author: PRESIDING JUSTICE LINN

text:
    MARILYN DAVIS, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—1436
    Opinion filed June 14, 1984.

      Neil E Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellant.
    Mary Kennedy and Louis P. Svendsen, both of Chicago, for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff brought this action seeking administrative review of a final decision by defendant, the Illinois Department of Labor Board of Review, that she was ineligible for unemployment benefits because she left her employment voluntarily without good cause attributable to her employer. Defendant appeals from the circuit court’s order reversing its decision, contending that the evidence amply supported its finding and decision. Plaintiff contends the appeal is moot because plaintiff’s benefits have been paid to her, and there are no statutory means for recoupment.

On April 2, 1982, plaintiff left her employment with the Southern School (School), and on April 4, 1982, applied for unemployment insurance benefits. On April 20, 1982, Jerry Rothman, executive director of the School, wrote to the Department of Labor suggesting that plaintiff was not eligible for benefits because she had voluntarily left her employment, the School did not ask her to leave and no consideration was given to terminate her. The record also contains a letter of resignation from plaintiff to Rothman dated January 25, 1982.

Plaintiff’s claim for unemployment insurance benefits was denied by the Department of Labor claims adjudicator who found that on April 2, 1982, plaintiff voluntarily left work without good cause attributable to her employer. Plaintiff took an administrative appeal to a referee, who, following an evidentiary hearing, found that plaintiff was hired to set up preschooling on October 3, 1978, for three- to five-year-old children but that by September 1981 most of the funding had been cut off and she was required to work in a fully funded program for the emotionally disturbed. By the end of the year she was working completely with the emotionally disturbed. The record shows that by January 25, 1982, plaintiff had found the work extremely stressful, and she was not getting any help. Further, she was not trained or qualified to handle these children, and as a result, she resigned, effective April 2, 1982. The referee made the following conclusion, which was later affirmed.

“Sometime, in 1981, the Claimant [plaintiff, by having done the work so long, had accepted its conditions, so that when she left, she departed for reasons other than those connected with the employment. There was no medical evidence that she was physically unable to perform her work and was, therefore, not exempt from the disqualification provisions of Section 601A of the Act.”

Plaintiff, the only witness at the administrative hearing, testified that on October 3, 1978, she was hired by the School as a child development coordinator to set up a preschool program for normal children. Her duties were primarily administrative and consisted of hiring and supervising the teachers, working with parents and recruiting children. She possessed an undergraduate degree in working with mentally retarded children, and a master’s degree in early childhood education. She was required to incorporate the emotionally disturbed teenagers from an agency (apparently a community mental health agency to which the School was administratively connected) into the program for normal preschoolers, children aged three to five years old. When she started work, she advised her employer that she had no experience with emotionally disturbed children.

From September of 1980 until September of 1981, funding for the preschool program was diminishing, and in addition to her administrative duties she was required to serve the seriously disturbed children whom the School first began to accept during this period. Plaintiff explained that emotionally disturbed children presented behavior disorders involving aggressive and destructive behavior, but mentally retarded children did not. She also maintained that she was not trained, qualified, or experienced in teaching emotionally disturbed children. But when she explained that she did not feel qualified to teach such children and asked for assistance, she received none.

In addition to her new duties she was also required to supervise a student teacher even though she had asked for a trained professional to help her in the classroom. As a result of her increased duties, she was required to work late and, occasionally, on Saturdays to keep up with her duties. When another director was hired, she found herself reporting to two supervisors with no means of resolving conflicts between them. She asked for a change of supervisors without results. She developed headaches and became very upset. A professional psychotherapist, who was not a physician, advised her the job was causing her stress that would continue as long as she remained employed in her position. She explained this to her supervisor, but he offered no assistance. On January 25, 1982, she gave 10 weeks’ written notice to her employer.

In reversing the administrative decision the circuit court found that the work was stressful and that plaintiff had good cause to resign when she was required to teach emotionally disturbed children for which she was not qualified.

