author: JUSTICE LINN

text:
    JEROME MANDELKE et al., Plaintiffs-Appellants, v. INTERNATIONAL HOUSE OF PANCAKES, INC., Defendant-Appellee.
    First District (4th Division)
    No. 84—119
    Opinion filed March 7, 1985.
    Rehearing denied April 11, 1985.

      Joseph I. Adler, of Chicago, for appellants.
    Ronald Barliant, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, franchisee-sublessee, brought a declaratory judgment action against defendant, franchisor-sublessor, seeking a declaration that defendant is liable for certain repairs to the leased premises under the terms of the franchise and lease agreements entered into between the parties. The trial court entered a judgment on the pleadings for defendant and plaintiff appeals.

We affirm the decision of the trial court.

The pleadings in this case set forth the following pertinent facts:

In October 1969, plaintiff, Jerome Mandelke, entered into franchise and sublease agreements with defendant, International House of Pancakes, Inc. (IHOP). The franchise and sublease agreements called for IHOP to construct, furnish and equip an IHOP restaurant and to sublease the restaurant to plaintiff, who would operate it as franchisee. Both agreements expire in October 1994.

Paragraph V of the sublease provides as follows:

“REPAIRS AND MAINTENANCE Sublessor [IHOP] agrees to and will keep and maintain the roof and exterior walls, but not including any exterior doors, windows or other glass, in good order, condition and state of repair. Sublessee [Mandelke] agrees to and shall, at his own cost and expense, keep and maintain all of the remainder of the demised premises, including, without limitation, the interior of the building, windows and other glass and all of the exterior of the demised premises, including, without limitation, the parking area and exterior lighting, all signs, landscaping and exterior doors, in good condition and state of repair at all times during the term of this sublease.”

Additionally, Section III(A) of the franchise agreement provides that “Franchisor shall lease (or sublease) to Franchisee land with building and appurtenances suitable for operation of the INTERNATIONAL HOUSE OF PANCAKES restaurant herein contemplated.” The franchise agreement contains an integration clause which requires that the two agreements be construed together.

After execution of the agreement, IHOP constructed the restaurant and, in January 1970, plaintiff took possession of the premises. Plaintiff* has operated the premises as an IHOP restaurant since that date. Plaintiff paid a $50,000 franchise fee, and continues to pay $395 in minimum weekly rent and other charges to IHOP pursuant to the agreements.

In October 1976, an underground water main installed by IHOP during the original construction of the building began to leak, causing flooding problems in the restaurant parking lot. Plaintiff had these leaks repaired at a cost in excess of $2,800. Shortly thereafter, the water main again developed similar leaks. Plaintiff was advised that proper correction of the problem requires excavation of the parking lot and replacement of the water main at a cost of at least $10,000. Additionally, a brick exterior planter wall has deteriorated to the point where it must be rebuilt.

Based on these facts, plaintiff’s complaint for declaratory judgment alleges that:

“the 1976 correction of the water main and the corrections presently required of it, as well as the rebuilding of the brick planter wall, do not constitute repairs for which MANDELKE is liable under the terms of said Franchise and Sublease but constitute items, the correction of which is the responsibility of IHOP under the terms of the said Franchise and Sublease.”

The complaint further prays:

“A. That the court determine and adjudicate the liabilities and rights of the parties hereto under the said Franchise and Sublease.
B. That the court enter a Declaratory Judgment *** construing Paragraph V of the Sublease as it applies to the controversy existing between the parties.
C. That the court enter judgment in favor of *** MANDELKE and against IHOP in the amount of $2,841.44 ***.”

IHOP filed its answer to the complaint denying liability for correcting the condition of the water main or the planter wall. Thereafter, IHOP filed its motion for judgment on the pleadings. The trial court granted IHOP’s motion. In doing so, the trial court found as a matter of law that, under the sublease and franchise agreement, IHOP has no obligation to make the repairs to those portions of the leased premises complained of in plaintiff’s complaint.

Plaintiff filed a motion to vacate the judgment. After a hearing the trial court denied the motion. This appeal followed.

Opinion

It is well settled that a judgment on the pleadings is proper only if questions of law and not of fact exist after the pleadings have been filed. (Murphy v. Roppolo-Prendergast Builders, Inc. (1983), 117 Ill. App. 3d 415, 417, 453 N.E.2d 846.) For purposes of review, uncontested, well-pleaded allegations of fact are deemed to be true. (Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 123, 435 N.E.2d 827.) Thus it is our duty to ascertain whether the trial court correctly determined that no genuine issue of material fact was presented by the pleadings and, if there was no such issue, whether judgment was correctly entered. (Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 210, 400 N.E.2d 1105.) With these principles in mind, we now consider plaintiff’s claim that the trial court erred in granting IHOP’s motion for judgment on the pleadings.

The mere relationship of landlord-tenant creates no duty in the landlord to make repairs to the demised premises absent an express agreement binding him to make repairs or to maintain the property in good repair. (Baxter v. Illinois Police Federation (1978), 63 Ill. App. 3d 819, 822-23, 380 N.E.2d 832.) Thus, any duty in IHOP to repair or correct the problems complained of must be determined with reference to the sublease agreement between the parties. Zion Industries, Inc. v. Loy (1977), 46 Ill. App. 3d 902, 910, 361 N.E.2d 605.

Paragraph V of the sublease unambiguously divides the duty of maintaining the restaurant premises between the parties. IHOP is required to maintain the roof and exterior walls of the building. Plaintiff is required to keep the remainder of the premises “in good condition and state of repair.” Thus, the intention of the parties is clear that plaintiff is bound to make the ordinary repairs reasonably required to keep the premises in proper condition, except for the roof and exterior walls of the restaurant. (Baxter v. Illinois Police Federation (1978), 63 Ill. App. 3d 819, 821.) Therefore, unless the pleadings raise an issue of material fact as to whether the necessary corrections to the water main and planter wall are outside plaintiff’s obligation to keep the premises in proper condition, the trial court properly resolved the issues between the parties by its judgment on the pleadings. Cf. Botti v. Avenue Bank & Trust Co. (1982), 103 Ill. App. 3d 1052, 1055, 432 N.E.2d 295.

Plaintiff seeks to avoid the obligation of Paragraph V by reference to a line of Illinois cases which hold that a lessee’s repair obligation does not include repairs involving structural changes. (See, e.g., Baxter v. Illinois Police Federation (1978), 63 Ill. App. 3d 819, 380 N.E.2d 832; Koenigshofer v. Shumate (1966), 68 Ill. App. 2d 474, 216 N.E.2d 195; Kaufman v. Shoe Corp. of America (1960), 24 Ill. App. 2d 431, 164 N.E.2d 617.) Plaintiff argues that his complaint raises a genuine issue of material fact as to whether the needed repairs to the premises are ordinary repairs or are of such a character that they constitute structural changes within the obligation of the lessor. We disagree.

Where a lease contains a clause making the lessee generally responsible for repairs, the expense of repairing subsequently discovered defects falls upon the lessee. (Koenigshofer v. Shumte (1966), 68 Ill. App. 2d 474, 477, 216 N.E.2d 195.) If, however, the required alterations or additions are of a substantial or structural nature and are made necessary by extraordinary or unforeseen future events not within the contemplation of the parties at the time the lease was executed, the onus of making such alterations and additions falls on the lessor. (Kaufman v. Shoe Corp. of America (1960), 24 Ill. App. 2d 431, 436, 164 N.E.2d 617.) Consequently, in instances where the lessee has expressly assumed the duty to keep the leased premises in good repair, the Kaufman rule clearly limits shifting liability to the lessor to circumstances where extraordinary or unforeseen events require the creation of something new or the making of important and permanent structural changes and alterations to make the premises tenantable. Our review of the pleadings shows that plaintiff has nowhere pleaded the existence of such extraordinary or unforeseeable events as are necessary to shift liability under the Kaufman rule.

As the plain import of Paragraph V of the sublease requires the plaintiff to make repairs to all portions of the premises excluding the roof and exterior walls, and no issue of material fact exists as to the nature of the complained-of repairs, we conclude that liability under the terms of the sublease was properly determined on the pleadings.

Plaintiff also urges that “under the whole scheme of operation” as evidenced by the franchise and sublease agreements, the pleadings raise a question of material fact as to whether IHOP has fulfilled its obligations to provide plaintiff with a building “suitable” for the operation of an IHOP restaurant as provided in the terms of the franchise agreement. We disagree.

