author: JUSTICE PERLIN

text:
    BERNIE BATES et al., Plaintiffs-Appellants, v. LITTLE COMPANY OF MARY HOSPITAL et al., Defendants.-(YALE INDUSTRIAL TRUCKS-GAMMON, INC., Defendant-Appellee.)
    First District (2nd Division)
    No. 81 — 1288
    Opinion filed July 20, 1982.

      Susan E. Loggans and Associates, of Chicago (Susan E. Loggans and Margaret M. O’Leary, of counsel), for appellants.
    Garbutt and Jacobson Associated, of Chicago (Jerome J. Jacobson and Michael D. Johnson, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiffs, Bernie Bates and Opal Bates, appeal the trial court’s order dismissing counts V and VI of their complaint at law against defendant, Yale Industrial Trucks-Gammon, Inc. (Yale Trucks), as being barred by the statute of limitations. For the reasons hereinafter stated, we affirm the trial court’s order.

On October 12, 1977, plaintiff, Bernie Bates, was employed as a materials handler at the South Works Blast Furnace operated by United States Steel. During the seven years he was so employed his duties included transporting materials within the plant using a Yale Forklift truck. On October 12, 1977, as Bates was driving the Forklift truck over a graded portion of the blast furnace which was in disrepair, the Forklift tipped over, spilling Bates onto the pavement and pinning him underneath the Forklift.

On May 2, 1980, Bernie Bates and Opal Bates filed a six-count complaint against defendant, Yale Trucks, and other defendants. In count V Bernie Bates claimed damages under the doctrine of strict liability in tort; in count VI his wife, Opal Bates, sought damages for loss of consortium. The Bates’ complaint alleged that when the Forklift left the control of Yale Trucks, it was in an unreasonably dangerous condition in that the Forklift was sold without a roll bar or other device to prevent the operator from falling out of or being injured by the vehicle. The complaint also claimed that there were inadequate warnings and instructions regarding the Forklift’s stability. In his complaint Bernie Bates averred that he first discovered the defective condition of the Forklift on November 15, 1979.

On July 19, 1980, Yale Trucks moved to dismiss the complaint on the ground that the action was barred by the statute of limitations. (Ill. Rev. Stat. 1979, ch. 83, pars. 15, 22.2.) The motion was based solely on the pleadings. On December 22, 1980, Bernie Bates filed an affidavit which stated that November 15, 1979, was the first time he discovered the defective nature of the product. On January 20, 1981, the trial court dismissed counts V and VI of plaintiffs’ second amended complaint against Yale Trucks as being barred by the statute of limitations.

Bernie Bates was injured on October 12, 1977, but did not bring an action against Yale Trucks until May 2, 1980, more than two years after the accident. Under section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15), “[a]ctions for damages for an injury to the person *** shall be commenced within two years next after the cause of action accrued ***.” The only provision in the Limitations Act which specifically applies to products liability actions states that “ *** subject to the provisions of subsections (c) and (d), no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period ***.” (Ill. Rev. Stat. 1979, ch. 83, par. 22.2(b).) The “applicable limitations period” referred to in section 21.2(b) (par. 22.2(b)) is section 14 of the Limitations Act, which requires this type of action to be commenced “within two years next after the cause of action accrued ***.” Thus, the dis-positive issue in this case is determining when Bates’ cause of action accrued.

Plaintiffs ask that we apply the “discovery rule” and hold that Bates’ cause of action accrued on November 15, 1979, when he was advised by his attorney that he had a right to sue Yale for a defect in the design of the Forklift truck, rather than on October 12, 1977, when the accident occurred. Defendant responds that the discovery rule is inapplicable and that Bates’ cause of action accrued on the date of the accident,

Traditionally, a plaintiff’s ignorance concerning his cause of action did not toll the statute of limitations. (See Lancaster v. Springer (1909), 239 Ill. 472, 481, 88 N.E.2d 272; Mosby v. Michael Reese Hospital (1964), 49 Ill. App. 2d 336, 199 N.E.2d 633.) The discovery rule represents the judiciary’s attempt to remedy this problem and “to alleviate what has been viewed as harsh results resulting from the literal application of the statute [of limitations].” (Knox College v. Celo-tex Corp. (1981), 88 Ill. 2d 407, 414, 430 N.E.2d 976.) The effect of the discovery rule, which was first adopted in Illinois in Rozny v. Marnul (1969), 43 Ill. 2d 54, 72-73, 250 N.E.2d 656, is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414.

The discovery rule “has been applied across a broad spectrum of litigation ***.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414.) Contrary to defendant’s argument, the rule has been held to apply to strict tort liability actions, like the one before us, seeking damages for personal injuries allegedly caused by defective products. (See Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) The rationale for invoking the discovery rule in products liability cases is that a “refusal to do so would emasculate much of the consumer protection afforded by Suvada [v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, wherein the Illinois Supreme Court extended the concept of strict liability to manufacturers and sellers of products whose defective condition makes them unreasonably dangerous to the user or consumer.]” Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 432.

The difficulty in applying the discovery rule has been in giving meaning to the term commonly used stating the rule, “knows or should have known of his injury.” Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414.

“If this phrase is construed to mean knows of one’s physical injury, the period commences to run at an earlier time than if it is construed to mean knows that one has a cause of action against a particular person. *** This court has *** adopted a construction of the rule which can be termed neither narrow nor expansive. That is, we have held that the event which triggers the running of the statutory period is not the first knowledge the injured person has of his injury, and, at the other extreme, we have also held that it is not the acquisition of knowledge that one has a cause of action against another for an injury he has suffered. Rather, we have held in Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, and Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, that the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15.

The term “wrongfully caused” must be viewed as a general or generic term and not a term of art. It does not mean that the plaintiff must have knowledge of a specific defendant’s negligent conduct or knowledge that an actionable wrong was committed. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415-16; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 170-71; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.) An injured person knows or should know that the injury was “wrongfully caused” when he “becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416.) This is usually a question of fact unless the facts are undisputed and only one conclusion may be drawn from them. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.

Notwithstanding the formulation of the discovery rule in Knox College, we note that the supreme court has repeatedly held that where a plaintiffs injuries are caused by a sudden traumatic event, the plaintiffs cause of action accrues when the injury occurred. In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305, the plaintiff was run over by a trenching machine he was operating and sued the manufacturer on a strict liability in tort theory. In Williams the limitations period was an issue. The defendant argued that a strict tort liability action for damages from a defective design should accrue at the time the product leaves the control of the manufacturer. The court found that section 14 of the Limitations Act was the applicable statute of limitations and held that a products liability “action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i.e., at the time when the injury occurred.” (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 432.) As defendant correctly points out, Williams and the instant case are similar in several respects. Both cases were based on the doctrine of strict liability in tort, both were brought by plaintiffs who were injured in sudden traumatic events and both involved plaintiffs who were injured by products in the form of machines which made direct physical contact with their bodies.

In Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550, the plaintiff filed a products liability action against the manufacturer and seller of birth control pills alleging that she had suffered a stroke as the result of the unreasonably dangerous nature of the pills. The plaintiff filed her action more than two years after her stroke, and the supreme court rejected her argument as to the time at which her action for strict tort liability accrued under section 14 of the Limitations Act.

“In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 432, it was stated, ‘we have held that an action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i.e., at the time when the injury occurred. [Citations.] ***’ (Emphasis added.) To avoid the possible unfavorable implication of Wil- Hams, plaintiff relies upon Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40, in which we held that a cause of action accrues in a medical malpractice case when a person knows or reasonably should know of his injury. See also Rozny v. Marnul (1969), 43 Ill. 2d 54, 72.
We find it unnecessary to consider at length plaintiff’s contention that her action in strict tort liability accrued on June 1, 1967, as alleged in her complaint. It asserts that on May 30, 1965, she suffered a cerebral vascular accident. Her reply brief candidly states that she ‘knew she was ill, that she had suffered a stroke and was partially and permanently paralyzed.’ However, she maintains that it was not until June 1, 1967, that she knew that Enovid was the cause of this condition. From plaintiff’s description of the severity of her condition in the complaint and her reply brief it is inconceivable that her injury was not occasioned by a traumatic event and that she knew of this injury more than two years prior to the filing of her complaint.
We conclude that the requirement of section 14 of the Limitations Act was not fulfilled and recovery under count II is barred.” Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 558-59.

In Nolan, which was relied on in Knox College, the court cited Williams and Berry with approval and, quoting from Williams, said “[W]e have held that an action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i.e., at the time when the injury occurred.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 166.) The court reiterated its earlier holdings in Williams and Berry regarding the strict tort liability counts stating that “the statute was held to commence to run when the plaintiffs knew or should have known of their injuries, which were suffered as part of traumatic events.” (85 Ill. 2d 161, 167.) Neither Knox College nor Nolan involved a sudden traumatic event, and the Nolan opinion took cognizance of this difference: “We need next consider the precise extent of the discovery rule in a case such as the instant one, where the injury involved did not arise out of a ‘sudden traumatic event.’ ” Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161,169.

