely privileged. Defendant responds that absolute immunity does attach to the statements in the charge because the EEOC is a quasi-judicial body. We affirm.

Plaintiff and defendant both were employed by the International Harvester Corporation, Science and Technology Laboratory (Company), in Hinsdale, Illinois. Plaintiff held the position of director of finance and technical planning, and defendant was his secretary. After terminating her employment to accept another position, defendant filed a formal written charge with the EEOC against the Company alleging sexual harassment and discrimination. The allegations in the charge principally were directed at plaintiff.

On November 8, 1982, plaintiff filed this libel action against defendant in the circuit court of Du Page County alleging that the statements in the charge were false, were made with malicious intent to injure him, and were libelous per se. In count III of his complaint, plaintiff alleged that he lost his employment with the Company because of the allegations in defendant’s charge.

In lieu of an answer, defendant filed a motion for judgment on the pleadings asserting that no triable issue of fact existed and that she was entitled to judgment as a matter of law. Specifically, defendant in her motion argued that each of the statements contained in the EEOC charge was absolutely privileged. After reviewing the parties’ memoranda of law and hearing argument, the trial court concluded the EEOC is a quasi-judicial body because a complainant must file an EEOC charge before commencing an action in the Federal courts. Based upon its conclusion that the EEOC is a quasi-judicial body, the trial court ruled as a matter of law that statements contained in an EEOC charge are absolutely privileged and therefore, granted defendant’s motion. Plaintiff thereafter filed a timely notice of appeal.

A motion for judgment on the pleadings admits as true all well-pleaded facts and attacks only the legal sufficiency of the complaint. (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317.) On review of an order granting judgment on the pleadings, the appellate court must ascertain whether the trial court correctly determined that no genuine issue as to any material fact was presented by the pleadings, and if there were no such issue, whether judgment was correctly entered. (Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 454 N.E.2d 1174; Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827.) In our review of the trial court’s order granting judgment on the pleadings, therefore, we accept as true the allegations in plaintiff’s complaint that defendant’s charge contained false and malicious statements.

The sole issue presented by this appeal is whether the EEOC is a quasi-judicial body, thereby entitling defendant to an absolute privilege for statements she made in her EEOC charge. Whether a defamatory statement is protected by an absolute or a qualified privilege is a question of law for the court. (Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 219, 408 N.E.2d 981, 986; Bond v. Pecaut (N.D. Ill. 1983), 561 F. Supp. 1037, 1038.) Statements made before quasi-judicial proceedings are absolutely privileged (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205), and such protection encompasses testimony given before administrative agencies or other governmental bodies when they are performing a judicial function. (Parker v. Kirkland (1939), 298 Ill. App. 340, 18 N.E.2d 709.) Historically, the privilege has attached to proceedings before a tribunal which exercises “*** ‘judicial functions — that is to say has power to determine the legal rights and to effect [sic] the status of the parties who appear before it ***.’ ” (298 Ill. App. 340, 346, 18 N.E.2d 709, 712.) The defense of absolute privilege has been described as resting upon the idea “that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.” (Prosser, Torts sec. 114, at 776 (4th ed. 1971).) Whether a tribunal is quasi-judicial depends upon the facts of each case and whether at the time in question the tribunal is performing a quasi-judicial function. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205.) The class of occasions where libelous words are absolutely privileged is narrow. Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167.

Illinois courts have ruled that certain proceedings are quasi-judicial. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167 (Attorney Registration and Disciplinary Commission); Parker v. Kirkland (1939), 298 Ill. App. 340, 18 N.E.2d 709 (Board of Appeals of Cook County); Kimball v. Ryan (1936), 283 Ill. App. 456 (Chicago Board of Election Commissioners); Krumin v. Bruknes (1930), 255 Ill. App. 503 (Naturalization Bureau of the United States Department of Labor); but see Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167 (Chicago Bar Association and American Bar Association are not quasi-judicial bodies).) Both parties rely on Allen as providing support for their positions. In Allen, the plaintiff, an attorney, filed suit alleging that defendant, his former client, had libeled him in a letter sent to the American and Chicago Bar Associations. The Allen court held that the plaintiff was not libeled because the defendant’s letter was not defamatory. Although stating that these communications to the bar associations were only entitled to a qualified privilege, the Allen court concluded that communications to the Attorney Registration and Disciplinary Commission (Commission) created by Supreme Court Rule 751 (87 Ill. 2d R. 751) were absolutely privileged.

“In Illinois, the Attorney Registration and Disciplinary Committee is a quasi-judicial body created by Supreme Court Rule 751 (Ill. Rev. Stat. 1979, ch. 110A, par. 751) to administer attorney discipline. Communication with this body or any of its officially authorized agents would be absolutely privileged.” 105 El. App. 3d 887, 890-91, 435 N.E.2d 167,170.

Defendant argues that Allen demonstrates that a body need not be adjudicatory to be quasi-judicial, because none of the three levels in the Rule 751 disciplinary procedure (Inquiry Board, Hearing Board, and Review Board) has the power to adjudicate an attorney’s rights. Plaintiff responds that the Inquiry Board’s responsibility to dispose of the charge, the Hearing Board’s responsibility to make findings, conclusions, and recommendations, and the Review Board’s responsibility to rule on the recommendations make clear that the Commission exercises an adjudicatory function. While plaintiff is correct that these three boards do perform some adjudicatory functions (i.e., making findings and conclusions), their role ultimately is only advisory. (In re Taylor (1977), 66 Ill. 2d 567, 573.) Despite this inability to decide conclusively the rights of the party being investigated, the Commission is quasi-judicial. See Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167.

While the parties have not cited nor have we found any decision directly on point, we note that Federal and other State courts have determined that an absolute privilege does attach to the proceedings of certain entities or quasi-judicial bodies. See Silver v. Mohaseo Corp. (1983), 94 App. Div. 820, 462 N.Y.S.2d 917 (statements published by employer before State Division of Human Rights pertinent to charges of discrimination were clearly privileged because Division was quasi-judicial); Circus Circus Hotels, Inc. v. Witherspoon (1983), 99 Nev. 56, 657 P.2d 101 (absolute statutory privilege attaches to employer’s letter filed with Employment Security Department concerning former employee’s claim for unemployment benefits); Land v. Delta Airlines, Inc. (1978), 147 Ga. App. 738, 250 S.E.2d 188 (information to and from the Employment Security Agency of the Georgia Department of Labor is protected by an absolute privilege); Magnan v. Anaconda Industries, Inc. (1980), 37 Conn. Supp. 38, 429 A.2d 492 (public policy encouraging employer and employees to speak freely requires absolute privilege for communications to employment security division when acting upon claims for unemployment compensation); cf. Brooks v. Solomon Co. (N.D. Ala. 1982), 542 F. Supp. 1229 (Federal policy of favoring dispute resolution warrants absolute privilege for remarks made by both management and labor during grievance adjustment session); see generally Annot., 45 A.L.R.2d 1296 (1956).