While it is correct that the terms of the franchise agreement impose an obligation on IHOP to deliver a building suitable for operation of a restaurant, there are no allegations that IHOP failed to do so; indeed, the uncontested facts show that plaintiff has continuously operated the premises as such for over 14 years. The construction of the two agreements plaintiff urges here would impose a continuing obligation on IHOP to insure that the premises are suitable for use as an IHOP restaurant. However, that obligation has been expressly and unambiguously divided between the parties in Paragraph V of the sublease. To place the entire burden of maintaining the premises in a “suitable” condition on IHOP alone would contravene the clear intention of the contracting parties.

Based on the foregoing, we necessarily conclude that the trial court properly determined that no genuine issue of material fact was raised by the pleadings and properly determined the issues in favor of IHOP as a matter of law. The trial court’s judgment on the pleadings is therefore affirmed.'

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.

       Plaintiff Jerome Mandelke assigned his interest in the franchise and sublease to Mandelke Enterprises, Inc., in September 1980. Mandelke Enterprises is also a plaintiff in this action. However, for purposes of this opinion, we make no distinction between the two.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    CHERYL L. MANGAN, Plaintiff-Appellant, v. E. ALLEN BERNARDI, Director of Labor, et al., Defendants-Appellees (Olympia Fields Osteopathic Medical Center, Defendant).
    First District (3rd Division)
    No. 84—770
    Opinion filed March 13, 1985.

      Susan Burzawa, of Loyola University Community Law Center, of Chicago, and Ray Minrod, law student, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Plaintiff, Cheryl L. Mangan, appeals from a judgment entered by the circuit court of Cook County pursuant to the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) confirming a decision of the Board of Review of the Illinois Department of Labor (hereafter Board) denying her unemployment insurance benefits. On appeal, plaintiff contends that the circuit court erred when it determined that, as a matter of law, she refused an offer of work without good cause and when it failed to rule that the referee and Board neglected their statutory and constitutional duties to develop all relevant facts and make specific findings of facts on the issues.

During the evidentiary hearing before the adjudicator, Thomas Cavanaugh, a representative of Olympia Fields Osteopathic Medical Center (hereafter Osteopathic), testified that from September 14, 1981, until July 10, 1982, plaintiff was employed at Osteopathic as a radiology technician. When plaintiff went on maternity leave July 10, 1982, she was earning $8.05 per hour and worked 20 hours per week.

After plaintiffs leave expired, Sue Bolden, who apparently was the manager of the radiology unit at Osteopathic, telephoned plaintiff and asked if she would accept another part-time position at $8.29 per hour. The proposed work schedule would require plaintiff to work an eight-hour shift every other Saturday and during alternate weeks, from 3 p.m. to 7 p.m. on weekdays.

According to Cavanaugh, plaintiff refused to accept the position because there were not enough hours and she could receive more money through unemployment compensation benefits. Cavanaugh added that while plaintiff was on lay-off status, she could receive health insurance from Osteopathic, but if she accepted the part-time position she would not be eligible for such benefits. Cavanaugh also claimed that plaintiffs acceptance of the part-time position would not preclude her from obtaining other employment or using her husband’s medical insurance.

Plaintiff testified that during a telephone conversation March 21, 1983, Sue Bolden told her that a part-time position of eight hours a week for a radiology technician at $8.29 an hour was available. The following day, plaintiff telephoned Bolden and told her she would not accept the position because there were not enough hours being offered. Plaintiff stated that she thought Bolden understood that she had rejected the position because insurance, holiday and sick pay were not included. Plaintiff indicated that while Bolden advised her that she would be working more hours, she thought they would be unscheduled. According to plaintiff, when Bolden stated that she did not know if plaintiff could concomitantly claim unemployment insurance and work, plaintiff concluded that she would not be permitted to do so.

Additionally, plaintiff stated that if she knew that she could collect partial unemployment insurance benefits she would have accepted the part-time position. Plaintiff also indicated that while she preferred part-time employment, she would accept a full-time position.

The record also established that plaintiff was married and had a three-year-old child and a six-month-old infant. Her husband’s employer provides some insurance benefits for the family, and plaintiff’s mother and a neighbor are able to care for the children in her absence.

When the adjudicator informed plaintiff that she could receive partial unemployment insurance while working part-time, she contacted Osteopathic, but was told that the position was filled. According to plaintiff, she continued to apply for a position at other hospitals.

Plaintiff first asserts that the circuit court erred when it determined as a matter of law that she refused an offer of work without good cause. Because the Unemployment Compensation Act was passed with the public welfare in mind, construction of its provisions should favor inclusion of employees in determining their employer’s liability, and there is a strict burden of proof placed upon an employee claiming an exemption. (Hart v. Johnson (1979), 68 Ill. App. 3d 968, 386 N.E.2d 623.) Nevertheless, the burden of proving eligibility for unemployment compensation benefits rests upon the claimant. (Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 421 N.E.2d 397.) Our function on review of the Board’s determination is limited to ascertaining whether its findings of fact are sustained by the evidence. (Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 414 N.E.2d 1244.) The standard for review of the Board’s determination that an employer is not liable for unemployment compensation concerning an employee is whether that decision is against the manifest weight of the evidence. Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 390 N.E.2d 333.

It is well settled that a claimant is justified in refusing employment where the job offers a level of skill and rate of pay not commensurate with her previous employment, depending on the circumstances in each case. (Crocker v. Department of Labor (1984), 121 Ill. App. 3d 185, 459 N.E.2d 332.) Good cause for refusing work must involve circumstances which are real, substantial and reasonable, not arbitrary, immaterial or capricious. (Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 457 N.E.2d 512.) An important consideration is whether the claimant’s behavior manifests good faith consistent with a general desire to be employed. (Thompson v. Board of Review (1983), 120 Ill. App. 3d 1, 457 N.E.2d 512.) Additionally, a claimant is entitled to benefits for a reasonable period to enable her to seek work at a level of skill and rate of pay commensurate with her previous employment. Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 346 N.E.2d 399.

In the instant matter, the claims adjudicator determined that plaintiff refused the part-time position offered by her former employer with good cause, i.e., her income would be substantially reduced and she would be unable to receive fringe benefits, including medical insurance, that were available to her as a laid-off worker. We cannot conclude that the claims adjudicator’s decision was improper. It is undisputed that if the plaintiff accepted the position she would work fewer hours and no longer qualify for medical insurance or holiday or sick pay. And although the hourly wage in the new position, $8.29, was somewhat higher than the $8.05 plaintiff received before taking maternity leave, the net result would be less because of the loss of fringe benefits. Further, plaintiff’s attempts to secure other employment manifested good faith consistent with a desire to be employed. We believe that plaintiff’s rejection of the position was based on good cause involving circumstances that were substantial and reasonable. We believe that the final administrative decision was therefore against the manifest weight of the evidence and that the circuit court erred in confirming that decision.

As a result of our determination that plaintiff’s claim for unemployment compensation benefits should be granted, it is unnecessary to address the remaining issue presented.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Reversed.

WHITE, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE STAMOS

text:
    T.E.C. & ASSOCIATES, INC., Plaintiff-Appellant, v. ALBERTO-CULVER COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 84—1566
    Opinion filed March 19, 1985.

      Marvin A. Miller & Associates, Ltd., of Chicago (Marvin A. Miller and Vincent L. Ditommaso, of counsel), for appellant.
    Fox & Grove, Chartered, of Chicago (Russell M. Kofoed and Jody M. Pucel, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff T.E.C. & Associates, Inc. (TEC), is an Illinois corporation engaged in the business of recruiting individuals for employment vacancies in various business concerns. Alberto-Culver Company (Alberto) is a foreign corporation licensed to do business in Illinois with an office in Melrose Park. In January of 1982, Alberto had an opening in its data processing department for a senior programmer. An applicant named Mark West had an interview with Alberto on January 28, 1982, for the senior programmer position, and was subsequently hired by Alberto in February of 1982 at a salary of approximately $19,000 per year.

At the time TEC first solicited Alberto to employ West, TEC was not licensed as an employment agency by the Illinois Department of Labor pursuant to the Private Employment Agencies Act (PEAA). Alberto admits it received TEC’s invoice containing TEC’s fee arrangement and fee schedule relative to Mark West but refused to pay TEC because of TEC’s failure to obtain its employment agency license pursuant to the PEAA. Ill. Rev. Stat. 1981, ch. 111, par. 901.