Based on the foregoing, it appears that where injuries are suffered as part of a sudden traumatic event, the statute of limitations begins to run when the plaintiff first knew of his right to sue, i.e., at the time when the injury occurred. Under the applicable case law, therefore, count V of plaintiffs’ complaint seeking damages for Bemie Bates’ injuries which arose out of a sudden traumatic event was required to have been brought within two years of the accident. The action was not brought within two years and was properly dismissed. Since count V was not brought within the applicable period of limitations, count VI, in which Opal Bates alleged loss of consortium because of the injuries to her husband, was also time-barred. Ill. Rev. Stat. 1979, ch. 83, par. 15.1.

For the foregoing reasons, the order of the circuit court of Cook County dismissing counts V and VI of plaintiffs’ complaint is affirmed.

Affirmed.

STAMOS, P. J., and DOWNING, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. RICHARD A. HERBERT, M.D., Respondent-Appellant.
    First District (2nd Division)
    No. 81 — 1798
    Opinion filed July 20, 1982.

      James I. Marcus, of Chicago (Williams & Marcus, Ltd., of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Michael B. Wein-stein and Michael J. Brennan, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Respondent Richard A. Herbert, M.D., a physician licensed to practice medicine in the State of Illinois, was held in contempt of court for failure to comply with a subpoena duces tecum issued by the Cook County grand jury seeking production of certain medical records. In this court, and previously in the circuit court, respondent contends that the material requested in the subpoena is protected by both the self-incrimination clause of the fifth amendment and the physician-patient privilege.

The Cook County grand jury, in an investigation conducted by the Illinois Attorney General, issued a subpoena naming respondent as a target of the grand jury investigation and requested production of “any and all original records of treatment, examination, prescriptions, and visits which were generated and/or acquired by [respondent] for the period of January 1, 1979 through and including December 31, 1979, for those patients whose names and dates of birth are listed on the attached Rider *** who were Public Aid recipients and for whom [respondent] billed under the Illinois Medicaid Program of the State of Illinois.” The rider listed 46 names.

Subsequently, agents from the Illinois Department of Law Enforcement (IDLE) obtained the signatures of all persons listed on the rider on the following form, entitled “Authorization for Release of Medical Information”:

“I, _, do hereby authorize full disclosure of all medical records concerning myself and minor children in my custody to any duly authorized agent of the Office of the Attorney General of the State of Illinois, or the Illinois Department of Law Enforcement, whether the said records are of a private, public, or confidential nature.
The intent of this authorization is to give my consent for full and complete disclosure of medical treatment that may have been performed by or may pertain to services rendered to myself, minor children in my custody by hospitals, clinics, physicians, dentists, and the U.S. Veteran’s Administration.
I have read and fully understand the contents of this ‘Authorization for Release of Medical Information.’ ”

The two agents who obtained the signatures testified at the contempt hearing in the circuit court that they read and explained the form to each person who signed it, and that all persons signed the authorization in the presence of the agents. Although counsel for respondent was granted a continuance so that he could have an opportunity to call witnesses regarding the authorization forms, none testified.

The circuit court found respondent in contempt of court and ordered him incarcerated until he purged himself of contempt. The order of incarceration was stayed pending appeal.

I

Respondent initially contends that the self-incrimination clause of the fifth amendment protects him from the disclosure sought by the subpoena. The fifth amendment to the United States Constitution provides, in pertinent part, “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” This clause is applied to the States through the fourteenth amendment. (Malloy v. Hogan (1964), 378 U.S. 1, 8, 12 L. Ed. 2d 653, 659-60, 84 S. Ct. 1489, 1493-94.) The State argues that the “required records” exception to that clause applies here, and thus respondent is not protected by the fifth amendment. The circuit court, apparently holding that the “required records” exception applied, held that respondent could not assert the fifth amendment privilege.

Initially, we note that the fifth amendment protects the business records of a sole proprietor from compulsory disclosure to the grand jury. (Bellis v. United States (1974), 417 U.S. 85, 87-88, 40 L. Ed. 2d 678, 683, 94 S. Ct. 2179, 2182-83.) Respondent conducted his practice as a sole proprietor. The required records exception to the fifth amendment was first recognized in Shapiro v. United States (1948), 335 U.S. 1, 92 L. Ed. 1787, 68 S. Ct. 1375, and refined in Grosso v. United States (1968), 390 U.S. 62, 67-68, 19 L. Ed. 2d 906, 912, 88 S. Ct. 709, 713. Essentially, the exception holds that where an individual is required by the government to keep records, those records are subject to disclosure if the following three factors exist: (1) the purpose of the record keeping requirement must be essentially regulatory; (2) the records must be of a kind customarily kept; and (3) the records themselves must have assumed public aspects.

The State contends that the records requested by the subpoena are required to be kept by the statutes and regulations governing the operation of the Medicaid system in Illinois. The State further contends that these records satisfy the requirements of Grosso.

The rules and regulations of the Illinois Department of Public Aid (DPA) must satisfy minimum Federal standards described in title XIX of the Social Security Act, commonly referred to as Medicaid. The Federal records requirements of the Social Security Act (42 U.S.C.A. sec. 1396(a) (1982 Supp.)) state in relevant part:

“(a) A State plan for medical assistance must—
* * *
(27) provide for agreements with every person or institution providing services under the State plan under which such person or institution agrees (A) to keep such records as are necessary fully to disclose the extent of the services provided to individuals receiving assistance under the State plan, and (B) to furnish the State agency or the Secretary with such information, regarding any payments claimed by such person or institution for providing services under the State plan, as the State agency or the Secretary may from time to time request ***.”

The Federal requirement is implemented through section 5 — 5 of the Illinois Public Aid Code, which provides in part:

“All dispensers of medical services shall be required to maintain and retain business and professional records sufficient to fully and accurately document the nature, scope, details and receipt of the health care provided to persons eligible for medical assistance under this Code, in accordance with regulations promulgated by the Illinois Department. The rules and regulations shall require that proof of the receipt of prescription drugs, dentures, prosthetic devices and eyeglasses by eligible persons under this Section accompany each claim for reimbursement submitted by the dispenser of such medical services. ***” Ill. Rev. Stat. 1979, ch. 23, par. 5-5.

The Department of Public Aid has promulgated the following regulation:

“Sec. Ill Requirement
Requirements for providers approved for participation include but are not limited to the following:
* * *
(11) Maintenance and retention of business and professional records sufficient to fully and accurately document the nature, scope and details of the health care provided.” Medical Assistance Handbook, section I, ch. 100, sec. 111(11).

Finally, DPA form 132, which a physician submits to the Department for payment contains the following certification: “I hereby agree to keep such records as are necessary to disclose fully the extent of services provided to individuals under Title XIX of the Social Security Act and to furnish information regarding any payments claimed as the State Agency may request.” Respondent filed a number of these forms with the Department and received payment for services rendered.

It is thus obvious that respondent was required to maintain a certain type of record by virtue of his participation in the Medicaid program. There is no evidence in the record that the records sought by the subpoena were not required to be maintained under the Medicaid program. We therefore conclude that the subpoena seeks the production of records which are required to be maintained, and therefore are required records.

Once this initial question is answered, we must determine whether the three-pronged test of Grosso is satisfied. (See People v. Mileris (1981), 103 Ill. App. 3d 589, 594, 431 N.E.2d 1064.) If this test is satisfied, then the “required records” exception applies. Respondent concedes that his medical records are of a type customarily kept by him, but vigorously contends that the other two prongs are not satisfied.

Next, we consider whther the purpose of the record keeping requirement is essentially regulatory. Respondent argues that because his records are sought by a grand jury investigating him for possible criminal violations, the reason for which his records are sought is not regulatory. Respondent is improperly attempting to shift the focus away from the purpose for which the records are required to be kept to the purpose for which they are sought. The purpose of the record keeping requirement here is to monitor the operation of the Medicaid program, not to catch criminals. This contrasts to the wagering reporting requirement struck down in Marchetti v. United States (1968), 390 U.S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697. We cannot say that the class of all doctors participating in the Medicaid program is a “ ‘selective group inherently suspect of criminal activities.’ ” Marchetti v. United States (1968), 390 U.S. 39, 57, 19 L. Ed. 2d 889, 903, 88 S. Ct. 697, 707; Albertson v. Subversive Activities Control Board (1965), 382 U.S. 70, 15 L. Ed. 2d 165, 86 S. Ct. 194; In re Grand Jury Proceedings (5th Cir. 1979), 601 F.2d 162, 168.

Our conclusion that this record keeping requirement is essentially regulatory is buttressed by reference to In re Grand Jury Proceedings (5th Cir. 1979), 601 F.2d 162; United States v. LaPage (N.D.N.Y. 1977), 441 F. Supp. 824, and United States v. Cubeta (D. Conn. 1979),369 F. Supp. 242. In each of these cases, required records were used against the defendant in criminal proceedings. However, the pur-' pose of the record keeping requirement was, in each case, essentially regulatory. (In re Grand Jury Proceedings (customs regulation); LaPage (health and disease control); Cubeta (gun control).) Accordingly, we hold that this prong of the Grosso test is satisfied.