Six powers have been isolated as differentiating a quasi-judicial body from that performing merely an administrative function:

“1) [T]he power to exercise judgment and discretion; 2) the power to hear and determine or to ascertain facts and decide; 3) the power to make binding orders and judgments; 4) the power to affect the personal or property rights of private persons; 5) the power to examine witnesses, to compel the attend-anee of witnesses, and to hear the litigation of issues on a hearing; and 6) the power to enforce decisions or impose penalties.” (Parker v. Holbrook (Tex. Civ. App. 1982), 647 S.W.2d 692, 695, citing 1 Am. Jur. 2d Administrative Law secs. 167 through 173 (1962).)

A quasi-judicial body need not possess all six powers; however, the more powers it possesses, the more likely the body is acting in a quasi-judicial manner. (Parker v. Holbrook (Tex. Civ. App. 1982), 647 S.W.2d 692.) An analysis of the statute granting the EEOC its powers reveals that the agency possesses many of the attributes of a quasi-judicial body. The EEOC exercises judgment and discretion, hears and ascertains facts, and has the power to examine witnesses and compel their attendance. Courts have held that the existence of these powers in similar circumstances is indicative of a quasi-judicial body. See, e.g., Mock v. Chicago, Rock Island & Pacific R.R. Co. (8th Cir. 1972), 454 F.2d 131 (powers of National Railroad Adjustment Board including providing notice and written findings and conducting hearings make it a quasi-judicial body); Astro Resources Corp. v. Ionics, Inc. (S.D. Tex. 1983), 577 F. Supp. 446 (statements in letter from unsuccessful bidder on NASA procurement contract absolutely privileged because contracting officer exercised quasi-judicial powers when investigating and acting upon bid protest); Park Knoll Associates v. Schmidt (1982), 89 App. Div. 2d 164, 454 N.Y.S.2d 901, rev’d on other grounds (1984), 59 N.Y.2d 205, 451 N.E.2d 182, 472 N.Y.S.2d 19 (tenants are immune from suit for defamatory information contained in their application to the Division of Housing and Community Renewal because its proceedings involving investigation and "witness testimony are quasi-judicial).

Certain other powers of the EEOC are indicative of its quasi-judicial nature. By statute (42 U.S.C. sec. 2000e — 9 (1976)), all hearings and investigations conducted by the EEOC or its duly authorized agents are governed by section 11 of the National Labor Relations Act (29 U.S.C. sec. 161 (1976)). That section gives the EEOC: (1) access to and the right to copy evidence of a person being investigated; (2) the power to issue subpoenas regarding the attendance and testimony of witnesses; (3) the power to administer oaths; (4) the power to examine witnesses; and (5) the power to receive evidence.

The EEOC also possesses power to affect the rights of those who are subject to its investigation. Under section 2000e — 5(f) (42 U.S.C. sec. 2000e — 5(f) (1976)), for example, the EEOC is empowered to enforce its reasonable cause finding by either bringing a civil action in Federal court against a respondent if no acceptable conciliation agreement is reached or by intervening in a civil action instituted by an individual for relief under title VII. Additionally, the statute empowers the EEOC to petition the district court to enforce its subpoenas. (29 U.S.C. sec. 161 (1976).) However, as plaintiff emphasizes, the EEOC does not have the power to resolve conclusively the claim of discrimination. The EEOC’s failure to issue a reasonable cause finding does not preclude the complainant from suing the respondent and the EEOC’s issuance of a reasonable cause finding does not entitle the employee to recovery. Nonetheless, the Commission found quasi-judicial in Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167, has less power than the EEOC to determine a party’s rights as it is authorized only to make recommendations. Unlike the EEOC, the Commission cannot directly subpoena witnesses or documents, but can only take and transcribe witness testimony. By concluding even with this limited power that the Commission is quasi-judicial, the Allen court recognized that a tribunal need not be the ultimate arbiter of a party’s rights for its proceedings to be protected by an absolute privilege. Though not possessing all of the powers recited in Parker, the EEOC does have enough of the attributes of a quasi-judicial body to warrant extension of an absolute privilege to the statements contained in EEOC charges.

Also suggestive of the EEOC’s quasi-judicial nature is the Federal statutory scheme which requires a complainant to file a charge as a precondition to filing a civil suit. In contrast, a party need not even file a complaint with the quasi-judicial Commission considered in Allen prior to initiating a malpractice claim against his attorney. While the United States Supreme Court has held that the filing of an EEOC charge is not a jurisdictional prerequisite to suit and instead is akin to a statute of limitations subject to equitable tolling (see Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127), nevertheless a charge must be filed prior to instituting civil suit. Were the filing of a charge unnecessary and were these allegations embodied in a complaint as opposed to a charge, they would be absolutely privileged. (Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180.) Plaintiff challenges only the allegations in defendant’s charge and does not contend that the allegedly libelous statements were published by other means or to persons other than those employed by the EEOC to handle charges of discrimination. The fact that the EEOC is a necessary step prior to institution of a civil action supports defendant’s position that the EEOC is a quasi-judicial body.

In addition to the function of the EEOC, important policy considerations weigh in favor of protecting the statements in an EEOC charge with an absolute privilege. Courts do examine public policy interests when determining whether a particular body is quasi-judicial. For example, in Mock v. Chicago Rock Island & Pacific R.R. Co. (8th Cir. 1972), 454 F.2d 131, 135, the court found that “the policy considerations in promoting full revelations of the facts underlying a particular dispute and complete development of those facts in the Board proceedings dictate that an absolute privilege should be applicable.” See also Cooper v. Pic-Walsh Freight Co. (E.D. Mo. 1976), 27 FEP 344 (employer counterclaim for malicious prosecution dismissed because to entertain claims in the nature of malicious prosecution in response to the filing of a single title VII complaint would seriously undermine the clear policy of section 704 of the Civil Rights Act); Magnan v. Anaconda Industries, Inc. (1980), 37 Conn. Supp. 38, 44, 429 A.2d 492, 495 (“The same public policy considerations which dictate the necessity for an absolute privilege for judicial proceedings require such protection for unemployment compensation determinations”).