On April 30, 1982, TEC sued Alberto for breach of contract, seeking damages, prejudgment interest, and attorney fees. On June 8, 1982, Alberto filed its answer and two affirmative defenses. Alberto’s first affirmative defense was based on TEC’s failure to have a license. Its second defense was based upon TEC’s alleged wrongful solicitation of one of Alberto’s programmers to leave the employ of Alberto at the same time TEC was attempting to place Mark West in the senior programmer position at Alberto.

A criminal action had been filed against Marc Leon, d/b/a TEC, because of the alleged violation of the PEAA. TEC’s motion to dismiss that action, which contained an affidavit of Mark Leon, was granted on March 14, 1982.

On March 15, 1982, Alberto filed a motion for summary judgment which contained an affidavit of the vice-president of Alberto in its management information services section and various other exhibits. In its motion, Alberto maintained that the failure of TEC to obtain the employment agency license precluded it from recovering any sums. Alberto further maintained that TEC did not fall within the exception to the licensing requirement because the senior programmer position was not an executive or professional position as used in the PEAA. The PEAA exempts from the licensing requirement those persons involved in management consulting who place individuals in executive or professional positions. Alberto relied on the definition of executive and professional contained in the Fair Labor Standards Act (29 C.F.R. pt. 541), which is used in Illinois to define those terms in its own minimum wage law. (Ill. Rev. Stat. 1981, ch. 48, par. 1004a(2)(E).) TEC filed its response to Alberto’s motion, which included an affidavit of Marc Leon, the president of TEC, as exhibit A, a group exhibit B containing TEC’s motion to dismiss and amended motion to dismiss the criminal action previously brought against Leon, and Leon’s affidavit attached in that proceeding, exhibit C, which was the order dismissing the criminal action, and exhibit D, which was the U.S. Department of Labor regulations for the Fair Labor Standards Act defining the term professional. (29 C.F.R. sec. 541.301 et seq.) Alberto filed its reply to TEC’s response moving to strike TEC’s affidavits as insufficient under Supreme Court Rule 191 and to strike TEC’s exhibit C.

After hearing arguments on the motion, the trial court struck the two affidavits of Marc Leon as well as exhibit C. The court also found that the senior programmer position at Alberto was not an executive or professional position under the PEAA and granted summary judgment in favor of Alberto. The counterclaim against TEC was ordered to remain pending, and the court found no just reason to delay enforcement or appeal of the judgment.

TEC appealed, claiming that the trial court erred in striking its exhibits A, B, and C attached to its response, that there exists a genuine issue of material fact as to whether the senior programmer position at Alberto is an executive or professional position, that the programmer position is both an executive and a professional position, and that TEC is not barred from recovering on its contract with Alberto.

The first issue to be addressed by this court is whether the trial court erred when it struck the three exhibits filed by TEC in its response to Alberto’s motion for summary judgment. The first two exhibits were affidavits filed by TEC’s president, Marc Leon. Supreme Court Rule 191 (87 Ill. 2d R. 191) requires that affidavits relied upon must consist of facts admissible in evidence to which the affiant could testify, not mere conclusions or other inadmissible matter. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497.) Affidavits filed in opposition to a motion for summary judgment, like TEC’s, will be liberally construed in favor of the nonmovant. Hendricks v. Deterts (1973), 13 Ill. App. 3d 976, 978, 301 N.E.2d 625.

Even under a liberal construction of the first affidavit, exhibit A, we find that is insufficient under Rule 191. The two key paragraphs are bald assertions by Mr. Leon representing his conclusion on one of the ultimate issues of the case, namely, the title to be afforded to those in the field of computer programming. These averments are not evidentiary facts. Also, it cannot' be gleaned from the affidavit as a whole that Mr. Leon would be able to testify to these matters. The trial court was therefore correct in striking exhibit A, because it contains mere conclusions of Mr. Leon. In addition, remaining portions of the affidavit are insufficient to rebut any of the material allegations of Alberto’s motion and attached affidavit. An examination of the second affidavit, which formed a part of group exhibit B, results in the same conclusion. This affidavit, like exhibit A, contains many conclusory statements that do not reasonably appear to be within the affiant’s personal knowledge. The trial court was therefore correct in striking this affidavit as well.

Exhibit C is a copy of the order dismissing the criminal action that had been brought against Marc Leon. That order, however, does not contain any reason for the dismissal and merely recites the fact of dismissal. Assuming the order would be admissible in this case, it would be admissible only to show that the criminal action had been dismissed. It does not show, as TEC suggests, that TEC falls within the exception to the licensing requirement. Although Marc Leon, d/b/a TEC, was dismissed from the criminal action, that dismissal would not preclude a civil proceeding based on the same charge, assuming such a proceeding existed, because of the differing standards of proof involved in the two actions. (See Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 908, 420 N.E.2d 618.) A fortiori, the criminal dismissal does not suggest that TEC is exempt from the licensing requirement or that Alberto is precluded from raising the fact of nonlicensure as a defense to TEC’s contract action. Consequently, the relevancy of the order of dismissal is so tenuous that the trial court did not err in ordering it stricken.

The next question to be resolved is whether, after striking TEC’s exhibits, entry of summary judgment for defendant was proper. Summary judgment will only be granted if the pleadings, affidavits and depositions on file disclose no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 975, 452 N.E.2d 649.) Upon review of the trial court’s entry of summary judgment, the appellate court must determine whether the trial court was correct in ruling that no genuine issue of material fact was raised and whether entry of the judgment was correct as a matter of law. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938, 453 N.E.2d 1133.) Summary judgment “is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto.” (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.) Also, where well-alleged facts in the movant’s affidavit are not contradicted by a counteraffidavit, they must be accepted as true “notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish bona fide issues of fact.” (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497.) In the present case, the trial court’s striking of TEC’s affidavits has effectively left the well-pleaded facts in Alberto’s supporting affidavit uncontroverted and hence admitted. However, even where counteraffidavits have not been filed, or where they have been stricken, the moving party should not be awarded summary judgment unless the affidavit in support of the motion establishes the judgment as a matter of law. (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.) Consequently, in situations where summary judgment was granted on an uncontroverted affidavit, the order will be reversed if it is apparent that the moving party’s affidavit does not support the entry of judgment as a matter of law. Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793, 450 N.E.2d 1286.

The affidavit filed by Alberto’s vice-president of management information services, in pertinent part, provides as follows:

“3. The job description for the position of senior programmer at Alberto-Culver in effect during all of February 1982, is attached to the Motion of Alberto-Culver Company as Exhibit A and incorporated herein.
4. In his position as senior programmer, Mark West does not manage any Alberto-Culver Company department or subdivision thereof, does not customarily or regularly direct the work
of any two or more other Alberto-Culver Company employees, does not have the authority to hire or fire other Alberto-Culver Company employees, does not suggest or recommend the hiring, firing, advancement, or promotion of Alberto-Culver Company employees, does not customarily and regularly exercise any discretionary powers, and does not devote more than 20% of his hours of work in the work week to activities which are not directly and closely related to the performance of his work as a senior programmer.
5. By the time of his employment by Alberto-Culver Company in February 1982, Mark West had not attained a bachelors degree from any college and was attending courses at Moraine Valley Community College which would lead to an associates degree, which is set forth in the Resume of Mark West received by Alberto-Culver Company in January 1982, a copy of which is attached hereto and incorporated herein.”

One of the seminal questions of this lawsuit is whether the senior programmer position was an executive or professional position. If it were such a position, then TEC was exempt from the licensing requirement of the PEAA. We find that the affidavit of Alberto and the job description and resume incorporated therein demonstrate that the trial court was correct in determining that there was no genuine issue of. fact as to whether the senior programmer position was an executive or professional position.

Section 4 of the PEAA (Ill. Rev. Stat. 1981, ch. 111, par. 904) provides in relevant part:

“It shall be unlawful for any person to act as an employment counsellor, or to advertise, or assume to act as an employment counsellor, without first obtaining a license of such employment counsellor, from the Department of Labor.”

Certain persons are exempted from the licensing requirement if they meet the exemption requirements of section 14 (Ill. Rev. Stat. 1981, ch. 111, par. 914):

“The term ‘employment agency’ means any person engaged for gain or profit in the business of securing or attempting to secure employment for persons seeking employment or employees for employers. However, the term ‘employment agency’ shall not include any person in the business of management consulting or management executive recruiting, and who in the course of such business is retained by, acts solely on behalf of, and is compensated solely by, an employer to identify, appraise or recommend an individual or individuals for consideration for an executive or professional position ***.”