The final prong which must be satisfied by the State is that “the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents.”) Grosso v. United States (1968), 390 U.S. 62, 68, 19 L. Ed. 2d 906, 912, 88 S. Ct. 709, 713.) Since these records may be inspected by officials of the Department of Public Aid for documentation of claims and analysis of the operation of the Medicaid system, we conclude that they have assumed “public aspects.” See People v. Mileris (1981), 103 Ill. App. 3d 589, 594; United States, v. Cubeta (D. Conn. 1974), 369 F. Supp. 242, 244.

In summary, we hold that respondent cannot assert the privilege against self-incrimination because of application of the “required records” exception to that privilege, provided that the records requested by subpoena are limited to those required to be maintained by law. With this proviso, we affirm the holding of the circuit court.

II

Respondent also contends that the medical records are protected from disclosure by the physician-patient privilege (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 802), which provides in relevant part: “No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient, except only *** (3) with the expressed consent of the patient *** JJ

The State contends that execution of the forms entitled “Authorization for Release of Medical Information” by the patients constituted waiver of the privilege. Respondent argues that these forms do not constitute sufficient waivers because they are overly general and broad in scope. Resolution of this issue requires the accommodation of two competing interests: the interest of the patient in confidentiality, and the interest of the public in the grand jury obtaining all relevant information. See People v. Bickham (1982), 89 Ill. 2d 1, 5-6, 431 N.E.2d 365; see generally Parkson v. Central DuPage Hospital (1982), 105 Ill. App. 3d 850, 854, 435 N.E.2d 140.

The General Assembly has recognized the patient’s interest in maintaining confidentiality in dealings with a physician by its creation of the physician-patient privilege. (People v. Bickham (1982), 89 Ill. 2d 1, 6.) The purpose of the privilege is to encourage free disclosure between the physician and the patient, and to protect the patient from the embarrassment and invasion of privacy that disclosure would entail. (People v. Bickham (1980), 90 Ill. App. 3d 897, 901, 414 N.E.2d 37, aff'd (1982), 89 Ill. 2d 1, 431 N.E.2d 365.) The privilege exists for the protection of the patient. 81 Am. Jur. 2d Witnesses sec. 231 (1976).

In conflict with the patient’s interest in confidentiality is the public’s interest, recognized by the courts, in “maintaining the breadth of the grand jury’s power to conduct investigations regarding criminal violations.” (People v. Bickham (1982), 89 Ill. 2d 1, 5-6, citing People v. Dorr (1970), 47 Ill. 2d 458, 462, 265 N.E.2d 601, cert, denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527.) Generally, “ ‘the public ... has a right to every man’s evidence.’ ” (Branzburg v. Hayes (1972), 408 U.S. 665, 688, 33 L. Ed. 2d 626, 644, 92 S. Ct. 2646, 2660.) The purpose of the grand jury’s investigation is not only to cause the prosecution of the guilty, but also to protect the innocent from unfounded criminal prosecutions. (Branzburg v. Hayes (1972), 408 U.S. 665, 686-87, 33 L. Ed. 2d 626, 643, 92 S. Ct. 2646, 2659.) Society’s interests are thus best served by a thorough and broad investigation. The grand jury must pursue all available clues and examine all witnesses. The “investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.” (Branzburg v. Hayes (1972), 408 U.S. 665, 701, 33 L. Ed. 2d 626, 651, 92 S. Ct. 2646, 2667.) The investigation must of necessity be broad in scope.

We must conclude, in light of these principles, that the forms entitled “Authorization for Release of Medical Information” constituted valid waivers of the physician-patient privilege in accordance with section 8 — 802(3) of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 802(3).) These authorizations were read and explained to each patient, and were signed in the presence of IDLE agents who testified in court and were subject to cross-examination by respondent. Respondent was unable to produce any evidence to suggest that the authorizations were anything but intelligent and voluntary waivers of the physician-patient privilege. A contrary ruling would unduly restrict the broad powers of the grand jury. Accordingly, the circuit court correctly held that the physician-patient privilege did not protect from disclosure the medical records sought by the subpoena.

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

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.

      Prior to July 1, 1982, this statutory provision was codified as ch. 51, par. 5.1. No substantive change was made by the recodification.

      For a discussion of the competing interest, .see our decision People v. Florendo (1981), 95 Ill. App. 3d 601, 420 N.E.2d 506, appeal allowed (1982), 88 Ill. 2d 552.


text:
    FARMERS INSURANCE GROUP, Plaintiff-Appellant, v. BRENDA NUDI, Defendant-Appellee.
    First District (2nd Division)
    No. 81 — 2094
    Opinion filed July 20, 1982.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson and Thomas M. Hamilton, of counsel), for appellant.
    Law Offices of John L. Cifelli & Associates, Ltd., of Chicago (Luciano Panici, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Farmers Insurance Group (Farmers) brought a declaratory judgment action seeking a determination that Brenda Nudi (Brenda) was not entitled to uninsured motorist benefits under the insurance policy owned by her husband, Raymond Nudi (Raymond). Brenda responded, and both parties then moved for judgment on the pleadings pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). Brenda prevailed, and Farmers appealed. The sole issue presented for our review is whether interspousal tort immunity precludes Brenda’s claim against Farmers for uninsured motorist benefits under Raymond’s policy.

For the reasons which follow, we affirm.

On August 20, 1978, Brenda sustained injuries when a motorcycle operated by Raymond on which she was a passenger left the road. On October 17, 1979, Brenda sued Raymond alleging that his negligent operation of the motorcycle caused her injuries. This lawsuit was subsequently dismissed with prejudice, the court holding that interspousal tort immunity barred Brenda’s action against Raymond. Ill. Rev. Stat. 1979, ch. 40, par. 1001.

Following the dismissal of her lawsuit Brenda brought a claim against Farmers for uninsured motorist benefits under Raymond’s policy. Under the uninsured motorist clause in the policy, Farmers agreed:

“To pay all sums which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injury sustained by the insured caused by accident, and arising out of the ownership, maintenance, or use of such uninsured motor vehicle.” (Emphasis added.)

Farmers conceded that because of a household exclusion provision in the policy, Raymond was considered an uninsured motorist as to any accident which injured a family member. Nevertheless, Farmers denied Brenda’s claim for uninsured motorist benefits and filed a declaratory judgment action. The company contended that the uninsured motorist benefits under Raymond’s policy were not payable unless the owner-operator of the vehicle (Raymond) was “legally responsible to pay” damages to the claimant (Brenda); that interspousal tort immunity barred Brenda’s action against Raymond; and that because inter-spousal immunity barred Brenda’s lawsuit against Raymond, Raymond was not legally responsible to pay damages to her and, consequently, neither was Farmers. The trial court rejected Farmers’ argument, and Farmers now presents the same argument to this court.

At issue in" the instant case is the nature of the interplay of inter-spousal tort immunity and uninsured motorist insurance. A brief historical review of the interspousal tort immunity doctrine as it has developed'in Illinois appears to be in order.

In 1953 the Illinois legislature amended “An Act to revise the law in relation to husband and wife” to provide that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Now codified at Ill. Rev. Stat. 1979, ch. 40, par. 1001.) The effect of the amendment was to reestablish what had been the common law rule of interspousal tort immunity. In interpreting the amendment the Illinois Supreme Court construed the immunity as a substantive bar to personal injury litigation between spouses. (See Wartell v. Formula (1966), 34 Ill. 2d 57, 60, 213 N.E.2d 544; Hecken-dorn v. First National Bank (1960), 19 Ill. 2d 190, 193, 166 N.E.2d 571.) In Heckendorn the court found that the intent of the amendment was to “prevent a cause of action” for torts committed during coverture “from coming into being.”

Recently, in a case similar to the one before us, the Illinois Supreme Court held that a third-party insurance company cannot rely upon interspousal tort immunity as a defense to an action brought by one spouse seeking to recover for injuries under the other spouse’s uninsured motorist provision. (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528.) The court stated that “the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390.) Allstate represents a departure from the way in which the court previously construed the interspousal tort immunity doctrine. The immunity is now seen as a procedural, not a substantive, bar to actions between spouses. Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236.

The import of the procedural/substantive distinction is that where the immunity is regarded as a substantive bar, it prevents a cause of action from accruing. A third party may therefore invoke the immunity as a defense to an action by the injured party. (See Markham v. State Farm Mutual Automobile Insurance Co. (10th Cir. 1972), 464 E2d 703 (applying Oklahoma law); Guillot v. Travelers Indemnity Co. (La. App. 1976), 338 So.2d 334.) Where, as in Illinois, the immunity is regarded as a procedural bar, it merely precludes enforcement of a remedy. Procedural immunity is personal to the spouse and does not inure to the benefit of third parties. Hettel v. Rye (1972), 251 Ark. 868, 475 S.W.2d 536; DeLuca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482; Annot., 73 A.L.R.3d 632, 651-53 (1976), and cases cited therein.