Plaintiff initially contends that the issue of plaintiff’s entitlement to unemployment insurance benefits is rendered moot by the payment of benefits to plaintiff with no recourse available to defendant to recoup the money paid. Plaintiff’s argument is based upon her reading of section 900 of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 490), which, plaintiff argues, does not allow defendant to recoup benefits paid to plaintiff even if this court should decide that the circuit court was in error in reversing the administrative decision. While section 900, dealing specifically with recoupment, speaks of repayment of benefits only when there has been a reconsidered finding or reconsidered determination made by either a claims adjudicator or a referee, it is argued that section 900 should be read in conjunction with section 706 (Ill. Rev. Stat. 1983, ch. 48, par. 456), which requires prompt payment of benefits and provides that if benefits are paid pursuant to a decision subsequently overturned, the “employer’s benefit wages” under section 1502 (Ill. Rev. Stat. 1983, ch. 48, par. 572) shall be computed as if such had been the finding or determination of the claims adjudicator. Plaintiff concedes that a decision of this court on the issue of the propriety of the trial court’s actions concerning benefits paid to her would have an effect, under sections 706 and 1502 of the Act, on the employer, but argues the issue is moot since the employer is not a party to this appeal.

An appeal may be rendered moot where a party accepts the judgment and complies with it as in the recent case of Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 437 N.E.2d 638. There, a taxpayer did not challenge an appellate court decision and paid the taxes due after the supreme court had granted leave to appeal. However, where a party does not accept a judgment against him, the cause is not moot simply because he pays the judgment even if no restitution could follow reversal since an erroneous judgment is an injury per se from which the law will intend he is or will be damnified by its continuing unreversed. Beacon Home Improvement Co. v. Paulsen (1951), 343 Ill. App. 468, 470, 99 N.E.2d 586.

Defendant maintains that the employer reasonably modified the employee’s tasks and reasonably assigned her additional duties, due to economic considerations involving the change in funding. However, section 601 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 431) does not require that the employer’s actions be unreasonable before the employee is eligible for benefits, but focuses, instead, upon the issue of “good cause attributable to the employing unit.” The statute does not require that the employer be at fault, but is designed to remedy the economic difficulties following from involuntary unemployment generally.

With regard to the issue of “good cause,” the defendant argues that plaintiff proved only “subjective dissatisfaction” with her working conditions and relies upon Sohler v. Director of Division of Employment Security (1979), 377 Mass. 785, 388 N.E.2d 299, where confusion over job assignments and poor procedures causing tension on the job were found to be insufficient cause. (Cf. also Berk v. Director of Division of Employment Security (1982), 387 Mass. 1003, 441 N.E.2d 531.) Defendant also argues that “stress” does not constitute “good cause” under the statute, and that plaintiff was required to produce evidence from a licensed practicing physician that she was physically unable to perform her work. While plaintiff did not meet the requirements of section 601(B)(1) by providing proof from a practicing physician that she was physically unable to perform her work, plaintiff did present evidence that a psychotherapist advised her that the employment was causing her stress which would continue as long as the employment continued. In this regard we note that other jurisdictions have held that good cause may consist of a reasonable subjective fear of harm to an employee’s health, even absent the advice of a physician. (See Rabago v. Unemployment Insurance Appeals Board (1978), 84 Cal. App. 3d 200, 210-11, 148 Cal. Rptr. 499, 506-07, and authorities cited there.) We think that the circuit court properly considered this as some evidence that plaintiff left work for a good cause attributable to her employer.

Although the Illinois statute.declares that an individual is ineligible for benefits for the week in which he has left work “voluntarily without good cause attributable to the employing unit,” the statute does not define good cause. The Act is to be liberally construed for the benefit of the unemployed worker. (John S. Barnes Corp. v. Board of Review (1965), 55 Ill. App. 2d 102, 110, 204 N.E.2d 20.) It has been held that a reduction in pay may constitute “good cause” for leaving work depending on the attendant circumstances. Keystone Steel & Wire Division v. Department of Labor (1976), 37 Ill. App. 3d 704, 346 N.E.2d 399.

Although the unemployment compensation statutes differ in each state, most have a provision allowing a worker to be paid benefits if he leaves work for “good cause,” even though “voluntarily.” Defendant maintains that plaintiff’s responsibility did not change so dramatically over time as to give her good cause for quitting, citing Tucker v. Commonwealth Unemployment Compensation Board (1974), 14 Pa. Commw. 262, 264, 319 A.2d 195, 196, where the court said:

“Normally, when any person is employed, he is employed to do a particular task at an assigned time, and at an assigned place. It does not follow that the employer agrees never to modify or change the task, the time, or the place. If the employer should decide to modify or change any of these and the change is reasonable, the employee must abide by the employer’s decision at the risk of being ineligible for unemployment compensation if he refuses.”