The Civil Rights Act of 1964 (hereinafter the Act) (42 U.S.C. sec. 2000e et seq. (1976)) was enacted to assure equality of employment opportunities by eliminating those practices that discriminate against individuals on the basis of race, color, religion, sex or national origin. This strong public policy is furthered by granting an absolute privilege to the allegations contained in charges filed with the EEOC. (Cf. Moran v. Simpson (1974), 80 Misc. 2d 437, 362 N.Y.S.2d 666 (employer defamation action dismissed on ground that filing a charge with the State fair employment practices agency constitutes protected activity).) Were a complainant aware that he would be subject to a libel suit as a result of filing an EEOC charge, this fact could have a chilling effect on the exercise of his rights under the Act. Furthermore, absent immunity from liability, employees facing employers with substantial resources and access to legal services might forego the civil rights charge rather than risk having to defend themselves in a retaliatory libel action with the attendant expenses and potential exposure to liability.

Protecting statements made in an EEOC charge with an absolute privilege precludes the plaintiff from prevailing in a libel action and therefore reduces the likelihood that an employer would institute such a suit to retaliate against the filing of a charge. In contrast, were the statements and the charge only protected by a conditional privilege, the person filing a charge would still be subject to liability if the employer could prove malice. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167.) The person seeking the conditional privilege would also have to satisfy certain other conditions: good faith on the part of the defendant, and interest to be upheld, a statement limited in scope to the extent of that interest, a proper occasion, and publication in the appropriate manner to appropriate parties. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167; Bond v. Pecaut (N.D. Ill. 1983), 561 F., Supp. 1037, 1039.) Thus, the libel suit could still be employed to chill utilization of the title VII mechanism because the employee would have to defend himself in a lengthy court battle. The uncertainty of the judicial outcome alone could dissuade the employee from exercising his rights.

Plaintiff argues, however, that an employer as well as an employee has an interest to be protected; his reputation. A conditional privilege, plaintiff contends, would provide the employer with some redress for clearly malicious defamations. However, persons defamed in pleadings or trial testimony are left without legal redress, even though their reputations may be damaged, because of the public policy favoring free and open administration of justice. (Prosser, Torts sec. 114, at 777 (4th ed. 1971).) The policy encouraging challenges to discriminatory practices is sufficiently strong to warrant denial of protection to employers defamed in charges of discrimination filed with the EEOC. While we conclude statements contained in a properly filed EEOC charge are protected by an absolute privilege, an employee is not entitled to protection for defamatory statements he makes either to third parties. or which he publishes outside of the proper channels. (Cf. Hasten v. Phillips Petroleum Co. (10th Cir. 1981), 640 F.2d 274, 279 (absolute privilege protecting employer from statements in employee discharge letter required by bargaining agreement is lost if the libelous statements are published “to persons beyond those who would necessarily require the communication pursuant to the bargaining agreement”).) This limitation of the absolute privilege protection will minimize any potential injury to employers caused by malicious employee statements.

Both parties discuss the relevance of section 704(a) of the Act (42 U.S.C. sec. 2000e — 3(a) (1976)), which prevents an employer from retaliating against an employee who files an EEOC charge. Plaintiff contends that the existence of this section makes groundless defendant’s fear that employees will be retaliated against for filing charges. In effect, plaintiff contends that section 704 renders the granting of an absolute privilege to statements in an EEOC charge duplicative and unnecessary. Defendant responds that section 704 does not afford exclusive protection and that statements in an EEOC charge should be absolutely privileged. We agree with defendant that the privilege protection and the protection provided by section 704 are distinct. As the EEOC is a quasi-judicial body, the absolute privilege protects the allegations in the charge irrespective of any other protection afforded by section 704.

Accordingly, we affirm the order of the circuit court of Du Page County.

Affirmed.

VAN DEUSEN and REINHARD, JJ., concur.


author: JUSTICE MILLER JUSTICE TRAPP,

text:
    CHAMPAIGN NATIONAL BANK, Trustee, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—83—0290
    Opinion filed June 27, 1984.

      TRAPP, J., dissenting.
    Waaler, Evans & Gordon, of Champaign, for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, and Phebus, Tum-melson, Bryan & Knox, of Urbana (Joseph W. Phebus and Jeffrey W. Tock, of counsel), for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff brought this action against defendant in ejectment and in forcible entry and detainer. The trial court found for defendant on all counts of plaintiff’s second amended complaint, holding that defendant was an assignee of a valid commercial easement in gross. In the alternative, the court held that recitals in the deeds under which plaintiff took title estopped it from maintaining this action against defendant. The court also granted defendant’s request for a declaratory judgment declaring that defendant has a perpetual easement on the subject property.

The defendant and the Illinois Central Railroad entered into an agreement dated January 24, 1955. By the terms of the agreement, the railroad granted the defendant a license to run its power lines and any necessary poles along its right-of-way. The agreement was terminable on 90 days’ written notice by the railroad. A new license agreement was entered into by the railroad and defendant on August 31, 1967, to accommodate defendant’s new 138 kilovolt lines. The terms of the new agreement were virtually indistinguishable from the previous agreement.

On May 16, 1979, the railroad executed and delivered four quitclaim deeds to plaintiff, who was acting as trustee for trust Nos. 030-626-089 and 030-742-902. Each of the four quitclaim deeds contained the following reservation:

“Grantor reserves the right for the continued maintenance, replacement and use of all existing conduits, sewers, water mains, gas lines, electric power lines, wires and other utilities and easements on said premises whether or not of record, including the repair, reconstruction and replacement thereof and Grantee agrees not to interfere with the rights herein reserved or any facilities used pursuant thereto.”