In Allstate the wife and daughter of the insured were injured as a result of the insured husband’s negligent operation of his automobile. The wife sued the insurer directly for uninsured motorist benefits. The uninsured motorist provision in Allstate stated that:

“Allstate will pay all sums which the insured *** shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile ***.” (Emphasis added.)

Allstate’s position parallelled the position taken by Farmers in the instant case. Allstate argued that the language of its policy denied uninsured motorist benefits to claimants who were not “legally entitled to recover” from the insured. Since interspousal tort immunity barred the wife’s tort claim against her husband (the insured), Allstate contended that she was not “legally entitled to recover” from him and, therefore, that she was not able to recover under her husband’s uninsured motorist provision.

After a review of authorities from other jurisdictions, the Allstate court concluded “that recovery had been permitted when the claimant shows conduct on the part of the tortfeasor spouse which would entitle claimant to recover damages even though a defense available to the tortfeasor would defeat actual recovery.” (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 389.) The court ruled that interspousal tort immunity was personal to the spouse and was unavailable to a third party such as the insurer. As a consequence, the insurer could not raise this defense to avoid paying the claimant spouse.

The Allstate court then looked to the insurance contract itself. The court interpreted the words “legally entitled to recover” to mean:

“*** that the claimant must be able to prove the elements of her claim necessary to entitle her to recover damages. That the tortfeasor uninsured motorist in an action brought against him might be in a position to invoke a defense of limitation or some form of statutory immunity is relevant to the question of the right to enforce payment, but does not affect the claimant’s legal entitlement to recovery.” (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390.)

Finally, the Allstate court found that in executing the insurance contract, it could not have been the intent of the parties “that the [family] exclusion [clause] invoke the uninsured motorist coverage and at the same time preclude recover by the injured spouse on the basis of statutory interspousal immunity.” Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 391.

Allstate differs from the instant case only in regard to the language of the respective uninsured motorist provisions. In Allstate the insurance contract provided that the claimant was entitled to uninsured motorist benefits only if she “would be legally entitled to recover from the insured.” In the instant case the Farmer’s policy states that the company is liable for uninsured motorist benefits only if the insured “would be legally responsible to pay *** damages” to the claimant. While Farmers argues that this difference in language is substantive, we consider it to be semantic.

Essentially Farmers’ argument is that by virtue of the language of the uninsured motorist provision of Raymond’s policy the company “stands in the shoes” of its insured, Raymond. Under this theory the defenses available to Raymond would inure to Farmers, and the company could assert the defense of interspousal tort immunity to deny Brenda’s claim. As our foregoing discussion indicates, however, inter-spousal immunity is, by its nature, personal to the spouse and is unavailable as a defense to third parties. We do not believe that the nature of interspousal tort immunity can be transformed by the language of an insurance policy. Brenda’s action here is a direct contract action against Farmers, and the inability of one spouse to recover against the other in tort has no applicability. See Allstate Insurance Co. v. Elkins (1978), 63 Ill. App. 3d 62, 381 N.E.2d 1.

Farmers relies heavily on a portion of the Allstate opinion in which our supreme court discussed a Missouri appellate court case, Noland v. Farmers Insurance Exchange (Mo. App. 1967), 413 S.W.2d 530. In Noland the Missouri court held that interspousal tort immunity barred the wife’s claim for uninsured motorist benefits under her husband’s policy where the policy contained the same language as that contained in the policy now before us. In distinguishing Noland, the Allstate court stated that “the distinction between a policy provision for payment of sums which the insured ‘shall be legally entitled to recover’ and one which provides for payment of those sums which the uninsured motorist ‘would be legally responsible to pay’ is readily apparent, and we do not find Nolan[d] persuasive.” (Emphasis added.) Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390.

While we recognize that the facts in Noland are similar to those in the instant case, we note that Missouri law regards tort immunity as a substantive bar to actions between spouses. (Oates v. Safeco Insurance Co. of America (Mo. 1979), 583 S.W.2d 713; Edwards v. State Farm Insurance Co. (Mo. App. 1978), 574 S.W.2d 505; Noland v. Farmers Insurance Exchange.) In Missouri, therefore, the defense of interspousal tort immunity inures to the benefit of third parties while in Illinois it does not. Thus, Missouri’s interspousal tort immunity doctrine differs from ours, and accordingly, we find, as did our supreme court, that Noland is unpersuasive.

In our view the Farmers language (legally responsible to pay) and the Allstate language (legally entitled to recover) merely represent different verbalizations of the scope of the respective uninsured motorist provisions. We find no substantive differences between the Allstate language and the language in the instant case. In accordance with Allstate we affirm the trial court’s judgment that in-terspousal tort immunity does not bar Brenda’s claim against Farmers for uninsured motorist benefits under Raymond’s policy.

Affirmed.

SEAMOS, P. J., and DOWNING, J., concur.


author: JUSTICE McNAMARA

text:
    REYNOLDS METALS COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (3rd Division)
    No. 81 — 3113
    Opinion filed July 21, 1982.

      Clifton A. Leke and Edward P. Kenney, both of Rooks, Pitts, Fullagar and Poust, of Chicago, for petitioner.
    Tyrone Fahner, Attorney General, of Chicago (William E. Blakney, Assistant Attorney General, of counsel), for respondents.
   JUSTICE McNAMARA

delivered the opinion of the court:

Pursuant to section 35 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. IllV2, par. 1035), petitioner Reynolds Metals Company initiated this action by filing a petition with respondent Illinois Pollution Control Board seeking a variance from compliance with certain solid waste regulations adopted by the Board with regard to sanitary landfills. After hearings, the Board dismissed the petition for variance and denied Reynolds’ subsequent petition for rehearing. Reynolds appeals from both orders, contending that the Board’s dismissal of its petition for variance was invalid in that it was based on an erroneous interpretation of the Act. Reynolds asserts further that, had the Board considered the merits of the case, the manifest weight of the evidence would have demonstrated that it was entitled to an unconditional variance.

Reynolds owns and operates a plant for the fabrication of aluminum metal and aluminum alloys. On the same site, it leases an abandoned limestone quarry in which it disposes of solid wastes generated from the plant. Reynolds sought a variance from Rules 303, 305(a) and 305(b) of the Board’s solid waste regulations which require certain cover and operational standards with respect to sanitary landfills “[u]nless otherwise specifically provided by permit.” The Board is authorized to grant individual variance from its rules whenever it is shown that compliance would cause arbitrary or unreasonable hardship. (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1035.) Reynolds asserts that such hardship would result from its compliance with these rules in that it would necessitate significant expenditures with no corresponding environmental benefit.

In response to Reynolds’ variance petition, the Illinois Environmental Protection Agency filed a recommendation in which it urged the Board to deny the variance or, in the alternative, to grant the variation with seven conditions. After negotiation, Reynolds agreed to all but two of the conditions.

After hearings, the Board denied the variance, finding that Reynolds had failed to obtain a permit as required by section 21(d) of the Act. (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1021(d).) Where a permit specifies standards for operation and cover which differ from those normally imposed by Board rules, compliance with Board rules is not required. The Board reasoned, therefore, that since the agency might yet issue Reynolds an acceptable permit upon proper application, Reynolds had failed to establish an arbitrary or unreasonable hardship.

On appeal Reynolds contends that it is not subject to the Act’s permit requirements and that the Board’s decision was therefore invalid because it was based on an erroneous interpretation of section 21(d). At the time of the Board’s decision and prior to September 3, 1981, section 21(d) provided:

“No person shall:
* * *
(d) conduct any refuse-collection or refuse-disposal operations, except for refuse generated by the operator’s own activities, without a permit granted by the Agency upon such conditions, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with regulations adopted thereunder, after the Board had adopted standards for the location, design, operation, and maintenance of such facilities. The above exception shall not apply to any hazardous waste, except that the exception shall apply to any person engaged in agricultural activity who is disposing of a substance which would normally be classified as hazardous if the substance was acquired for use by that person on his own property.” (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1021(d).)

On September 3, 1981, the section was amended to limit the exception for wastes generated by the operator’s own activities to those which are “stored, treated, disposed or transported within the site where such wastes are generated.” (Ill. Rev. Stat. 1981, ch. 1111/2, par. 1021(d)(1).) Reynolds argues that because the wastes in question are both generated and disposed on the site, it clearly comes within the exception under both the original and amended versions of the Act.

While noting that an on site landfill of this type would ordinarily fall within the exception, the Board found that “[t]he amounts of refuse involved *** [were] too great and the site too unsound to allow such a site to be exempted from the Agency oversight which is inherent in the Agency’s permitting program.” Finding Reynolds’ quarry “to present a real potential for serious environmental harm,” the Board determined that it was not the type of activity envisioned by the legislature when it enacted this exception to its permit requirement.