However, a substantial, unilateral change in the employment may render the job unsuitable and entitle the worker to benefits even if he leaves voluntarily. In National Aluminum Corp. v. Commonwealth of Pennsylvania Unemployment Compensation Board of Review (1981) 59 Pa. Commw. 359, 429 A.2d 1259, for example, a worker who was performing secretarial tasks was gradually required to perform solely clerical functions because she was proficient at them, even though she feared losing her secretarial skills. She was held eligible for compensation benefits when she voluntarily left her employment. In Jones v. Review Board (Ind. App. 1980), 399 N.E.2d 844, 845, the court said:

“If the working conditions are unilaterally changed by the employer and the employee chooses to terminate the employment rather than accept the change, the employee will be entitled to unemployment benefits since the reason for termination was a change in work agreed to be performed by the employee. Such reason constitutes good cause.”

Plaintiff’s uncontradicted testimony established that a substantial change in her working conditions took place over a one-year period significantly changing her duties for the worse. (Cf. Martinez v. Industrial Com. (Colo. App. 1982), 657 P.2d 457 (boys club branch director required to perform duties of shop director or gym director was .entitled to compensation since there was a change in working conditions, not simply dissatisfaction with working conditions).) Where an employee is given additional duties beyond his capacities, resulting in “work pressures,” resignation has been held not to disqualify the worker for benefits on the basis of quitting work without just cause. (Krzyston v. Industrial Com. (1977), 52 Ohio App. 2d 109, 368 N.E.2d 74 (secretary with significant administrative duties was assigned 300 workmen’s compensation decisions to be typed).) An employee should make reasonable efforts to resolve conflicts arising from the employment. (Richards v. Daniels (1981), 1 Ark. App. 331, 615 S.W.2d 399 (a kindergarten teacher who claimed other teachers operated as a “clique” excluding her and creating an uncomfortable situation more than she could bear was entitled to benefits where her three-year effort to resolve the conflict by notifying her superiors was unavailing).) In this case, by the fall of 1981, it was clear that plaintiff’s duties had substantially changed from those she had agreed to undertake at the beginning of her employment. The record is uncontradicted that she made numerous and substantial attempts to resolve the situation with her superiors, but her efforts were unsuccessful.

We conclude that the uncontradicted evidence established that the plaintiff was required to perform work for which she was not qualified, and which she felt she was unable to perform competently, thus creating a stressful situation. Therefore, she left her employment for good cause attributable to the employing unit within the meaning of the statute. Defendant’s decision was contrary to the manifest weight of the evidence presented, and the circuit court did not err in reversing the administrative decision.

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

Affirmed.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
      In re ESTATE OF ROBERT J. McCUBBIN, Deceased (Donald J. McCubbin et al., Petitioners-Appellants, v. Irene McCubbin, Adm'r of the Estate of Robert J. McCubbin, Respondent-Appellee).
    First District (4th Division)
    No. 83—1090
    Opinion filed June 21, 1984.

      Dann Duff, of Chicago, for appellants.
    Levin, Ginsburg & Novoselsky, Ltd., of Chicago (Henry N. Novoselsky, of counsel), for appellee.
   JUSTICE JIGANTI

The issues central to this action are whether the good will attendant to a physician’s medical practice and the opportunity to operate the practice for profit survive the physician’s death and thus become a part of his personal estate. Dr. Robert J. McCubbin operated a medical practice as an unincorporated sole practitioner. He died intestate in 1970, leaving as his heirs at law his wife, Irene McCubbin, and three children from his previous marriage. Irene was appointed administrator of the estate. During the years after the doctor’s death, Irene has operated a medical clinic in the same offices that had been occupied by her husband’s practice.

Following a number of events which shall be detailed later in this opinion, the children filed a citation to recover assets, claiming, among other things, that the estate was entitled to the profits realized by the clinic since their father’s death and that the clinic was an asset of the estate which should be sold. Irene answered the petition, alleging that no cause of action was stated because the deceased’s practice terminated upon his death as a matter of law. Both the children and Irene filed motions for summary judgment. Irene’s motion was granted. The children’s motion was denied, and they now appeal.

The focus of this appeal thus revolves around whether the good will inherent in the deceased’s practice and the opportunity to operate the practice for profit survived the deceased’s death. While the two issues are interrelated, the remedies sought in conjunction with each differ. Specifically, the children seek recovery of a sum equal to the value of the clinic’s good will at the time of the deceased’s death. They also seek revenues received from the clinic following the deceased’s death, arguing that an “opportunity to operate the practice for a profit” survived the death of the deceased. While the children make no distinction between these two issues in their appellate briefs, we shall address each issue individually for the purposes of clarity. The following chronology of facts provides the backdrop for our discussion of these issues.