Defendant and the railroad entered into a “Longitudinal Easement Agreement” on July 28, 1980. The railroad granted defendant a perpetual easement for the purpose of constructing, operating and maintaining its power lines. The agreement specifically included any of defendant’s existing "facilities installed on the railroad’s right-of-way. The easement was to take effect upon approval by the Commerce Commission and payment by defendant of the final installment under the contract.

The Commerce Commission approved the agreement in an order dated October 29, .'1900. A check for the final installment was delivered by defendant to the railroad on December 22, 1980. The “Longitudinal Easement Agreement” was recorded on April 27, 1981.

The railroad executed and delivered four additional quitclaim deeds to plaintiff as trustee for the aforementioned land trusts on December 9, 1980. Each of those deeds contained the following two reservations:

“Grantor reserves for itself, its successors and assigns, an easement for its poleline together with all appurtenant fixtures necessary thereto as now located on, over and across the premises, with all reasonable right of entry for the purpose of constructing, replacing, repairing and maintaining the same, to have and to hold for as long as required for Grantor’s purposes.
* * *
GRANTOR reserves the right for the continued maintenance, replacement and use of all existing conduits, sewers, water mains, gas lines, electric power lines, wires and other utilities and easements on said premises whether or not of record including the repair, reconstruction and replacement thereof and Grantee agrees not to interfere with the rights herein reserved or any facilities used pursuant thereto.”

The real estate which is the subject of the dispute is a strip of land approximately 1,505.53 feet by 75 feet, lying between the Illinois Central Gulf railroad tracks and U.S. Route 45 in the southern portion of the city of Champaign.

Plaintiff, as trustee of the land trusts, filed a two-count complaint on November 10, 1981. Count I was an action for ejectment, and count II was an action in forcible entry and detainer. The complaint was later amended to include four counts, two in ejectment and two in forcible entry and detainer. Defendant answered, denying that plaintiff’s interest in the property was paramount to defendant’s interest and raised five affirmative defenses. An additional affirmative defense was allowed by leave to amend granted July 9,1982.

A hearing was held on July 9, 1982, and the trial court took the matter under advisement. On August 12, 1982, the trial court found for the defendant on all counts of plaintiff’s complaint and granted defendant’s request for declaratory judgment declaring that defendant had a perpetual easement for maintenance and repair of its lines and poles on the subject property. Plaintiff’s motion for reconsideration was denied and plaintiff appeals.

Four main issues are presented on appeal: (1) Did the trial court err in considering extrinsic evidence in interpreting the terms of the deed; (2) were defendant’s pleadings sufficient to raise the existence of an easement in gross; (3) what interest, if any, was reserved by the railroad in its deeds to plaintiff and was that interest transferable; and (4) does the doctrine of estoppel by deed apply?

Plaintiff contends that the trial court erred in considering extrinsic evidence on the question of the parties’ intent and should have considered only the language contained in the deeds themselves.

Historically, courts have applied the “four corners” or “plain meaning” rule when attempting to determine the intent of the parties in executing a document. A writing is presumed to speak the intention of the parties who signed it. Extrinsic evidence is not admissible on the question of intent unless the writing is found to be ambiguous. Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 186 N.E.2d 285; Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 360 N.E.2d 1115.

More recent cases have held, however, that if relevant evidence concerning the circumstances surrounding the execution of a document is offered, it generally should be admitted. (URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295; Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 359 N.E.2d 745.) The court said:

“ ‘Thus, relevant parol evidence is always admissible to assist in the determination of what the words used in an integrated writing mean; and the parol evidence rule is placed in its proper role of focusing interpretation on the meaning of the terms embodied in the writing and of rendering all evidence inoperative to vary those terms once their meaning has been discovered. Admitting evidence of prior negotiations and agreements for the purpose of discovering the meaning of the terms used in the integration does not violate the parol evidence rule. “Such testimony does not vary or contradict the written words; it determines that which cannot be varied or contradicted.” [Citing Corbin on Contracts sec. 579, at 421-422 (1960).]’ 437 F.2d 231, 234-35.” URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 235, 427 N.E.2d 1295, 1300.

In the case at bar, the central dispute between the parties concerns the reservations contained in the quitclaim deeds from the railroad to plaintiff. Defendant contends that the railroad intended to reserve an easement for the continued use and maintenance of defendant’s utility poles on the subject property. Plaintiff disagrees with defendant’s assessment. We hold that the trial court acted properly in admitting extrinsic evidence regarding the intent of the parties in executing and delivering the deeds in question. URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295.

Plaintiff next contends that defendant’s pleadings failed to properly raise the theory that an easement in gross was created by the reservations in the deeds and that the trial court had no basis for finding that defendant was possessed of a valid easement in gross.

Under section 2 — 612(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(b)), “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” Pleadings are to be construed liberally in order to do substantial justice. If the facts alleged and any reasonable infer-enees capable of being drawn from those facts demonstrate a possibility of recovery, the pleading is not subject to dismissal. Conyers v. Molloy (1977), 50 Ill. App. 3d 17, 364 N.E.2d 986.

Defendant’s first affirmative defense, while not expressly couched in terms of an “easement in gross,” informed plaintiff that defendant would seek to defeat plaintiff’s claim through reliance on the reservation contained in the quitclaim deeds. Also, plaintiff waived its objection to the sufficiency of the allegations of the existence of an easement in gross by not moving to strike the allegations contained in the affirmative defense or by not requesting a more specific statement. Where a complaint substantially but imperfectly states a cause of action, any defect is waived by answering without objection and proceeding to a trial on the merits, especially if the defect was curable by amendment. Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 382 N.E.2d 453; County of Winnebago v. Willsey (1970), 122 Ill. App. 2d 149, 258 N.E.2d 138.

By not attacking the pleadings filed by defendant and instead proceeding to trial, plaintiff has waived any objection to the sufficiency of the allegations by which defendant hoped to claim an express easement in gross. If necessary allegations were missing from the affirmative defenses, such defects were curable by amendment before trial. Plaintiff, by not raising the issue in a timely manner, denied defendant the opportunity to seek to amend its pleadings. Plaintiff should not now be heard to complain about the insufficiency of defendant’s pleadings.