The Board’s determination that such potential harm exists was a factual one involving consideration of matters strictly within its expertise. Accordingly, it is appropriate that this court not substitute its judgment for that of the Board but merely determine whether its decision was reasonable in light of the evidence. Tri-County Landfill Co. v. Pollution Control Board (1976), 41 Ill. App. 3d 249, 353 N.E.2d 316.

Reynolds’ landfill covers 3x/2 acres and ranges in depth from 80 to 85 feet. From 1970 through 1979, wastes disposed of in Reynolds’ landfill included construction waste, banding iron, fluxing tubes, and sludge. Although materials were deposited prior to 1970, Reynolds offered no evidence as to their nature or characteristics. At the time the petition was filed, Reynolds was disposing of approximately 50 truckloads of construction waste per day. By the time of the second hearing the number of truckloads had been reduced to five.

Rule 303, from which Reynolds seeks a variance, requires that waste be deposited at the toe of the fill and spread and compacted into cells no more than two feet thick. Rule 305(a) requires six inches of daily cover, and Rule 305(b) requires 12 inches of intermediate cover in all areas where no refuse will be deposited within 60 days. The layer of material between the cells is to prevent transmission of water. Reynolds does not comply with the requirements; it merely pushes the refuse over the edge.

David Hendron, an expert in hydrogeology, testified that Reynolds produces very small amounts of leachate and that, despite its failure to comply with the rules, the water was of drinking quality Leachate is groundwater which might be contaminated by materials from the landfill. The absence of groundwater contamination by leachate from Reynolds’ landfill, however, is due to the influence of dewatering operations conducted by Material Service Corporation which operates a large quarry adjacent to that of Reynolds. Dr. Rauf Pishkin, an expert witness testifying for the Board, predicted adverse environmental consequences should Material Service discontinue its dewatering operations. Reynolds presented no evidence of any contractual or other legal relationship that would guarantee the continuance of this operation.

The Board found that a quarry, due to its permeability, cracks, or fissures, is an extremely dangerous site for a landfill unless it is properly managed. Leachate produced in a quarry can be transmitted readily to the ground water, thus necessitating great diligence in the oversight of such a landfill. The absence of evidence as to materials previously dumped at the sight caused the Board further apprehension. It noted also that the leachate presently produced at the site would cause major pollution problems but for the dewatering activities conducted by Material Service. In light of Reynolds’ lack of control over these activities, the Board concluded that Reynolds’ landfill presents a great potential for serious environmental harm. We find that this conclusion was neither unreasonable nor against the manifest weight of the evidence.

We next address the issue of whether the Board correctly found that the potential for harm here renders the exception to the Act’s permit requirement in section 21(d) inapplicable to Reynolds’ landfill. A reviewing court is not bound by an agency’s interpretation of the law under which it operates. That interpretation, however, should be given great weight. Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 348 N.E.2d 161; Ranquist v. Stockier (1977), 55 Ill. App. 3d 545, 370 N.E.2d 1198.

Although the exception is inapplicable to hazardous wastes, there is no language in the Act which specifically limits the exception to wastes which pose no potential for environmental harm. The cardinal rule of statutory construction, however, is to ascertain and give effect to the legislative purpose and intent of the statute. (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 285 N.E.2d 129.) In order to arrive at this intent, the statute must be considered as a whole. (R.E. Joos Excavating Co. v. Pollution Control Board (1978), 58 Ill. App. 3d 309, 374 N.E.2d 486.) It is generally unnecessary to look beyond the language of the statute. Yet, where, as here, different interpretations are urged, the court must look to the reasons for enactment of the statute and the purposes to be gained thereby and construe the statute in a manner which is consistent with that purpose. R.E. Joos Excavating Co. v. Pollution Control Board.

Pertaining to permits, the purpose of the Act is “to prevent the pollution or misuse of land, to promote the conservation of natural resources and minimize environmental damage by reducing the dififi-culty of disposal of wastes and encouraging and effecting the re-cycling and re-use of waste materials, and upgrading waste collection and disposal practices.” (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1020.) In light of this purpose, the Board properly determined that the exception is inapplicable to Reynolds’ landfill. It would be contrary to the objectives of the permit requirement to exempt from the agency oversight inherent in such requirement a landfill site which presents so great a potential for serious environmental harm.

The Board’s determination that Reynolds, having failed to apply for the required permit, failed to show unreasonable hardship was also not against the manifest weight of the evidence. Thus, we need not consider Reynolds’ argument that, absent the permit requirement, it should have been granted the variance without the disputed conditions.

For the reasons stated, the orders of the Illinois Pollution Control Board denying Reynolds Metals Company’s petition for a variance and for a rehearing are affirmed.

Orders affirmed.

McGILLICUDDY and RIZZI, JJ., concurring.


author: JUSTICE RIZZI

text:
      In re COMMITMENT OF RONALD COPPERSMITH.-(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. RONALD COPPERSMITH, Respondent-Appellant.)
    First District (3rd Division)
    No. 81 — 3116
    Opinion filed July 21, 1982.

      Mark J. Heyrman and Jeffrey Peck, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Leslie E. South, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Respondent appeals from an order of the circuit court which refused to grant him compensatory good time credit in setting his release date from the Department of Mental Health and Developmental Disabilities (DMHDD). Respondent argues that the trial court erred in calculating his sentence credit for good behavior. We reverse.

On June 12, 1971, respondent was arrested for murder and incarcerated until September 14, 1971. The following day he was found unfit to stand trial, and he was committed to DMHDD until July 14, 1977, when he was found fit to stand trial. From the latter date until his trial on November 2, 1977, he was confined in the county jail. He was then found not guilty by reason of insanity and committed to DMHDD. Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4.

In accord with People v. Thiem (1980), 82 Ill. App. 3d 956, 962, 403 N.E.2d 647, 652, the trial court conducted a hearing to set a maximum period of commitment for respondent. The court indicated that had respondent been convicted, it would have assessed a sentence of 200 to 600 years as an indeterminate term since respondent elected to be sentenced in accord with the law in effect prior to February 1, 1978. The court also found that respondent would have then been eligible for parole in 20 years less credit for good behavior; that application of statutory good time credit reduced the time of respondent’s parole eligibility to 11 years and 3 months; that respondent was entitled to credit for the time he was in custody of DMHDD and the sheriff; but that respondent was not entitled to compensatory good time credit. The court then set respondent’s release date at no later than September 12, 1982.

Respondent now argues that he was improperly denied compensatory good time credit in violation of section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4(b)). Respondent’s position is based on his argument that no logical distinction exists to differentiate between statutory and compensatory credits. Nor, respondent says, does section 5 — 2—4(b) distinguish between these credits when it requires that a person found not guilty by reason of insanity, yet in need of mental treatment, shall be committed to DMHDD for an indefinite period of time:

“provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.”

Respondent concludes that had he been in the custody of the Department of Corrections (DOC), its regulations would have allowed him to receive not only statutory good time credit but also compensatory good time credit. He calculates that the latter credit would have reduced his release date by about 2 years and entitled him to have been released in October 1980.

The State argues that compensatory good time is available only to those who are in the custody of DOC as set forth in its regulation A.R. 866 and not to someone in the custody of DMHDD.

We believe that the case of Hampton v. Rowe (1980), 88 Ill. App. 3d 352, 410 N.E.2d 511, is instructive in resolving this issue. There, a DOC inmate sought a writ of mandamus against DOC to credit his penitentiary sentence with compensatory good time credits for the period of time he was incarcerated in the county jail pending trial because he could not make bond. The inmate contended that he was denied equal protection under A.R. 866 because a person who was not incarcerated prior to being convicted because he was able to make bail or was released on his own recognizance would receive compensatory good time credits from the first day of his confinement in a DOC facility. The trial court agreed, and it remanded the case with directions that the writ of mandamus be issued. In reaching its decision, the court noted that the history of A.R. 866 showed that compensatory good time credits were no longer based only on participation in rehabilitation programs or satisfactory performance of work assignments, and that the only difference between statutory good time and compensatory good time was the amount and method of computation. 88 Ill. App. 3d 352, 354-55, 410 N.E.2d 511, 512-13.

We perceive no logical distinction why respondent, who was in custody of DMHDD, should be treated differently than the plaintiff in Hampton. Respondent should have received compensatory good time credit.

Our determination is buttressed by the timing of the enactment of the current section 5 — 2—4(b) of the Unified Code of Corrections now at issue. That statute was enacted in 1977 (Pub. Act 80 — 164), whén both statutory and compensatory good time credits were still authorized. Yet, the legislature made no distinction between them in section 5 — 2—4(b). We believe that this is indicative of the legislature’s intent that the credits were not to be treated differently in section 5 — 2—4(b).