Nowhere does the Act define the terms executive or professional and Alberto urges this court, as it did the trial court, to use the definitions found in the Fair Labor Standards Act employed by Illinois under its minimum wage law. (Ill. Rev. Stat. 1981, ch. 48, par. 1004a(2)(E).) The minimum wage law first employed the Federal definitions effective January 10, 1977, pursuant to Public Act 79 — 1523. (Ill. Ann. Stat., ch. 48, par. 1004a (legislative history) (Smith-Hurd Supp. 1984-85).) The exemption of a business engaged in recruiting persons for executive or professional positions from the licensing requirement of the PEAA was enacted on July 26, 1967, pursuant to Senate Bill No. 667 (1967 Ill. Laws, at 2046), and that portion of the Act has not been changed.

The Federal definitions were issued pursuant to the Fair Labor Standards Act (29 U.S.C. sec. 213 (1982) and are codified at 29 C.F.R. pt. 541. An executive is defined as any employee:

“(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department of [sic] subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more other employees therein; and
(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
(d) Who customarily and regularly exercises discretionary powers; and
(e) Who does not devote more than 20 percent *** of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through,(d) of this section; *** and
(f) Who is compensated for his services on a salary basis at a rate of not less than $155 per week ***.” C.F.R. sec. 541.1.

A professional is defined as one whose primary duty consists of performing:

“(a) ***
(1) Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study *** or
(2) Work that is original and creative in character in a recognized field of artistic endeavor * * * and the result of which depends primarily on the invention, imagination, or talent of the employee, or
(3) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he is employed; and
(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and
(c) Whose work is predominatly [sic] intellectual and varied in character *** and is of such character and that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
(d) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in paragraphs (a) through (c) of this section; and
(e) Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week ***.” 29 C.F.R. sec. 541.3.

The uncontroverted averments in Alberto’s affidavit explicitly demonstrate that the senior programmer position filled by Mark West is not an executive or professional position as defined above. Also, the senior programmer job description does not suggest that the position would entail the supervisory powers, discretionary activities, management responsibilities or advanced knowledge contemplated by the definitions. Whether these definitions should apply to the PEAA remains for consideration in light of their applicability to the Illinois minimum wage law.

Our supreme court has said that “[s]tatutes which relate to the same thing or to the same subject or object are in pari materia although they were enacted at different times,” and that such statutes should be construed together. (People v. Wallace (1920), 291 Ill. 465, 470, 126 N.E. 175.) Both Illinois statutes in question here relate to the same subject, employment, and both separate executives and professionals as exceptions to their general statutory provisions. A reading of both statutes discloses a legislative determination that executive and professional positions are not the type warranting the protections afforded by either the minimum wage law overtime provision or the PEAA. The customary nature of these positions and their corresponding responsibilities remove them from the ambit of generic legislative action in terms of overtime. compensation and protection afforded them from unlicensed employment agencies. The need for a uniform definitional source thus becomes imperative where, as here, the same terms are used in different statutes that relate to the same subject, the same class of persons, and that treat that class of persons in a similar fashion.

Additionally, it is worth noting that the sections now comprising the PEAA were formerly included under chapter 48, entitled “Employment,” along with the minimum wage law, but were transferred to chapter 111, “Professions and Occupations,” as part of the revision program of the Illinois Law Revision Commission. (See Ill. Rev. Stat. 1977, ch. Ill, disposition table, at 161.) Therefore, the minimum wage law and the PEAA will be treated by this court as in pari materia, and the definitions of executive and professional used in the minimum wage law will similarly be used under the PEAA. Enforcement of the PEAA will also be facilitated under such a construction because the State Department of Labor will have a codified definition of these terms with which to work, and does not need to have the matter resolved anew each time a case is brought.

By applying the Federal definitions of the terms executive and professional to the PEAA, we find that the trial court did not err in determining that no genuine issue of fact existed as to whether the senior programmer position was an executive or professional position. The trial court correctly determined that the label executive or professional could not properly be placed on the senior programmer position at Alberto.

The final issue presented for review is whether, as a matter of law, judgment should still have been entered for Alberto. This issue focuses on whether TEC may still recover under its contract with Alberto in the absence of an employment agency license. TEC maintains that the PEAA neither declares contracts in violation of it to be void, nor does its language bar any recovery. TEC further maintains that because the act expressly permits nonlicensed agencies, a violation of the licensing provision is not an affront to public policy and does not preclude a recovery by TEC for services rendered.

The only prior relevant case seeking the recovery of fees in the absence of a PEAA license, brought under this statute’s predecessor, was Zinn v. Parrish (N.D. Ill. 1977), 461 F. Supp. 11, where the agent of a professional football player brought an action against the player to recover commissions allegedly due under their contract. The district court denied the claim because the plaintiff was not licensed pursuant to the statute. In a very terse manner, the court stated: “Defendant’s affidavit *** shows that plaintiff was not so licensed during the period of the contracts which he is now attempting to enforce. This results in an unenforceable and void contract under Illinois law,” citing Tovar v. Paxton Community Memorial Hospital (1975), 29 Ill. App. 3d 218, 330 N.E.2d 247, and In re Winston v. Kaspar American State Bank (1962), 36 Ill. App. 2d 423, 184 N.E.2d 725. (461 F. Supp. 11, 13.) An examination of Tovar and Winston, however, demonstrates that they are unpersuasive authority for the court’s position because in both cases there was either a statute or ordinance explicitly prohibiting the collection of fees by a person who performed services either as a doctor (Tovar) or real estate salesman (Winston) in the absence of the appropriate license. There is no such explicit provision under the PEAA as it was written when applied in Zinn, nor is there such a provision now. Thus, we do not find Zinn dispositive of this issue.

In Illinois, generally, a statute which declares an act illegal and which imposes a penalty for its violation renders a contract for the performance of such an act void and unenforceable. (See Broverman v. City of Taylorville (1978), 64 Ill. App. 3d 522, 526-27, 381 N.E.2d 373.) Also, “[n]o recovery can be had by either party to a contract the performance of which involves the violation of an existing law.” (64 Ill. App. 3d 522, 527.) The PEAA makes it unlawful to place job applicants in nonprofessional and nonexecutive positions without first obtaining a license, and violations of the licensure requirement are Class B misdemeanors. (Ill. Rev. Stat. 1981, ch. Ill, par. 904.) We have already determined that TEC did not place the applicant involved here in a professional or executive position. Logic dictates, therefore, that if TEC is not placing persons in professional or executive positions, then it must be considered an employment agency within the terms of the PEAA and must possess a license to act as such. Since TEC placed an applicant in such a nonexempt position, without a license, the contract is void.

TEC argues, however, that because the PEAA does not declare contracts in violation of it to be void, and because the PEAA does not by its terms bar any recovery, it should be allowed to recover from Alberto even in the absence of the license. We find this contention to be without merit.

The PEAA requires all employment agencies to secure a license before operating as such. As stated in relevant part in section 1 of the PEAA:

“The application for such license shall be filed with the Department of Labor ***.
* * *
Each applicant for a license shall file with the application a schedule of fees, charges and commissions, which he intends to charge and collect for his services, together with a copy of all forms and contracts to be used in the operation of the agency.” (Ill. Rev. Stat. 1981, ch. 111, par. 901.)

That section concludes as follows:

“It shall be unlawful for any employment agency to charge, collect or receive a greater compensation for any service performed by it than is specified in such schedule filed with the Department of Labor. It shall be unlawful for any employment agency to collect or attempt to collect any compensation for any service not specified in the schedule of fees filed with the department.” Ill. Rev. Stat. 1981, ch. 111, par. 901.

The plain language of the statute makes it clear that the Department of Labor will not issue a license to a person who does not file a schedule of fees and other necessary documentation when .applying for a license. When the schedule is filed and the license issued, no fee can be charged, collected or received in excess of the amount specified in the schedule, or for any service not specified therein. Consequently, we read section 1 of the PEAA as precluding any recovery of fees for services performed in the absence of a properly filed schedule. The fact that TEC may have believed that it was exempt from the licensure requirement, and therefore did not apply for such a license or file a schedule, does not persuade this court otherwise. The PEAA was designed to correct and prevent abusive practices in the area of employment agencies. (See National Talent Associates, Inc. v. Holland (1979), 76 Ill. App. 3d 556, 563, 395 N.E.2d 142.) Strict adherence to the requirement of the PEAA is therefore necessary in order that its protective measures are not thwarted. We are mindful of the fact that a strict and literal application of the PEAA in the instant matter may fall harshly upon TEC. That harshness, however, is offset by the need for uniform principles to be applied in future cases.