Plaintiff argues that the 1955 and 1967 agreements gave defendant a bare license to enter the railroad’s property for the purpose of maintaining defendant’s utility lines. Those agreements were revocable after written notice. Revocability by the grantor-licensor distinguishes a license from an easement, which is an irrevocable grant of an interest in land. (Keck v. Scharf (1980), 80 Ill. App. 3d 832, 400 N.E.2d 503.) When the railroad executed and delivered the eight quitclaim deeds to plaintiff, it reserved an easement which protected the license it had granted the defendant. In order for the railroad to have reserved an easement for defendant, the reservation must have contained a grant to defendant, i.e., words of conveyance to Illinois Power. (See DuBois v. Judy (1920), 291 Ill. 340, 126 N.E. 104.) Plaintiff reaches the conclusion that, following the delivery of the deeds, the railroad possessed an easement allowing it to enter on plaintiff’s land for a specified purpose. Since no dominant estate clearly exists, plaintiff maintains that the easement reserved by the railroad was in gross and not an easement appurtenant. Waller v. Hildebrecht (1920), 295 Ill. 116, 128 N.E. 807.

Defendant does not disagree with plaintiff’s analysis up to that point. Defendant does assert, however, that the easement in gross reserved by the railroad in the quitclaim deeds is transferable. If the easement is not transferable, then, defendant has the status of a licensee and plaintiff, as successor to the railroad under the quitclaim deeds, could revoke the license on proper notice to defendant. If the easement is transferable, then defendant’s interest in the property is not subject to revocation by plaintiff.

Historically, easements in gross were deemed to be personal to the grantor and were not alienable. (3 R. Powell, Real Property sec. 419 (1952).) In Illinois, many of the cases categorically state that an easement in gross is nontransferable. Traylor v. Parkinson (1934), 355 Ill. 476, 189 N.E. 307; Messenger v. Ritz (1931), 345 Ill. 433, 178 N.E. 38.

Defendant contends that commercial easements in gross are alienable, but is unable to cite any Illinois case which directly passed on the question. In Schnabel v. County of Du Page (1981), 101 Ill. App. 3d 553, 428 N.E.2d 671, the court cited the general rule of nonas-signability of easements in gross, but also stated that a railroad may sell its right-of-way to another railroad so long as the grantee uses it for railroad purposes. In Northern Illinois Gas Co. v. Wienrank (1965), 66 Ill. App. 2d 60, 213 N.E.2d 411, the gas company obtained an “exclusive easement” for underground gas storage. By its own terms the easement was “perpetual and assignable to other authorized public utilities.” The court concluded that an easement for a public utility facility was assignable to another public utility, but cited no authority for that proposition.

Belusko v. Phillips Petroleum Co. (S.D. Ill. 1961), 198 E Supp. 140, involved a pipeline easement. The Federal court rejected plaintiff’s argument that the easement was nonassignable given the language of the contract and “a common sense recognition” that the rule of nonassignability has no place when commercial utility and railroad easements were at issue.

The commentators agree that an exception to the general rule of nonassignability should be recognized when the easement is a commercial easement in gross. Dean John Cribbet, in his book Principles of the Law of Property, writes:

“Since certainty is one objective of property law, the simplest rule is to ban all transfers of easements in gross. However, certainty has a way of conflicting with social utility at times and the merit of the English rule becomes questionable if B is a railroad company, a public utility, etc., rather than a private person. Why shouldn’t such vast commercial easements in gross be transferable like any other interest in land? American courts saw no reason to deny alienability generally and, while results have not always been consistent, they have made a case-by-case approach to the problem with satisfactory results. Most commercial easements in gross are readily assignable; ***.” (J. Cribbet, Principles of the Law of Property, 342 (2d ed. 1975).)

Easements in gross for railroads or for public utility purposes have been uniformly held to be alienable by modern American courts. (3 R. Powell, Real Property sec. 419 (1952).) The writers of the Restatement flatly state that commercial easements in gross are freely alienable. Restatement of Property sec. 489 (1944).

The weight of modern authority supports the position that commercial easements in gross are alienable, especially when the easements are for utility purposes. Therefore, we hold that the easement in gross reserved by the railroad in its quitclaim deeds to plaintiff was capable of being transferred.

Plaintiff also attacks the authorization granted by the Commerce Commission to the railroad to transfer a perpetual easement to defendant for utility purposes. Plaintiff maintains that the railroad and defendant fraudulently represented to the Commission that the railroad owned the land in question and that this fraud makes the easement agreement void ab initio.

The property covered by the “Longitudinal Easement Agreement” is the same property on which defendant has a license under the 1955 and 1967 agreements. The “Longitudinal Easement Agreement” also corresponds to the reservations in the deeds from the railroad to plaintiff. While the railroad did not own the entire fee underlying the easement at the time of the Commerce Commission hearing, that fact is not relevant to this case. The railroad did own a valid commercial easement in gross derived from the reservations in the deeds. The Commerce Commission approved the transfer as being in the public interest. Plaintiff’s claim of misrepresentation is not sufficient to void an otherwise valid transaction between the railroad and the defendant.

Given our holding with respect to the alienability of the railroad’s easement in gross, we need not reach the question of whether defendant should prevail under the doctrine of estoppel by deed. Therefore, we decline to decide whether the trial court erred in ruling that plaintiff was estopped from maintaining this action against the defendant.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE TRAPP,

dissenting:

I dissent from the opinion insofar as it finds that the railroad reserved an easement in favor of the defendants in the four quitclaim deeds delivered to plaintiff in May 1979. At that time defendant did not have an easement for its power line upon the railroad right-of-way, but at the most, a license which in essence was revocable at will. No easement from the railroad in favor of the defendant purports to have been created until July 28,1980.

If a grantor has actually created an easement in favor of another, his subsequent conveyance to another is declared subject to the easement so granted. Neither the railroad nor the defendant can equitably be permitted to transmogrify a revocable license into a perpetual easement by private transactions more than a year after the conveyances to the plaintiff.

An attempt to construe the quitclaim deeds as reserving an easement in the railroad cannot meet scrutiny. There was no purported easement granted to defendant until July 1980. Until the latter date, defendant could only claim a revocable license as against the railroad.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF JOHN P. CLARKE, Petitioner-Appellee, and ROBERTA J. CLARKE, Respondent-Appellant.
    Fourth District
    No. 4—83—0695.
    Opinion filed June 25, 1984.