In its brief, the State concedes that if respondent’s position is accepted, his calculations are correct concerning his release date and remand is unnecessary since this court has the authority to reverse the trial court’s order (73 DI. 2d R. 615(bXl)). We therefore conclude that re- ' spondent is entitled to his immediate release unless his civil commitment is sought.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

McNAMARA and McGILLICUDDY, JJ., concur.


author: JUSTICE LINN

text:
      In re NICK McCALL et al., Minors—(THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICK McCALL et al., Defendants-Appellees.)
    First District (4th Division)
    Nos. 80 — 2667, 80 — 2669, 81 — 1151 cons.
    Opinion filed July 22, 1982.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Thomas J. Murphy, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Leslie J. Starks and Donald Honchell, Assistant Public Defenders, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

In this consolidated appeal, the State appeals the dismissal by the juvenile division of the circuit court of Cook County of the petition for adjudication of wardship of three minor defendants, Nick McCall, Constance Lindley, and Leroy Bono. The State argues that the trial court’s dismissal of the charges against defendants on the ground that the detention hearing was not held within the 36 hours required by the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 703 — 5(1)) was an inappropriate remedy for the violation. Defendant McCall argues in addition that the State’s filing of a late notice of appeal in his case was improper, and therefore the appeal as to McCall should be dismissed. We vacate the order allowing the State to file a late notice of appeal and dismiss the appeal in the case of defendant McCall, and reverse and remand for hearings on the State’s petitions for adjudication of wardship in the cases of defendants Lindley and Bono.

FACTS

The three minor defendants, McCall, Lindley, and Bono, were arrested and taken into custody by Chicago police officers on March 24, 1980, at 4:10 p.m. They were charged with burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1) in that they knowingly entered a building with the intent to commit theft therein. Petitions for adjudication of wardship were filed, and a hearing was held on the petitions on March 26,1980, at 1:30 p.m.

On July 15, 1980, McCall’s attorney filed a motion to dismiss the petition for adjudication of wardship. The motion stated that McCall was held in custody for 45 hours before he was given a detention hearing, which was a violation of the following Juvenile Court Act provision:

“Unless sooner released, a minor *** taken into temporary custody must be brought before a judicial officer within 36 hours, exclusive of Saturdays, Sundays and court-designated holidays, for a detention hearing or shelter care hearing to determine whether he shall be further held in custody.” (Ill. Rev. Stat. 1979, ch. 37, par. 703-5(1).)

He also argued that as a result of the State’s failure to comply with this statute, McCall was denied due process of law. On July 25, 1980, the circuit court of Cook County, juvenile division, dismissed the charges against McCall, holding that the nine-hour delay beyond the authorized. 36-hour period before holding a detention hearing was a violation of due process. On September 11, 1980, the charges against Lindley and Bono were dismissed for the same reason.

The State filed a timely notice of appeal in the Lindley and Bono cases on October 9, 1980. On May 12, 1981, the State moved this court to consolidate the Lindley and Bono appeals with the McCall case. On May 13, 1981, the State petitioned this court for leave to file notice of appeal in the McCall case instanter. On May 21, 1981, this court entered an order allowing the State to file its notice of appeal instanter as the State had requested.

Opinion

I

Defendants contend that the appeal by the State in the case of defendant McCall should be dismissed for failure of the State to file its late notice of appeal in a timely manner. We agree. Illinois Supreme Court Rule 606(c) (73 Ill. 2d R. 606(c)), under which the State filed its “petition for leave to file the notice of appeal instanter” provides as follows:

“(c) Extension of Time in Certain Circumstances. On motion supported by a showing of reasonable excuse for failing to file a notice of appeal on time filed in the reviewing court within 30 days of the expiration of the time for filing the notice of appeal, or on motion supported by a showing by affidavit that there is merit to the appeal and that the failure to file a notice of appeal on time was not due to appellant’s culpable negligence, filed in the reviewing court within six months of the expiration of the time for filing the notice of appeal, in either case accompanied by the proposed notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing.” (Emphasis added.)

The circuit court dismissed the charges against McCall on July 25, 1980. The State requested leave to appeal on May 31, 1981, almost 10 months later and well beyond the maximum seven-month period provided by the Rule for this court to permit a late notice of appeal to be filed.

We have reviewed the cases cited by the State to support its argument that dismissal of its appeal as to defendant McCall would be “a travesty of justice” and have concluded that they do not support the State’s position. These cases (e.g., People v. Brown (1973), 54 Ill. 2d 25, 294 N.E.2d 267; People v. Joseph (1975), 37 Ill. App. 3d 315, 337 N.E.2d 110) involved appeals by defendants whose failure to file a timely notice of appeal was demonstrably excusable and in which no prejudice would result from the reviewing court’s granting of defendants’ petitions. The State here offers no excuse for its failure to file a timely notice of appeal of the dismissal of the charges against McCall.

Although we agree with the State’s contentions that this appeal has merit, and that a societal interest exists in guiding and rehabilitating the minor defendant, we find that we are without jurisdiction to hear the State’s appeal as to defendant McCall. Filing of the notice of appeal is jurisdictional. (73 Ill. 2d R. 606(a).) This court has no discretion to extend its jurisdiction (People v. Williams (1980), 82 Ill. App. 3d 681, 402 N.E.2d 440), and failure to file a timely notice of appeal cannot be waived by the parties (People v. Ilg (1965), 60 Ill. App. 2d 295, 210 N.E.2d 20). Accordingly, we find unavailing the State’s argument that it would be an abuse of this court’s discretion to dismiss the appeal because McCall did not object to it at the time notice was filed. Because the procedures for effecting one’s right of appeal and invoking the appellate court’s jurisdiction are provided by the supreme court through its rule-making power, the conditions of the rules must be complied with. (People v. Carter (1980), 91 Ill. App. 3d 635, 415 N.E.2d 17.) Because the conditions of the rule were not complied with by the State, we dismiss the State’s appeal in the case of defendant McCall.

II

In the appeals of defendants Bindley and Bono, we hold that dismissal of the charges against the minor defendants was not a proper remedy for the State’s failure to hold a detention hearing within 36 hours after they were taken into custody. At the hearing on defendants’ motion to dismiss the State’s petition for adjudication of wardship, which was granted, the trial court found that the State had violated the 36-hour limitation of the Juvenile Court Act, and had thereby violated defendants’ due process rights. We disagree.

Defendants’ argument that their due process rights were violated is entirely unsupported in their appellate brief. Defendants quote the statement in People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, that a trial court has the authority to dismiss a criminal indictment where there has been a denial of due process. However, defendants ignore Lawson’s further statement that the defendant must make a clear showing of actual and substantial prejudice. Defendants in this case have not demonstrated that they suffered any prejudice. Furthermore, defendants themselves point out in their brief that “Lawson *** [is] inapplicable since the prejudicial delays *** [it] examined occurred prior to arrest or confinement.” We are unable to discern any merit in this argument by defendants.

The 36-hour limitation is mandatory. (People v. Clayborn (1980), 90 Ill. App. 3d 1047, 414 N.E.2d 157.) The statute itself provides a remedy for its violation: “The minor must be released from custody at the expiration of the 36 *** hour period *** if not brought before a judicial officer within that period.” (Ill. Rev. Stat. 1979, ch. 37, par. 703 — 5(4).) Because violation of the statute does not deprive the court of jurisdiction over the minor (People v. Dean (1977), 52 Ill. App. 3d 383, 367 N.E.2d 419; In re Daniels (1976), 37 Ill. App. 3d 975, 347 N.E.2d 479), we find that dismissal of the charges against defendants was an inappropriate remedy. The proper remedy for violation of the 36-hour rule is to release the juvenile defendant from custody prior to the adjudicatory hearing. (People v. Clayborn (1980), 90 Ill. App. 3d 1047, 414 N.E.2d 157.) We hold that dismissal of the charges against defendants was not warranted by the nine-hour delay before holding their detention hearing. Accordingly, as to defendants Lindley and Bono, we reverse and remand to the circuit court for hearings on the State’s petitions for adjudication of wardship of these defendants.

Vacated and dismissed in part.

Reversed and remanded in part.

JOHNSON, P. J., and ROMITI, J., concur.

      Defendant Brown had not been advised by the trial court of the requirement that he file a notice of appeal within 30 days after entry of judgment against him (73 Ill. 2d R. 606(b)), and he had filed his notice of appeal 46 days after judgment was entered. The Illinois Supreme Court held that the dismissal of Brown’s appeal by the appellate court was an abuse of discretion.
      Defendant Joseph, who was indigent, had filed a pro se notice of appeal 35 days after entry of judgment against him, as soon as he discovered that his trial counsel had not done so. When the appellate court found that appellate counsel had never been appointed for Joseph, it appointed the State Appellate Defender to represent him. Twenty-six days later, Joseph’s counsel was permitted to file a late notice of appeal on his behalf, 13 days after expiration of the six-month period.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. WILLIE NUNN, Respondent-Appellant.
    First District (5th Division)
    No. 80 — 1712
    Opinion filed July 30, 1982.