Accordingly, the failure of TEC to secure the necessary license and file the appropriate schedule precludes it from recovering any fees for services rendered to Alberto in this case. The entry of summary judgment in favor of Alberto was correct and the decision of the trial court is therefore affirmed.

Affirmed.

PERLIN and BILANDIC, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    RONALD CWIK et al., Plaintiffs-Appellants, v. FOREST PRESERVE DISTRICT OF COOK COUNTY, Defendant-Appellee.
    First District (5th Division)
    No. 82—2633
    Opinion filed March 15, 1985.
    Ronald L. Drozdzik, of Johnson & Drozdzik, Ltd., of Chicago, for appellants.

      Michael W. Ward, of O’Keefe, Ashenden, Lyons & Ward, of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs Ronald Cwik and Cynthia Lovitseh brought this action against the Forest Preserve District of Cook County for injuries sustained while snowmobiling at Miller’s Meadow, owned and operated by defendant. Plaintiffs’ pleadings alleged that defendant was guilty of wilful and wanton negligence. Defendant filed a motion to dismiss, which was granted by the trial court. The court held that the Illinois Snowmobile Registration and Safety Act (Ill. Rev. Stat. 1983, ch. 951/2, par. 601 — 1 et seq.) barred plaintiffs’ action. Plaintiffs appeal.

Plaintiffs on appeal contend: (1) that the circuit court erred in holding that defendant owed no duty of care to the plaintiffs, and (2) that sections 5 — 1(1) and (J) of the Illinois Snowmobile Registration and Safety Act (Ill. Rev. Stat. 1983, ch. 95^2, pars. 605 — 1(1) and (J)), should not be interpreted as relieving the defendant from liability for acts and omissions of wilful and wanton negligence.

The parties initially agreed to postpone oral argument in this appeal to await the Illinois Supreme Court’s decision filed in Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, thereafter filed on October 19, 1984.

We note initially that the trial court heard no evidence on the merits of this case; therefore, only the matters raised in the pleadings and subsequent pretrial motions are addressed herein. Plaintiffs’ first amended complaint alleges in count I that on February 12, 1981, the Cook County Forest Preserve District owned and operated property open for use by the public for recreational purposes known as Miller’s Meadows, near Maywood. Such property was open for the operation of snowmobiles.

In Miller’s Meadows, there was an asphalt roadway, with concrete pillars on either side, supporting a steel cable extended across the roadway. The pillars, cable and roadway were in an area designated for snowmobiling. On the date of the incident, the pillars and steel cable were partially covered by snow and therefore not visible. Plaintiffs allege that these conditions created a danger of which the defendant had knowledge and should have taken measures to remedy.

Plaintiffs further pleaded that at times prior to the incident in question, the defendant had marked the area containing the pillars and cable with picnic tables and other large objects to alert snowmobilers to the location of the obstacles. On the date in question, however, the pleadings indicate that the pillars and cable were in no way marked. Then, on February 12, 1981, plaintiffs’ snowmobile, operated by Ronald Cwik and carrying passenger Cynthia Lovitsch, struck the partially hidden and concealed cable.

Count I alleged that Cwik was injured as a result of one or more of the following acts or omissions of wilful and wanton negligence; specifically, that defendant: (a) designated an area for snowmobiling which was not safe for such purposes; (b) allowed the existence of a partially hidden steel cable within an area it knew would be used for the operation of snowmobiles, when it knew or should have known that such cable constituted an obstruction and danger to snowmobile operators; (c) failed to post warning signs or markers within the immediate vicinity of the snow-covered cable. Count II incorporates by reference the previously set out factual allegations and asserts that plaintiff Cynthia Lovitsch was also injured by defendant in the same manner as was Cwik.

Opinion

Plaintiffs’ first contention on appeal is that the circuit court erred in holding that defendant owed no duty of care to them. Plaintiffs assert that the defendant voluntarily assumed a duty to them and therefore must act with such care as one who has such a duty or be held liable for the consequences. Specifically, they reason that since their pleadings allege that the defendant knew of the existence of the obstruction and had marked this area on previous occasions, defendant had voluntarily assumed a duty towards plaintiffs.

Defendant responds, inter alia, that plaintiffs’ complaint fails to establish a voluntary undertaking. Defendant contends that since the markings previously used to indicate the obstruction were no longer in existence at the time of the incident, the markings could have had no effect on plaintiffs.

We agree with the defendant’s argument that defendant’s conduct on prior occasions is not sufficient to establish a voluntary assumption of a duty towards plaintiffs. One who has gratuitously assumed to protect others against injury is under no obligation to continue that protection indefinitely. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80; Hubbard v. Aetna Insurance Co. (1976), 37 Ill. App. 3d 666, 347 N.E.2d 396.) Here, the fact that the defendant had marked the obstruction on previous occasions simply does not amount to the sort of conduct necessary to establish that defendant had assumed a voluntary duty to act to protect plaintiffs.

Plaintiffs’ second contention on appeal is that sections 5 — 1(1) and (J) of the Illinois Snowmobile Registration and Safety Act (Ill. Rev. Stat. 1983, ch. 951/2, pars. 605 — 1(1) and (J)) should not be interpreted as relieving the defendant of liability for acts and omissions of wilful and wanton negligence.

Both parties draw our attention to Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, in which the Illinois Supreme Court held that section 5 — 1(1) of the Illinois Snowmobile Registration and Safety Act was constitutional. That section provided as follows:

“An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.” Ill. Rev. Stat. 1983, ch. 951/2, par. 605 — 1(1).

The supreme court noted that the above section had been been amended by adding the following, effective January 5, 1984:

“Nothing in this section limits in any way liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” (Ill. Rev. Stat., 1984 Supp., ch. 95V2, par. 605 — 1(1).)

However, the court refused to apply the 1984 amendment retroactively.

Plaintiffs subsequently cited Ostergren herein as additional authority, but contend that it is inapplicable for resolution of this case because the complaint in Ostergren was predicated upon ordinary negligence, not wilful and wanton negligence as is alleged here. We disagree. Although the complaint in that case was based on negligence, the decision remains the primary guidance offered by the Illinois Supreme Court on the applicability of the pertinent provisions of the Illinois Snowmobile Registration and Safety Act. Ill. Rev. Stat. 1983, ch. 951/2, par. 601 — 1 et seq.

In Ostergren, a majority of the supreme court held that the 1984 amendment allowing recovery for wilful or malicious failure to guard or warn against a dangerous condition would not be applied retroactively. The court stated, “This amendment became effective in January of 1984, long after the plaintiff was injured and this litigation had begun, and after the appellate court opinion had been filed. We decline to give retroactive application to the 1984 amendment.” Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, 135-36.

Here, plaintiffs were injured February 12, 1981, long before the 1984 amendment. Although the dissenting opinion in Ostergren is arguably persuasive, we are bound by the majority opinion, which held that the amendment is not to be given retroactive application. (Beagley v. Andel (1978), 58 Ill. App. 3d 588, 374 N.E.2d 929; Belden Manufacturing Co. v. Chicago Threaded Fasteners, Inc. (1967), 84 Ill. App. 2d 336, 228 N.E.2d 532.) Because the 1984 amendment is not applicable herein, the statute in force at the time of this accident specified that defendant owed no duty for use of the premises by others for snowmobiling. Therefore, the trial court did not err in dismissing plaintiffs’ complaint.

For the foregoing reasons, the trial court’s order dismissing plaintiffs’ complaint is affirmed.

Affirmed.

SULLIVAN and PINCHAM, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR JOHNSON et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 81—1779, 81—1861 cons.
    Opinion filed March 29, 1985.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant Victor Johnson.
    Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant Darnell Jones.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Maria Elena Gonzales, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendants Victor Johnson and Darnell Jones were each convicted of unlawful restraint, aggravated kidnaping, deviate sexual assault, armed robbery, rape and murder. The defendants were sentenced to extended terms for each offense except that the offenses of unlawful restraint merged into the offenses of aggravated kidnaping. Both men appeal. Johnson contends that (1) the trial court erred in denying his motion for severance and (2) the trial court erred in imposing extended-term sentences for the lesser offenses of which he was convicted. Jones contends that (1) the trial court abused its discretion by sentencing him without a complete presentence report and refusing to either order a new report or continue the sentencing hearing so that Jones’ mental health records could be obtained; (2) the trial court erred in imposing extended-term sentences for the lesser offenses of which he was convicted; (3) the court erred in imposing an extended-term sentence for murder where the conviction was based on an accountability theory and (4) the court erred in ordering his other sentences to run consecutively to the sentence for aggravated kidnaping.