      Michael B. Metnick, of Metnick & Barewin, of Springfield, for appellant.
    Henry C. Hagen, of Drach & Deffenbaugh, P.C., of Springfield, for appel-
   JUSTICE GREEN

delivered the opinion of the court:

We hold here that in a proceeding under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) a court does not have authority either (1) to order a spouse or the estate of that spouse to make maintenance payments for a period extending beyond the death of that spouse, or (2) to require that spouse to secure income in lieu of maintenance to the other spouse after death of the first spouse by making the other spouse or a trustee for the other spouse the beneficiary of (a) insurance policies on the life of the first spouse, or (b) other contracts payable at the death of the first spouse.

The instant proceeding began on July 7, 1982, when petitioner, John R Clarke, filed suit in the circuit court of Sangamon County seeking dissolution of his marriage to respondent, Roberta J. Clarke. On September 16, 1983, that court entered a judgment of dissolution which incorporated by reference a detailed property settlement agreement which included an order whereby petitioner was to pay respondent $3,500 per month in unallocated maintenance. The agreement provided for a certain cash payment by petitioner to respondent and determined the rights in the marital residence and certain investments. By the terms of the agreement petitioner was required to designate the parties’' minor daughters as primary beneficiaries of a $100,000 whole life insurance policy maintained by petitioner’s employer on petitioner’s life. The purpose for this transaction was stated to be to “assure [the daughters’] support and payment of their educational expenses through four years of college or vocational school.” Petitioner was given the option of designating a different beneficiary upon completion of the daughters’ schooling.

We need not explain the other provisions of the comprehensive plan. However, the parties were not able to agree upon all matters and, accordingly, provided in article XVIII of the agreement to “submit” certain matters, upon which they could not agree, “to the court for determination.” Significant on appeal is paragraph 2 which lists as a matter for determination, the following:

“Whether husband shall be ordered to provide any security to wife for the payment of the unallocated maintenance in the event of his death and, if so, whether the security should be: [any one of various term and whole life insurance policies on petitioner’s life] or *** designation as beneficiary on [petitioner’s] Deferred Compensation Contracts.”

Paragraph 2 also sought determination as to which party should pay the premiums on any policy used for security and as to how long that party should pay the premiums.

An evidentiary hearing was held on August 18, 1983, and, on September 16, 1983, a judgment was entered which dissolved the marriage, awarded joint custody of the parties’ two children, approved the property settlement, divided the property and, among other determinations, refused to order petitioner to give security to respondent for unallocated maintenance in the event of his death. Respondent has appealed contending that the court erred (1) in allegedly failing to award two life insurance policies to either party, and (2) in refusing to require the security for unallocated maintenance requested by respondent. We affirm.

The record clearly shows that the two life insurance policies in question, policies issued by Massachusetts Mutual Insurance Company having a total face value of $20,000 and a combined cash surrender value of $6,800, were awarded by the September 16, 1983, judgment to petitioner. We need give no further consideration to that contention.

In regard to respondent’s assertion that she was entitled to the security for unallocated maintenance, she maintains that: (1) the court had authority to award such maintenance, and (2) the court breached its discretion in refusing to do so. Because of our previously stated ruling that the court had no authority to make such an award, we need not consider whether a breach of discretion occurred.

The parties agree that, when sitting in a dissolution proceeding, a circuit court cannot properly exercise general equity powers (In re Marriage of Garrison (1981), 99 Ill. App. 3d 717, 425 N.E.2d 518), but must look to the Act for authority. At all times pertinent, section 510(b) of the Act has provided:

“(b) Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 501(b).)

Here, article III, paragraph 2 of the agreement expressly provides that the unallocated maintenance should cease upon the death of either party. Nevertheless, the parties’ reservation in article XVIII, paragraph 2 of the agreement of the issue of whether petitioner should be required to give security for post-death unallocated maintenance indicated their intention to seek a court determination as to whether unallocated maintenance beyond that agreed to could and should be awarded by the court.

Respondent maintains that section 510(b) provides authority for the court to order maintenance after petitioner’s death and to order petitioner to give security to enforce it. She interprets section 510(b) to authorize such maintenance if (1) “agreed to by the parties in a written separation agreement set forth in the judgment,” or (2) if “otherwise” ordered by the court. She contends that “approved” means the same as ordered and that the phrase “otherwise approved by the court” does not modify, in the alternative, the phrase “written separation agreement.” She contends that the section envisions a method of providing for post-death maintenance that is an alternative to that based on agreement of the parties.

We disagree. The word “approve” is defined by Black’s Law Dictionary as follows: “To be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another.” (Emphasis added.) (Black’s Law Dictionary 94 (5th ed. 1979).) The word is said to be distinguished from the word “authorize.” Within the context of section 510(b) there must be a preexisting “act” or “thing” for the court to approve. That “act” or “thing” is the agreement of the parties. The court’s authority in this case is not inherent. It arises only when there is a written agreement of the parties which either has been incorporated in the judgment and approved in that manner or “otherwise approved by the court.” Here, there was no such agreement. The court had no authority under section 510(b) to order unallocated maintenance beyond petitioner’s death.

It seems axiomatic that if the court has no authority to order maintenance that would extend beyond the death of the party obligated to pay the maintenance, the court has no authority to require security for the payment of maintenance after the death of the obli-gor. Moreover, it is questionable if the court has authority under the Act even to order security for maintenance accruing prior to death of the obligor. Prior to the Act, section 18 of “An Act to revise the law in relation to divorce” was in force and provided:

“In any order entered pursuant to this Section, the court may order the defendant to give reasonable security for such alimony and maintenance or such money or property settlement *** where a party willfully refuses to comply with the court’s order to pay alimony and maintenance or to perform such money or property settlement, or has shown himself unworthy of trust.” (Ill. Rev. Stat. 1975, ch. 40, par. 19.)

No such provision is contained in the present Act. The failure to include a provision for securing maintenance in the present Act, when repealed legislation contained such a provision, evinces an intent to withdraw the authority from the court to require such security. Goedde v. Community Unit School District No. 7 (1959), 21 Ill. App. 2d 79, 157 N.E.2d 266.

Respondent contends that by reserving for court decision the question of security for maintenance, the parties agreed to maintenance within the meaning of section 510(b). We cannot accept that construction. The reservation of the question for court determination is the antithesis of an agreement. Our action in construing the court’s authority in regard to maintenance more narrowly than its authority in regard to alimony under prior law is consistent with the lesser emphasis placed on maintenance under the Act. See Ill. Ann. Stat., ch. 40, par. 504, Historical and Practice Notes, at 524 (Smith-Hurd 1980).