      James Prendergast, of Richard J. Prendergast, Ltd., and George E. Weaver, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Stephen R. Botti, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Respondent appeals from an order of the trial court remanding him to the Illinois Department of Mental Health (the Department) after a jury verdict finding him subject to involuntary admission. Several issues are presented for review, among which is that the State failed to prove by clear and convincing evidence that respondent was in need of mental treatment. Since we find that the State failed to meet its burden and accordingly reverse, we need not consider the other contentions raised.

The record indicates that respondent was initially indicted for various felony offenses arising from an incident which occurred on April 9, 1978, when he allegedly abducted Chicago police officer Eugene Za-leski. Respondent was subsequently acquitted of those charges by reason of insanity, and thereafter the State petitioned for the involuntary admission of respondent to a mental institution.

At the hearing, Officer Zaleski testified that a man, whom he identified in court as respondent, drew a sawed-off shotgun as he and his partner were questioning him; that at gunpoint, respondent disarmed them and ordered Zaleski to drive him on a circuitous route through Chicago; and that respondent eventually was persuaded to release them, in return for which he was promised that he would be taken to a mental hospital.

Dr. Gilbert Bogen, a certified psychiatrist, testified that on April 10, 1980, he interviewed respondent for one hour to determine whether he had a mental disease and might be dangerous to himself or others; that respondent had a history of psychiatric hospitalization and was taking antipsychotic and anticonvulsive medication; that at the time of the abduction of Zaleski and his partner, respondent had lost his medication; that solely from the interview, he “could establish no opinion whatsoever on dangerousness;” that none of the reports he had read or people with whom he had spoken indicated respondent would resist taking his medication; that based upon a review of respondent’s psychiatric records for the past 10 years, he was of the opinion that he was suffering from a mental illness — organic brain damage with possible seizure activity leading to violent behavior; that because of the mental disease, respondent was “extremely dangerous” and could reasonably be expected to harm himself or others in the near future; that respondent’s illness would be controlled if he continued to take his medication; that within 24 to 72 hours after not taking such medication, respondent would not be able to control himself; and that respondent’s conduct in abducting the officers on April 9,1978, was due to his failure to take medication.

Dr. Mark Slutsky, a court-appointed psychiatrist, testified that he examined respondent, reviewed psychiatric reports and records concerning him, and spoke with other physicians who had examined him; that based on the interview, he concluded respondent was functioning at a stable level and “was not as disorganized as apparently he had been in the past;” and that based on the examination and the review of respondent’s records, he concluded that although respondent suffered from a mental illness, he presented no danger to himself or others then or in the future.

Dr. Jeffrey Spector, another court-appointed psychiatrist who examined respondent and reviewed various psychiatric reports concerning him, testified that he was aware respondent was taking medication; that based on the interview and review of the records, he was of the opinion that respondent did not present a danger to himself or others; that respondent would not repeat his allegedly violent behavior in the future; and that as long as respondent took his medication, he could be treated as an outpatient.

Two other witnesses who had known respondent since his incarceration two years earlier also testified. First, Captain Charles Dunni-gan, who had been a shift commander at the Cook County Department of Corrections for 8 months in the division where respondent was held, testified that he knew of no occasion on which respondent had done violence to himself or others; that respondent had a reputation for nonviolence; that he could recall no instance in which respondent refused to take prescribed medication; and that incidents of violence or refusal to take medication would have been brought to his attention. Secondly, Ozarie Wherry, who was employed as a social worker for the Cook County Department of Corrections and was assigned to the division where respondent was held, testified that she had had daily contact with respondent; that she would have been told if he had refused to take his medication, but she knew of no such instance in which he had refused to do so; that respondent got along well with other people at the jail, obeyed rules, and had a reputation for being nonviolent; and that her knowledge of the alleged abduction in 1978 did not affect her opinion concerning his nonviolent character.

Respondent now appeals from the judgment entered upon the jury verdict finding him subject to involuntary commitment.

Opinion

At oral argument, it was brought to this court’s attention that respondent has been unconditionally released by the Department. It-is thus necessary to determine whether the case at bar is moot.

The mootness doctrine, which causes dismissal of an appeal, is generally not applicable to involuntary commitment cases (In re Phillips (1978), 62 Ill. App. 3d 408, 379 N.E.2d 97; In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557), and it should not be applied where it would prevent issues capable of repetition from ever being susceptible to appellate review (In re Marquardt (1981), 100 Ill. App. 3d 741, 427 N.E.2d 411). The exception to the mootness doctrine is of particular importance where commitment orders may have collateral legal consequences which survive the expiration of the order under review. (In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.) Furthermore, it has been held that even in the context of absolute discharge, collateral legal consequences may exist if the respondent was committed several times before, for at some point the number of commitments may make his reputation irredeemable. In re Phillips (1978), 62 Ill. App. 3d 408, 411, 379 N.E.2d 97, 99; In re Graham (1976), 40 Ill. App. 3d 452, 352 N.E.2d 387; cf. People ex rel. Craine v. Boyd (1976), 41 Ill. App. 3d 538, 353 N.E.2d 696 (mootness doctrine applied where respondent had been given absolute discharge, and his future was thus brightened by prospect that commitment had cured condition leading to criminal activity and subsequent imprisonment).

Here, we are unable to determine, as the mootness doctrine requires (In re Fields (1978), 60 Ill. App. 3d 869, 377 N.E.2d 301), that no collateral legal consequences will attend the order of the trial court. The record affords no guidance as to whether the commitment order in question may, for example, impair respondent’s employment opportunities or reputation or increase the probability of recommitment. Accordingly, we will consider the present case as not being moot.

Turning to the merits, it is apparent that the State’s position rests upon the conclusion that respondent is subject to involuntary commitment because he might fail to take prescribed medication and thus be a danger to himself or others. However, that proposition does not satisfy the standard which requires the State to prove respondent in need of hospitalization by clear and convincing evidence.

Under the Mental Health and Developmental Disabilities Code, an individual is subject to involuntary admission if he is mentally ill and, because of such illness, he is reasonably expected to inflict serious harm upon himself or another in the near future or is unable to provide for his basic physical needs so as to avoid seriously harming himself. (Ill. Rev. Stat. 1979, ch. 911/2, par. 1 — 119.) The State must prove such need for mental treatment by clear and convincing evidence. (Ill. Rev. Stat. 1979, ch. 911/2, par. 3 — 808; In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) Furthermore, a respondent is entitled to a current evaluation of his conduct and state of mind, including medical evidence that he presented a danger to himself or others as a direct result of the mental disorder. (People v. Butler (1979), 69 Ill. App. 3d 556, 387 N.E.2d 908.) In other words, the decision to commit must be based upon a fresh evaluation of respondent’s conduct and mental state. People v. Bradley (1974), 22 Ill. App. 3d 1076, 318 N.E.2d 267.

In the present case, Dr. Bogen testified that on the basis of his interview of respondent, he could not determine that respondent was dangerous but, upon reviewing respondent’s records in conjunction with the interview, he concluded that respondent presented sufficient danger to require mental treatment. Dr. Bogen also opined that respondent suffered from organic brain damage which could reasonably be expected to cause respondent to inflict harm upon himself or others in the near future. Significantly, however, Dr. Bogen agreed with the conclusion of another psychiatrist that, based upon a reasonable degree of medical certainty, respondent posed no danger to himself or others and did not require hospitalization so long as he took his medication. That view was consistent with the opinions of Drs. Slutsky and Spector.

We think it clear that the commitment order in question was not based upon the danger respondent posed because of his.mental disorder but, rather, upon the fact that he might inflict harm if he failed to take prescribed medication. There is no indication in the record, however, that respondent refused to take such medication. To the contrary, as much of the testimony at trial revealed, respondent appears to be a cooperative individual and one included to obey rules. The record further indicates that at the time of the alleged abduction, respondent had lost his medication and had been searching for it. Thus, Dr. Bogen’s prediction that respondent would cease taking his medication in the future was unwarranted. In any event, the refusal to take medication is not sufficient to justify an order of commitment. (In re Phillips (1978), 62 Ill. App. 3d 408, 379 N.E.2d 97.) Such an order which rests upon the possibility or the prediction that an individual might fail to take medication could lead to the unacceptable result of permanent detention, and we note in this regard that the State does not suggest how the confinement of respondent in a mental institution would otherwise improve his condition.

In Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, it was held that an individual found to be incompetent to stand trial cannot be indefinitely committed to a mental hospital but can only be held for a period of time reasonable to determine if there exists a substantial probability that he will attain such capacity in the foreseeable future. Implicit in that holding is the concept that such an individual cannot be hospitalized without at least receiving treatment designed to restore competency. Analogously, in the present case, the State cannot successfully maintain that the potentially permanent institutionalization of respondent is justified by speculation that he may fail to take medication. Furthermore, as expressed by Dr. Spector, respondent would benefit from outpatient therapy, and his behavior would be controlled as long as he took his medication. Thus, while the medical opinion supporting the order of commitment was based upon direct observation of respondent’s conduct (see In re Love (1977), 48 Ill. App. 3d 517, 363 N.E.2d 21), the State failed to establish by clear and convincing evidence that as a direct result of respondent’s mental illness, he could reasonably be expected to inflict harm upon himself or others in the near future.-

The order finding respondent in need of involuntary admission for mental treatment is reversed.