On July 31, 1979, the body of a female was found in the alley behind 14729 Cooper Street in Harvey. The body was identified as that of Fannie Mae Cause. At trial, Dr. Yuksel Konacki of the Cook County medical examiner’s office testified that on July 31, 1979, he had performed an autopsy on Fannie Mae Cause. He stated that the cause of her death was a shotgun wound to the chest at very close range.

Two days later, at approximately 4 a.m., defendant Jones was involved in a car accident at an intersection in Oak Park. He and a companion were arrested and taken to the hospital for treatment of injuries sustained in the accident. At the time of the arrest, police recovered a .12-gauge sawed-off shotgun and a .25-caliber pistol. Approximately an hour and a half later, Jones was taken from the hospital to the Oak Park police station. Craig Ford, the arresting officer, testified that he had advised Jones of his Miranda rights and that Jones indicated that he understood them. Officer Ford further testified that Jones told him he had witnessed a shooting in Harvey two or three days earlier. Officer Ford then contacted the Harvey police department. At about 6:30 a.m., Detective Coleman McCarthy of the Harvey police came to the Oak Park police station.

At trial, Detective McCarthy testified that he also read Jones his Miranda rights and Jones indicated he wanted to talk to him. McCarthy further testified that Jones gave him the following account of the events leading to the murder of Fannie Mae Cause: On July 31, 1979, he and Victor Johnson were driving around Chicago in a stolen car when they saw a woman walking down the street near 87th Street and King Drive. They pulled over to the curb. Jones got out of the car and walked up to a building as though to ring the doorbell. As the woman passed alongside the car, Jones forced her into it. He then robbed her of 30 cents. Johnson and Jones drove off with the woman and Jones raped her, sexually assaulted her and forced her to perform deviate sexual acts. Johnson took the Sibley Boulevard exit off the Dan Ryan Expressway and stopped the car in an alley in Harvey. He then raped the woman. The defendants allowed the woman to get dressed and they got out of the car. The moment she got out of the car, the woman began to scream and plead with the defendants for her life. Johnson slapped her and told her to stop screaming but she continued. Johnson then shot her in the chest with a shotgun. Jones told McCarthy that two days later, Johnson sawed the barrel off the shotgun. Jones, gave McCarthy Johnson’s address and a physical description of him. On cross-examination, McCarthy stated that Jones said he had told Johnson to let the woman go.

McCarthy then testified that after speaking to Jones, he went to Chicago police department Area 2 Homicide and, with their assistance, conducted surveillance of the area of Johnson’s home at approximately 5 o’clock that evening. At 6 p.m., Johnson was arrested and taken to the police station. He was given the Miranda warnings but indicated that he understood them and wanted to talk. He also signed a form waiver of his constitutional rights.

McCarthy testified that Johnson then gave him an account of the murder. McCarthy’s account of Johnson’s statement was substantially the same as Jones’ statement, although Johnson did not admit raping the woman. McCarthy asked Johnson if he would make a written statement. Johnson agreed but said he could not write legibly. McCarthy’s secretary then typed the notes McCarthy had made of Johnson’s statement. Johnson read the typed statement and signed it.

On August 8, 1979, McCarthy went to see Jones again in order to get a written statement and to determine whether Jones had anything to add to his account. After being read his Miranda rights, Jones dictated his statement to McCarthy, read it and signed it.

Defense counsel objected prior to McCarthy’s testimony regarding the statements he received from Johnson and Jones. The court first admonished the jury that Jones’ statement was to be considered only as to Jones and not as to Johnson. When McCarthy started to testify about Johnson’s statement, the court admonished the jury to consider the statement only in regard to Johnson and not as to Jones. At that time, the court again advised the jury that McCarthy’s testimony as to Jones’ statement could be considered only as to Jones.

Assistant State’s Attorney Michael Madden also testified that on August 3, 1979, he took a written statement from Victor Johnson about the events of July 31. Johnson’s statement to Madden was substantially similar to his statement to McCarthy. In his statement to Madden, Johnson stated that after he returned to Chicago, he pulled out the shell that was fired from the shotgun, burned the rear part off and threw the cap away on his neighbor’s roof. The court admonished the jury that Madden’s testimony had been received as to Johnson only and not as to Jones. All three written statements were published to the jury after further admonishments by the court.

Johnson and Jones were tried before the same jury. Johnson testified at trial but Jones did not. After closing arguments were heard, the jury was instructed that any evidence limited to one defendant was not to be considered as to the other defendant. The jury returned guilty verdicts against each defendant for murder, armed robbery, rape, aggravated kidnaping, deviate sexual assault and unlawful restraint.

We first address the common issue presented for review. Both defendants appeal the imposition of extended-term sentences for the lesser offenses of which they were convicted. In addition to extended terms of 80 years for murder, defendants were each sentenced to extended terms of 60 years for rape, 60 years for deviate sexual assault,' 60 years for armed robbery and 30 years for aggravated kidnaping.

In People v. Jordan (1984), 103 Ill. 2d 192, 205-06, 469 N.E.2d 569, 575, our supreme court recently clarified the law relating to the propriety of imposing multiple extended-term sentences. The court reaffirmed its decision in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, and stated that when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may be imposed only for the conviction within the most serious class and only if that offense was accompanied by brutal or heinous behavior.

In the instant case, the trial court found that all the offenses of which both men were convicted were accompanied by brutal and heinous behavior. The extended-term sentences for murder were thus appropriate under the Jordan standard. The extended terms imposed for the lesser offenses, however, were improper and must be vacated. Both defendants should be resentenced for the lesser offenses.

Johnson also contends that the trial court erred in denying his motion for severance where he and Jones were tried before the same jury and where Jones’ corroborative statement implicating Johnson was not subject to cross-examination because Jones did not testify. In support of his argument, Johnson cites Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. In Bruton, the supreme court held that the introduction into evidence of the statement of a nontestifying defendant implicating a codefendant violated that defendant’s sixth amendment right to confrontation, regardless of whether the jury was given appropriate limiting instructions. The Illinois Supreme Court, however, has held that no violation of the Bruton rule occurs where the defendant claiming the benefit of that rule has himself made a similar inculpatory statement which is also in evidence. People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136; People v. Cart (1981), 102 Ill. App. 3d 173, 429 N.E.2d 553; People v. Moore (1978), 65 Ill. App. 3d 712, 382 N.E.2d 810, cert, denied (1980), 444 U.S. 1043, 62 L. Ed. 2d 729, 100 S. Ct. 729.

Although at trial Johnson denied any involvement in the crimes against Fannie Mae Cause, his two signed inculpatory statements were introduced into evidence, as was the oral statement he made to Detective McCarthy. Johnson’s statements were corroborative of Jones’ and were even more detailed. We find, therefore, that there was no violation of the Bruton rule. The trial court did not err in denying Johnson’s motion for severance.

Jones’ first argument on appeal is that the trial court abused its discretion in sentencing him after defense counsel informed the court that the presentence report was incomplete. At Jones’ sentencing hearing, his counsel pointed out that the report failed to include any mention of Jones’ stay at the Tinley Park Mental Hospital and, in fact, indicated that Jones had no mental health history. Defense counsel asked the court to reorder a presentencing investigation and requested that the sentencing hearing be continued in order that Jones’ mental health records could be obtained. The court overruled the request and noted that the report had been available to defense counsel for one week prior to the sentencing hearing.

In People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, the supreme court reversed an order of the appellate court which had required the defendant to be resentenced because defendant’s presentence report was insufficient. In Meeks, the presentence report had not mentioned sentencing alternatives or community programs to assist in defendant’s rehabilitation as required by the Uniform Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—2(a)(2).) Although the supreme court agreed with the finding of the appellate court that the presentence report in Meeks did not fully comply with the requirements of the code, it held that the issue had not been preserved for review. The court noted that counsel had not called the matter to the trial court’s attention prior to defendant’s sentencing hearing, despite the fact that the presentence report had been available to and read by-counsel three days prior to the hearing. The supreme court found that any objections to the presentence report had been waived.