In contrast to the lack of any indication in the Act that the court has authority to provide for maintenance after the death of the obli-gor or security for maintenance at any time, there is ample provision in that respect in regard to child support. Section 510(c) states:

“(c) Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment, to the extent just and appropriate in the circumstances, and such determination may be provided for at the time of the dissolution of the marriage or thereafter.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 510(c).)

Section 503(g) gives further authority to the court to provide for continuation of child support. It states:

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” (Ill. Rev. Stat. 1983, ch. 40, par. 503(g).)

Section 503 is designated “Disposition of property” and deals with that subject.

In the case of In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988, the court held that section 510(c) of the Act and the then section 503(d) (Ill. Rev. Stat. 1979, ch. 40, par. 503(d), now Ill. Rev. Stat. 1983, ch. 40, par. 503(g)) authorized the court to require a spouse who was ordered to provide child support to secure the continuation of such support by maintaining certain life insurance policies and naming the child as irrevocable beneficiary of such policies.

Respondent maintains that even if there is no authority under section 510(b) to require petitioner to furnish security and even though maintenance is not dealt "with in section 503(g), the general powers granted the court by section 503 to divide property authorize the court to order the security. She points out that nonvested pension plans having no present cash value have been held to be property within the meaning of section 503. (In re Marriage of Campise (1983), 115 Ill. App. 3d 610, 450 N.E.2d 1333; In re Marriage of Hobbs (1982), 110 Ill. App. 3d 451, 442 N.E.2d 629.) She then asserts that (1) even the term life insurance policy on petitioner’s life which has no present cash value should also be considered property within the meaning of section 503, and (2) an order by the court requiring that she be made beneficiary of such policy would be authorized by section 503.

Respondent contends that, as an alternative to requiring that she be the beneficiary of the one or more various instruments available for security, the court should order that a trustee be the beneficiary with directions to use the proceeds for her maintenance. She draws analogy to the provision of section 503(g) to secure child support and to the order in Dulyn. She would agree that any proceeds remaining upon her death, remarriage or other disqualification for maintenance could be disposed of according to petitioner’s prior direction.

We do not agree with respondent’s theory that section 503 would authorize the entry of the order she requests. Section 503(g) provides for an order in aid of payment of child support. Had the legislature intended a provision for a disposition of property in aid of an order for maintenance, it would have so provided. The drafters of the Act contemplated that division of property would reduce the requirement for maintenance. (See Ill. Ann. Stat., ch. 40, par. 504, Historical and Practice Notes, at 524 (Smith-Hurd 1980).) It seems highly unlikely that the legislature would have intended section 503 to be used as a vehicle to indirectly provide for security for maintenance after the death of the obligor when such maintenance could not directly be ordered pursuant to section 510(b).

We recognize that the unallocated maintenance included some child support. The parties have secured the child support obligation by the naming of the children as beneficiaries of a $100,000 life insurance policy. The child support obligation extends beyond the life of the obligor. (Ill. Rev. Stat. 1983, ch. 40, par. 510(c).) We have concluded that the obligation for maintenance does not so extend absent an agreement. Because no such agreement existed here, the trial court had no authority to order security for that nonexistent obligation.

Accordingly, we affirm.

Affirmed.

TRAPP and WEBBER, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    EVANGELICAL HOSPITAL ASSOCIATION, Plaintiff-Appellee, v. JOHN LOTUS NOVAK, County Treasurer and Ex-Officio County Collector of Du Page County, et al., Defendants-Appellants.
    Second District
    No. 2—83—0466
    Opinion filed June 27, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Pre-iner, Assistant State’s Attorney, and George J. Sotos, Special Assistant State’s Attorney, of counsel), for appellants.
    James A. Davids, William B. Weidenaar, and Joan E. Marcouiller, all of Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

John Lotus Novak, Du Page County treasurer and ex-officio collector (Du Page), appeals from a summary judgment that certain property of the Evangelical Hospital Association (EHA) is exempt from real estate taxation.

EHA is an Illinois not-for-profit corporation whose members consist of churches affiliated with the United Church of Christ; it owns and operates five hospitals in the Chicago area and is part of a corporation which operates a residential facility for senior citizens. It also owns and operates a school of nursing.

Prior to the early 1970’s the principal administrative functions of EHA were performed on the premises of one of its facilities. In an effort to centralize the location of administration to promote operating efficiency, the board of directors leased space in Oak Brook and in 1979 purchased the property which is the subject of this litigation. The single-story office building of 104,800 square feet is used exclusively by EHA as its corporate headquarters, from which it provides administrative and support services for its hospitals, school of nursing and senior citizens residence units.

On or about July 18, 1980, EHA filed an assessment complaint with one of the defendants, Du Page County board of review, seeking to have the property exempted from real estate taxation. On March 16, 1981, the Du Page County board of review denied exemption for the year 1980. The board of review found that the subject property did not provide any aspect of health care for the physical, mental or spiritual welfare of the general community, therefore that it should not be exempted from real estate taxation.

On April 20, 1981, EHA filed a complaint in chancery for a tax injunction seeking a decree that the real estate in question had been used for a purpose rendering it exempt from taxation. On May 22, 1981, while the above action was pending, EHA sent its payment of the first installment of the 1981 real estate taxes together with a letter of protest. Thereafter, on or about September 11, 1981, May 24, 1982, and August 30, 1982, EHA also sent tax installments along with protest forms. On March 22, 1982, EHA filed its first amended complaint and on September 22, 1982, filed its motion for summary judgment, and, after a hearing, the order was entered granting the motion.

In issue is whether the separation of the administrative functions from premises which otherwise would be considered exempt destroys the exemption.