Reversed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE MEJDA

text:
    ROBERT SADLER, Plaintiff-Appellant, v. THE COUNTY OF COOK et al., Defendants-Appellees.—ROBERT SADLER, Plaintiff-Appellee, v. THE COUNTY OF COOK et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 81 — 1737, 81 — 2405 cons.
    Opinion filed July 30, 1982.

      P. Scott Neville, Jr., of Chicago, for Robert Sadler.
    Richard M. Daley, State’s Attorney, of Chicago (Roman L. Sukley and Jane Clark Casey, Assistant State’s Attorneys, of counsel), for County of Cook.
   JUSTICE MEJDA

delivered the opinion of the court:

On April 13, 1981, plaintiff filed a petition consisting of three counts. The petition alleged in substance that plaintiff, an employee of Cook County Hospital, was improperly discharged from his employment on May 6, 1980. Count I, grounded on breach of contract, was directed against defendants Cook County, the board of commissioners of Cook County, and their agents Donald E Hickey and Jennie Tú-cente, and sought, inter alia, issuance of a writ of mandamus directing defendants to reinstate plaintiff to his former position with back pay. Counts II and III involved allegations of false imprisonment stemming from plaintiff’s arrest and detention incident to events leading to his discharge, and sought damages against defendants Cook County, the board of commissioners of Cook County, and their agents, officers Joe Parker and J. W. Morris, both Cook County Hospital security guards.

On June 17, 1981, the trial court granted plaintiff’s motion for summary judgment with respect to count I of the petition, ordering: (1) that a writ of mandamus issue directing defendants to hold a disciplinary hearing on behalf of plaintiff; (2) directing defendants to pay back wages to plaintiff computed from June 5, 1980,, until such date that the disciplinary hearing was held; and (3) severing counts II and III from the petition and transferring them to the chief judge of the law division for reassignment.

Following reassignment, on July 2, 1981, the appropriate trial court granted plaintiff’s motion for summary judgment on counts II and III, and set the matter for a prove-up on damages on July 30, 1981.

On July 10, 1981, plaintiff filed a notice of appeal challenging only that portion of the June 17 order compelling defendants to hold a disciplinary hearing, and the method of computation of back pay (appellate court No. 81 — 1737). Then, on July 16, 1981, defendants filed post-trial motions to (1) vacate the June 17 order of mandamus and back pay, and (2) vacate the July 2 summary judgment on counts II and III. On July 30, 1981, the trial court granted the latter motion and vacated the July 2 judgment order.

According to defendants’ brief, the motion to vacate the June 17 order of mandamus and back pay was denied on September 3, 1981, and defendants filed notice of appeal on September 30, 1981 (appellate court No. 81 — 2405).

The two appeals were consolidated on this court’s motion. We have also taken for consideration with these appeals plaintiff’s motion to dismiss defendants’ appeal. At oral argument we questioned the appealability of the June 17 order, and therefore this court’s jurisdiction to consider these appeals. We have considered the supplemental authorities submitted to this court by the parties and conclude that the instant order is not appealable, and accordingly the plaintiff’s and defendants’ appeals must be dismissed.

Our conclusion is based on the failure of the June 17, 1981, summary judgment order to satisfy the requirements of Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), which provides:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 73 Ill. 2d R. 304(a).

In cases involving appeal from a judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, and where the court has made no express finding that “there is no just reason for delaying enforcement or appeal” as required by the Rule, we have held that an appellate court has no jurisdiction and may dismiss the appeal on its own motion. (Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 387 N.E.2d 1129; Blanchette v. Martell (1977), 52 Ill. App. 3d 1029, 368 N.E.2d 458; Peesel v. Peesel (1973), 11 Ill. App. 3d 76, 296 N.E.2d 69.) Here, no express finding is contained in the June 17, 1981, summary judgment order which adjudicated only those claims raised in count I of the instant action.

Plaintiff contends that no special finding was required since prior to the time of filing his notice of appeal, all the remaining claims, rights and liabilities of the parties had been disposed of by the trial court’s summary judgment order of July 2, 1981. This contention is without merit. The July 2, 1981, summary judgment order settled issues of liability against the defendants addressed in counts II and III, but also it expressly reserved the issue of damages for determination at a later hearing. Thus, the order was interlocutory in nature and indeed failed to conclude the litigation with respect to all claims and all parties. Moreover, the summary judgment order was vacated by the trial court on July 30, 1981, and therefore the claims, rights and liabilities with respect to counts II and III have not presently been adjudicated.

We have considered plaintiff’s contention that, in essence, his filing of notice of appeal on July 10 deprived the trial court of its jurisdiction to enter any further judgment or order, including the instant order vacating summary judgment. We note that a contrary conclusion was reached in Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1, 401 N.E.2d 1340. There, the court considered the jurisdictional effect of one party’s filing a notice of appeal prior to another party’s filing of an otherwise timely post-trial motion. The court held that under such circumstances, the trial court retained jurisdiction to rule upon the motion. The court observed:

“To hold otherwise would allow one party to effectively bar review of another’s issues, certainty an untenable result. Section 68.3 of the Civil Practice Act allows any party to file a post-trial motion within 30 days of entry of a judgment, and one should not be denied his right to file such a motion just because opposing counsel files a prior notice of appeal. So too, one should not be allowed to affirmatively circumvent section 68.3 by filing a notice of appeal before opposing counsel files his post-trial motion. Either case would frustrate the primary purpose of the post-trial motion, which is to call to the attention of the trial court possible errors and give it the first opportunity to review its rulings in order to avoid multiplicity of litigation and piecemeal appeals.” 82 Ill. App. 3d 1, 17, 401 N.E.2d 1340, 1352.

In our view Bitzer Croft Motors, Inc. disposes of plaintiff’s contention here, and we deem that the trial court had jurisdiction to consider the defendants’ post-trial motions, notwithstanding the notice of appeal filed by plaintiff.

Finally, plaintiff contends alternatively that no express special finding was required under Rule 304(a) essentially because (1) count I was a separate and distinct cause of action from counts II and III, and the June 17, 1981, order was therefore a final and appealable disposition in this court, and (2) the granting or denial of a petition for a writ of mandamus is by its nature final and appealable. These contentions are equally meritless. Notwithstanding the finality of the instant mandamus order, Rule 304(a), by its terms, predicates the appealability of final judgments as to fewer than all claims or parties, upon the .entry of the express special finding. (73 Ill. 2d R. 304(a).) Also, we are aware of no exception to this Rule applying particularly to actions involving mandamus claims, nor do we believe that the trial court’s severance of count I from counts II and III operated to render Rule 304(a) inapplicable here. We have considered the appellate court decision in Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 387 N.E.2d 1129, and find that case inapposite to the situation at bar. In Salyers, plaintiff filed a four-count complaint, counts I and II involving allegations of due process violations against one defendant, and counts III and IV involving allegations of defamation against two separate defendants. Prior to trial the court severed counts I and II from counts III and IV, since they involved separate issues and parties. Subsequently, summary judgment was entered on counts I and II. Regarding the appealability of the summary judgment order, the appellate court reasoned that Rule 304(a) applied only to “single actions where multiple parties and multiple claims” were involved, and since multiple parties or multiple claims were no longer involved in a “single action,” because of the trial court’s severance of the counts at issue, the Rule was inapplicable. 69 Ill. App. 3d 356, 358, 387 N.E.2d 1129,1130-31.

Initially, we hold the Salyers case to be inapposite to the instant case since the three counts in the action at bar do not involve wholly separate parties. Moreover, we believe that Salyers adopted the premise that a discretionary severance of claims or causes of action under section 44(2) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 44(2)) results in separate “actions” as that term is used in Rule 304(a). In our view, severance pursuant to section 44(2) clearly results in separate trials, not separate actions. Consequently, we deem the claims involved in the instant case to be all part of a single “action,” notwithstanding the severance of counts II and III from count I. Since the summary judgment order here involved less than all claims and all parties, and no special finding was entered as required by Rule 304(a), this court has no jurisdiction to consider the appeals herein presented. 73 Ill. 2d R. 304(a).

We note that in the absence of the required finding, the instant judgment issuing the writ of mandamus, by the terms of Rule 304(a), remains neither enforceable nor appealable and is subject to revision at any time before the entry of judgment which adjudicates all claims and rights and liabilities of all the parties herein. 73 Ill. 2d R. 304(a).

Accordingly, the instant appeals are dismissed.

Appeals dismissed.

SULLPVAN, P. J., and LORENZ, J., concur.