Similarly, in the case at bar, Jones’ presentence report was available to counsel for at least seven days prior to Jones’ sentencing hearing. Counsel, however, did not move for a new report or for a continuance to obtain his client's mental health records until the hearing was underway. Therefore, counsel failed to properly preserve this issue for review. The trial court did not abuse its discretion in sentencing Jones without the additional data. See People v. Sigman (1976), 42 Ill. App. 3d 624, 356 N.E.2d 400, cert, denied (1977), 434 U.S. 839, 54 L. Ed. 2d 102, 98 S. Ct. 133.

Jones next argues that the court erred in sentencing him to an extended term for murder. He contends that his behavior was not sufficiently brutal or heinous or indicative of wanton cruelty to warrant the imposition of an extended term. In support of his argument, Jones points out that the basis of his conviction was felony murder and that he did not kill the victim.

It is well established that a trial court has wide discretion in imposing a sentence, and that its determination should not be altered on review absent a clear abuse of that discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Further, in imposing an extended-term sentence, the court should properly focus on the offense rather than the nature of the offender’s participation. (People v. Rowe (1983), 115 Ill. App. 3d 322, 329, 450 N.E.2d 804, ajfd (1984), 103 Ill. 2d 192, 214-15, 469 N.E.2d 569; People v. Gray (1980), 87 Ill. App. 3d 142, 153, 408 N.E.2d 1150, cert, denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745.) Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections provides that the court may impose an extended-term sentence when the defendant is convicted of any felony and the court finds the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).

In Rowe and Gray, this court upheld the imposition of extended-term sentences where the defendant’s conviction was based on an accountability theory and where the court found there was brutal and heinous conduct on behalf of the defendant indicating wanton cruelty.

At Jones’ sentencing hearing, the court stated:

“*** By way of aggravation, clearly the defendant himself caused serious harm. Fortunately for him he did not pull the trigger and he is the only one, I think, is going to benefit from that. Otherwise I think he would be looking at the possibility of capital punishment.
* * *
This defendant, while he didn’t grab the gun and shoot, he certainly, from the testimony and the evidence that is in, facilitated and helped place the idea of such conduct into his co-defendant’s mind.
The court further finds that these offenses and each of them were accompanied by exceptional brutality or heinous behavior indicative of wanton cruelty such as to authorize extended term.”

It was not error to sentence Jones to an extended term for murder.

Finally, Jones contends that the trial court erred in sentencing him to consecutive sentences. He maintains that the court’s determination that such sentences were necessary for the protection of society was based on allegedly unreliable testimony regarding Jones’ original arrest in Oak Park and his attempts to escape while in custody. Section 5 — 8—4(b) of the Unified Code of Corrections provides that the court may impose a consecutive sentence only if, having regard to the nature and circumstances of the offense and the history and character of the defendant, it determines that such a term is required to protect the public from further criminal conduct by the defendant. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b).

At Jones’ sentencing hearing, an assistant State’s Attorney testified that he had knowledge of two efforts by Jones to escape from custody. Defense counsel objected on the basis that this was hearsay. In determining what evidence is admissible at a sentencing hearing, the trial court is not limited by the ordinary rules of evidence. (People v. Williamson (1979), 69 Ill. App. 3d 1037, 388 N.E.2d 240.) Further, defense counsel was able to cross-examine the assistant State's Attorney at the hearing regarding the attempted escapes. After a review of the record, we find that the evidence was competent and that the court did not abuse its discretion in sentencing Jones to consecutive sentences in order to protect society.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed and remanded in part.

Affirmed in part and reversed and remanded in part.

WHITE, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    DRYVIT SYSTEM, INC., Plaintiff-Appellant, v. CHESTER RANDAL RUSHING, Defendant-Appellee.
    First District (4th Division)
    No. 84—2147
    Opinion filed March 28, 1985.
    Schaffenegger, Watson & Peterson, Ltd., of Chicago (Donald G. Peterson and Karla Wright, of counsel), for appellant.
    Chapman & Cutler, of Chicago (Michael W. Ford, John B. Huck, Richard A. Wohlleber, and David S. Barritt, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Chester Randal Rushing, the defendant, was regional sales manager of Dryvit System, Inc., the plaintiff. In consideration for continued employment he signed an agreement not to compete with Dryvit nor disclose confidential information at the conclusion of his employment. Dryvit brought this action, contending that after leaving its employment Rushing violated the agreement. Dryvit sought to enjoin Rushing based on the terms of the agreement, along with other relief. The trial court granted Rushing’s motion for judgment on the pleadings and consequently denied the injunction. The court further denied Dryvit leave to amend the complaint to severely limit the geographic scope of injunctive relief sought to an area substantially less than the area fixed by the agreement. The propriety of the denial of the amendment and the scope of the agreement, more particularly the geographic scope, form the issues on appeal.

Rushing went to work for Dryvit in February, 1978. The complaint alleges that Dryvit was engaged in the manufacture and distribution of exterior wall insulation under the copyright “Dryvit Outsulation.” It alleged that Dryvit does business throughout the entire United States, as well as Canada, Mexico, Europe, the Middle East and the Far East. It has a nationwide network of distributors. The product has been applied to over 40,000 buildings in the United States. On July 18, 1979, after Rushing had been with Dryvit for over 16 months he signed the rather brief two-paragraph agreement. The first paragraph concerns confidential information and trade secrets and is not in issue on appeal. The agreement reads:

“In consideration of my continued employment by DRYVIT SYSTEM, INC., I do hereby agree and covenant:
* * *
2. It is understood and agreed that I will refrain from engaging, directly or indirectly, in business whose activities are competitive with the activities of DRYVIT SYSTEM,' INC. for a period of two (2) years from the date of termination of employment. It is further agreed that while I am in the employ of DRYVIT SYSTEM, INC. and for a period of two (2) years from the date of termination of employment, that I will not, directly or indirectly, for myself or any other person, firm or corporation, in any way, solicit business of a type similar to that solicited by DRYVIT SYSTEM, INC. from any of DRYVIT SYSTEM INC.’s present customers, nor will I become associated, directly or indirectly, with any business, firm, person or corpo ration whose activities are competitive with those of DRYVIT SYSTEM, INC. in any area of the Continental United States in which DRYVIT SYSTEM INC. is doing business at the time of the termination of my employment.” (Emphasis added.)

Rushing resigned on March 8, 1983. A week later he began employment with a competitor. The instant action was filed some 15 months later, on June 13, 1984.

Rushing filed a motion for judgment on the pleadings. As refined on appeal the question concerns the geographic scope of the agreement. Rushing contends that it is per se void because it is a general restraint of trade and also that it is void because it is unreasonable. Rushing further claims the agreement lacks consideration.

Dryvit sought leave to amend its petition for preliminary injunction to considerably narrow the scope of its prayer for relief. Under the terms of the agreement, Rushing was restricted for two years, without geographical limitation, from either engaging in a competitive business or soliciting business from Dryvit's present customers and further from associating with anyone competitive with Dryvit within the continental United States. In contrast, Dryvit’s proposed amendment to the complaint would prohibit Rushing from soliciting “a customer of Dryvit in the continental U.S. from a period of July 18, 1979 to March 8, 1983 [sic] in which individual or entity had been contacted by defendant as part of his employment agreement with Dryvit.” The trial court denied the motion to amend the prayer for relief and granted the motion for judgment on the pleadings and, consequently, denied the injunction.

The propriety of the proposed amendment must first be considered before we can determine the reasonableness of the agreement itself, which will be discussed subsequently. In denying leave to file the amendment, the trial court believed that this amendment would actually reform the contract in that the amendment was tantamount to writing a new contract. The court commented that to allow the amendment under these circumstances would have the effect of discouraging the narrow and particularized draftmanship which should be reflected in written agreements.