The Revenue Act of 1939 exempts from taxation, “[a]ll property of institutions of public charity, all property of beneficent and charitable organizations *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit; ***.” (Ill. Rev. Stat. 1981, ch. 120, par. 500.7.) In order for property to be exempt from taxation it must (1) be owned by a charitable organization and (2) be exclusively used for charitable purposes. (Mason District Hospital v. Tuttle (1978), 61 Ill. App. 3d 1034, 1037.) The phrase “exclusively used” refers to the primary purpose for which the property is used, not to any secondary or incidental purpose. (Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 156; see also McKenzie v. Johnson (1983), 98 Ill. 2d 87, 98.) The party claiming the exemption has the burden of showing that the property clearly falls within a statutory exemption, and the exemption provisions must be strictly construed. (Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 155.) Courts have no power to create an exemption by judicial interpretation. (People ex rel. Baldwin v. Jessamine Withers Home (1924), 312 Ill. 136, 139.) Nevertheless, the determination of whether certain property is exempt from taxation requires the consideration of the particular factual situation presented. People ex rel. Goodman v. University of Illinois Foundation (1944), 388 Ill. 363, 370.

In the present case Du Page is not disputing that EHA was organized as a not-for-profit charitable corporation or that the hospitals, nursing school and senior citizen’s home which it owns and operates are charitable organizations. Its sole argument is that the subject property, which is used as plaintiff’s administrative headquarters, is not itself actually and exclusively used for such charitable or beneficent purposes and as such is not tax exempt. EHA contends that the administrative offices and storage space of the subject property are an integral part of, and reasonably necessary for, the accomplishment and fulfillment of EHA’s charitable objective, and points out that the property is used exclusively, not merely primarily, for the purpose of efficient administration of EHA. The county does not regard warehousing and administrative functions as charitable in nature but admits that if the warehousing and administrative activities were secondary uses at the other facilities they would be exempt.

I

We are not persuaded by the attempted distinction. The applicable decisions have focused on the use of the property, not on its location or proximity to other charitable or religious facilities it serves.

In People ex rel. Hesterman v. North Central College (1929), 336 Ill. 263, 266, the real estate in question was the property of a school located two blocks away and was devoted to dining hall and dormitory purposes. The court in upholding the tax exemption ruled that dormitories and dining halls used exclusively by students are an essential part of universities and colleges and are devoted to the purposes for which such institutions are organized. Similarly, in Southern Illinois University Foundation v. Booker (1981), 98 Ill. App. 3d 1062, 1074, the court found that, just as dormitories were an essential part of universities and colleges, so too were married student housing facilities necessary to the education of a married student. Consequently, the court concluded that such property should enjoy tax exempt status. Clubhouses and recreational facilities were also found to be necessary and proper in conducting an educational institution of the character of the University of Illinois. (People ex rel. Goodman v. University of Illinois Foundation (1944), 388 Ill. 363, 371.) The test applied in Mac-Murray College v. Wright (1967), 38 Ill. 2d 272, 278, was whether the property was primarily used for “purposes which are reasonably necessary for the accomplishment and fulfillment of the educational objectives, or efficient administration, of the particular institution.” (Emphasis added.) This test was reaffirmed in McKenzie v. Johnson (1983), 98 Ill. 2d 87, 99.

Defendant additionally argues that to qualify property for exemption from taxes the benefits must accrue to mankind directly and not merely as incidental benefits of a property’s use. Referring to the definition of “charity” set forth by the supreme court in Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 397-98, the county notes that there is no application of the property in question for the benefit of an indefinite number of persons, nor any act performed on the property which relieves bodies from disease suffering and constraint. A similar argument was presented in Association of American Medical Colleges v. Lorenz (1959), 17 Ill. 2d 125. There, the defendants argued that the property in question was not used exclusively for school purposes because it was not devoted to class work and the functions performed were primarily administrative and statistical. The court rejected this argument, stating:

“The functions to which plaintiff’s property is devoted are identical to those which would afford exemption if conducted separately by the member institutions. While exemption provisions must be strictly construed, and taxation upheld if there is any doubt about the matter [citations] there can be no doubt that the plaintiff’s services in improving educational standards meet the statutory test. Where the functions themselves qualify for exemption it does not matter that they are performed by a separate organization rather than by the respective member institutions. It is not the policy of the law to penalize efficiency or to favor duplication of effort. If ways of doing things have become outmoded or replaced by more efficient and realistic methods of management, the law will look to the substance, not to the mere forms.” 17 Ill. 2d 125, 129.

We conclude that the Oak Brook facility of the EHA is exempt from taxation as presently used.

II

Du Page also contends that the trial court lacked statutory authority to award interest to EHA for taxes paid under protest for the 1980 tax year, claiming that interest earned on protest funds invested inure to the benefit of the county corporate fund.

The position of the county would be supported by a fair reading of sections 194, 192a and 235 of the Revenue Act of 1939. (Ill. Rev. Stat. 1979, ch. 120, pars. 675, 673a, 716.) However, by an amendment effective January 1, 1982, section 194 now provides:

“Such amounts paid under protest and withheld from distribution shall be deposited by the collector in interest bearing accounts. If the final order of a court on the protest results in a payment to the taxpayer of all or a part of the taxes paid under protest and withheld, all or a proportional share of such interest earned during the pendency of the protest by the amount repaid to the taxpayer shall also be paid to the taxpayer. If the final order of a court on the protest results in a payment to the taxing districts of all or a part of the taxes paid under protest and withheld, the interest earned during the pen-dency of the protest by such taxes paid to the taxing districts shall be paid into the county treasury.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 120, par. 675.

EHA’s payments under protest were made in 1981, prior to the effective date of the amendment. We therefore conclude that the trial court erred in awarding interest to the taxpayer for payments made in 1981 for the 1980 tax year, interest, however, was correctly awarded to the taxpayer for the protest made in 1982 for the 1981 tax year. In re Application of Anderson (1984), 123 Ill. App. 3d 507, 513-14.

We reject EHA’s further argument that the trial court, under its power to do equity, is not bound by the statute and can properly award interest on all of the EHA’s refunded taxes. It has long been held that any power existing in a court of equity may not dispense with the plain requirements of a statute. Stone v. Gardner (1858), 20 Ill. 304, 309; see also, First Federal Savings & Loan Association v. Walker (1982), 91 Ill. 2d 218, 226-27; Evergreen Savings & Loan Association v. Barnard (1978), 65 Ill. App. 3d 492, 497.

That portion of the trial court’s order which awarded interest for the 1980 real estate taxes is reversed. In all other respects the judgment of the circuit court of Du Page County is affirmed.

Affirmed in part, reversed in part.

LINDBERG and HOPE, JJ., concur.