House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21, treated the issue of amendments. The court stated “[wjhile we do not hold that a court of equity may never modify the restraints embodied in a contract of this type and enforce them as modified, the fairness of the restraint initially proposed is a relevant consideration to a court of equity.” (37 Ill. 2d 32, 39, 225 N.E.2d 21.) A lengthy and well-considered article, Blake, Employee Agreements Not to Compete, 73 Harv. L. Rev. 625 (1960), discusses the subject of severance of certain conditions from post-employment restraints. (73 Harv. L. Rev. 625, 681-84.) The author comments that courts and writers have engaged in a hot debate as to whether severance should ever be applied to these contracts. The author notes that the arguments against changing these covenants are that they have an “in terrorem effect on employees who respect their contractual obligations and on competitors who fear legal complications if they employ a covenantor, or who are anxious to maintain gentlemanly relations with their competitors.” (73 Harv. L. Rev. 625, 682.) Further, the author notes that if employers are confident that the courts will pare down covenants they will fashion truly ominous covenants. (73 Harv. L. Rev. 625, 683.) Hiyane adopted the same rationale and commented that to stake out unrealistic boundaries imposes on the employee the risk of proceeding at his peril with the burden of expensive litigation to ascertain the scope of his obligation. House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 39, 225 N.E.2d 21.

The Restatement (Second) of Contracts considers the unenforceability of contracts on the grounds of public policy and, more particularly, the issue of severability. (Restatement (Second) of Contracts sec. 184 (1981).) Section 184 provides that if part of the agreement is unenforceable, the court might nevertheless enforce the balance of the agreement if the party seeking enforcement “did not engage in serious misconduct.” Restatement (Second) of Contracts sec. 184(1) (1981).

Keeping in mind the foregoing principles, we now turn to consider the agreement in the present case. It is apparent that the agreement is very broad. As Rushing states, it prevents him from engaging in any competitive business anywhere in the United States; from soliciting business from companies that have never been customers of Dryvit and which Rushing did not even know about until after he had left Dryvit’s employ; from being employed in a nonselling position in a competitive business where he is not in contact with any customer; and from being employed in a noncompetitive division of a corporation which had another division which did compete with Dryvit. The validity of a contract and restraint of competition is determined by its reasonableness in terms of its effect on the parties and the public. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37, 225 N.E.2d 21.) It is reasonable if its enforcement will not be injurious to the public, nor cause undue hardship to the promissor, and is not greater than is necessary to protect the employer. It must be reasonable as to time, geographical scope and activity. (37 Ill. 2d 32, 37, 225 N.E.2d 21; 73 Harv. L. Rev. 625, 674-81.) However, the unlimited geographic restraints on competitive activities and solicitation of business and the further restriction from association with a corporation whose activities are competitive in the continental United States are patently beyond the needs of the employer to protect his interest and are unduly harsh on the employee.

Dryvit, however, defends the geographical scope. First, it argues that the court cannot determine the geographic scope from the agreement itself and extrinsic evidence, therefore, is necessary. With this we disagree. The complaint alleges that Dryvit conducts business in a number of foreign countries, as well as in the entire United States. Dryvit suggests that evidence will show what the exact geographic scope is intended under the agreement. However, in order to permit this evidence, Dryvit must first show that the contract is ambiguous. (Keep Productions, Inc. v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 364 N.E.2d 939.) The agreement is certainly not ambiguous on its face, and Dryvit has not alleged, beyond the mere assertion in its pleadings, how an ambiguity exists in the instant agreement.

Secondly, Dryvit contends that case law permits such broad agreements. The case that draws most comments on the subject is Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 451 N.E.2d 1338, which upheld a covenant that had no geographic limitation. Most significant in Lawter, however, is that it did not involve a post-employment restriction such as the one we have here. Lawter involved the sale of a business for which John Carroll received $550,000. The interest to be protected there is the value of the goodwill that Lawter purchased. This is different than the protection that the employer seeks in post-employment covenants. In the sale of a business, the bargaining power is not uneven, as it is generally in an employer/employee relationship where the courts are more likely to declare a post-employment restraint as invalid than they would be in the sale of goodwill. House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37, 225 N.E.2d 21; Bauer v. Sawyer (1956), 8 Ill. 2d 351, 356, 134 N.E.2d 329; 73 Harv. L. Rev. 625, 646-48; Restatement (Second) of Contracts sec. 188(2Xa) comments b, f and g (1981); Williston, Contracts sec. 1638 (3d ed. 1972).

Dryvit also cites a number of other cases subsequent to Hiyane for the proposition that a broad geographical application does not automatically invalidate a post-employment restraint. In each of the following cited cases, however, although there were no geographical restrictions, the geographical prohibition was qualified by an activity restraint. (See 73 Harv. L. Rev. 625; Restatement (Second) of Contracts sec. 188, comments d and g (1981).) That is, in Wolf & Co. v. Waldron (1977), 51 Ill. App. 3d 239, 366 N.E.2d 603, although there was no geographical limitation, the employee was only restrained from contacting former clients. Similarly Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300, imposed a three-year limitation without geographical restriction except that the employee was only restricted from contacting certain customers and only with regard to confidential information. Activity restraints, as well as restrictive covenants concerning confidential information and trade secrets, are subject to a less stringent test of reasonableness than that which is applied to restrictions with a geographical limitation. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37-38, 225 N.E.2d 21; 73 Harv. L. Rev. 625, 675, 679; Hutter, Drafting Enforceable Employee Noncom-petition Agreements To Protect Confidential Business Information; A Lawyer’s Practical Approach to the Case Law, 45 Alb. L. Rev. 311, 332-33 (1981).) In Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060, without geographic limitation, the employee was restricted from soliciting any of the employers’ customers. The instant case did not involve the sale of a business and goodwill, nor did it contain any activity restriction.

Consequently, on the issue of amendment the standard is the fairness of the restraints initially imposed. Considering the very broad geographical scope which is clearly unreasonable in the present agreement, and further considering that the agreement makes no attempt to reasonably limit the restrictions, thereby placing the employee in the position of peril, we believe the instant agreement is unfair. The comments of Hiyane concerning the expensive litigation that an employee must engage in to determine the reasonableness of the agreement is certainly borne out here. The trial court properly exercised its discretion in this equitable manner in determining that the agreement should not be modified.

Since the agreement is not modified, the motion for judgment on the pleadings attacks the agreement directly. Rushing, as we mentioned before, attacks the agreement’s geographical scope on two grounds. First, he contends it is unreasonable under Hiyane. We have already considered that argument in deciding the issue of amendment and found that indeed it is unreasonable. Consequently, the trial court was correct in dismissing the complaint. Secondly, Rushing alternatively contends that the agreement is per se invalid as a general restraint of trade. Hursen v. Gavin (1896), 162 Ill. 377, 44 N.E. 735, which Rushing cites to support this assertion, defined general restraints of trade in two ways. Contracts in restraint of trade were general if “a party binds himself not to carry on his trade or business at all, or not to pursue it within the limits of a particular country or State.” (162 Ill. 377, 380, 44 N.E. 735.) Hursen concluded that general restraints of trade were invalid. In the instant case, Rushing asserts that because the agreement lacks geographical scope in two respects and further includes a restriction covering the entire continental United States in a third respect, the agreement is a general restraint of trade. Dryvit responds that Hiyane sets forth a new standard that examines all restraints on a reasonable standard, thus obviating the per se rule. With that position, we agree. While here we are dealing with a general restraint of unlimited geographic scope, rather than a general restraint with a lack of time limitation as in Hiyane, the court nonetheless in Hiyane had before it a general restraint of trade but considered it on the standard of reasonableness. We conclude that the court was establishing a standard of reasonableness to be considered in all restraint of trade cases. That is a position adopted by the Restatement (Second) of Contracts sec. 188 (1981). Comment d of this section notes that the extent of the restraint, in particular, by geographical area, will be evaluated in terms of its reasonableness under the circumstances. (Restatement (Second) of Contracts sec. 188 comment d (1981).) As one commentor noted, this is the old view and is no longer valid under the modem view of reasonableness. (Hutter, Drafting Enforceable Employee Non-Competition Agreements To Protect Confidential Business Information; A Lawyer’s Practical Approach to the Case Law, 45 Alb. L. Rev. 311, 329-30 (1981).) Williston on Contracts approves of authority that states that the old view, that any restraint of trade covering an entire State or the nation is per se unreasonable, is no longer, controlling, as the boundaries of States are not those of trade and commerce. (Williston, Contracts sec. 1638, at 111 (3d ed. 1972).) Thus, the reasonableness standard accommodates geographic limitations. In a given situation it may be totally reasonable to both the employer and the employee to have a statewide limitation, whereas under another circumstance, as many of the cases hold, the limitation of just a few miles is unreasonable.

Finally, Rushing argues that there was no consideration for this contract and it is, consequently, void. Since we have already determined that the contract is void, we will not reach this issue.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.