In 1945, the deceased and one Dr. Fitzgerald began practicing medicine together. In 1967, the deceased and Fitzgerald entered into an agreement whereby the deceased received a covenant not to compete from Fitzgerald and bought certain furniture, fixtures, equipment and supplies from him. Both before and after Fitzgerald’s exit, the medical practice catered to patients whose injuries and illnesses arose in the course of their employment (workers’ compensation patients), as well as to patients whose injuries were not work related (private patients). In regard to the workers’ compensation patients, both Fitzgerald and the deceased advised a number of employers and their insurance carriers that they were available to treat patients for work-related injuries and that they would seek payment from the employers’ insurance companies, not the patients. No contract existed between the employers or the insurance carriers and the doctors, however, and the patients were free to visit any doctor they chose. The relationship with the workers’ compensation patients differed from that with the private patients only in regard to the party paying the bills.

Following the deceased’s death and the appointment of Irene as the administrator of his estate, Irene obtained a court order permitting her to continue the deceased’s practice for a period not to exceed six months. Irene, a nurse, hired a number of doctors on a part-time basis to complete the treatment of several patients who had been under the deceased’s care prior to his death. Irene also marshalled all accounts receivable. Receipts for the above activities were included in Irene’s final account to the estate, which reflected revenues received through May 18, 1971.

Thereafter, Irene received a court order to sell certain items of personal property possessed by the deceased, including medical and office equipment and fixtures. She arranged to buy back these items for her own use. Irene then began operating a medical clinic in the same premises previously occupied by the deceased’s practice. The name “The McCubbin Medical Center” remained unchanged, and Irene operated under the same lease as the one that existed prior to the deceased’s death. She later purchased the offices outright in 1978.

In late 1971, Irene contacted several employers and insurance carriers to inform them of the nature of the practice at the clinic. The practice has been and is limited exclusively to the treatment of workers’ compensation patients. Irene has hired a number of doctors to treat those patients. None of the patients treated by the clinic were treated by the deceased during his lifetime.

When Irene presented her final account of the estate’s assets in late 1977, the children appeared and objected, claiming that the reve-núes from the clinic, as well as the clinic itself, were property of the estate. Following a number of events which are not pertinent to this opinion, the children filed a fifth amended citation for the recovery of assets. The citation alleged that the estate was entitled to recover a sum equal to the value of the clinic’s good will at the time of the deceased’s death. The children further sought to impose a constructive trust upon revenues received by the clinic since the deceased’s death and to sell the clinic outright because an “opportunity to operate the practice for a profit” survived the death of the deceased and became a part of the estate. Both the children and Irene presented motions for summary judgment. Following oral arguments the trial court granted Irene’s motion, specifically finding that the deceased’s practice terminated upon his death. The order further stated that neither good will nor the opportunity to operate the clinic for a profit survived the deceased’s death and became an asset of his estate.

The primary issue defined by the parties is whether the good will attendant to the deceased’s medical practice could legally survive his death and thus become a part of his personal estate. Good will is a species of property (McIlvaine v. City National Bank & Trust Co. (1942), 314 Ill. App. 496, 42 N.E.2d 93), and has been described as “the most ‘intangible’ of the intangibles” (see Dugan v. Dugan (1983), 92 N.J. 423, 457 A.2d 1). The good will of a business is primarily characterized by the personal relationships and customer contacts which the owner of the business has been able to develop. (McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 202 N.E.2d 36.) It may not be separated from or disposed of independently of the business in which it inheres, and it can have existence only as an incident of a continuing business having locality or name. (McIlvaine v. City National Bank & Trust Co. (1942), 314 Ill. App. 496, 42 N.E.2d 93.) Good will is not a tangible asset, and not all businesses possess good will. Behn v. Shapiro (1955), 8 Ill. App. 2d 25, 130 N.E.2d 295.

Under Illinois law, “good-will can not exist as to other than purely commercial or trade partnerships or business of that nature, except by special contract *** ‘In a business of a professional nature, as that of an attorney or apothecary, the good-will attaches to the person rather than to any other subject ***.’ ” (Acme Harvester Co. v. Graver (1903), 110 Ill. App. 413, 426, aff’d sub nom. Craver v. Acme Harvester Co. (1904), 209 Ill. 483, 70 N.E. 1047; see also Douthart v. Logan (1899), 86 Ill. App. 294, aff’d (1901), 190 Ill. 243, 60 N.E. 507 (the court states —=— fessional practice of a physician does not possess good will absent a special contract).) “ ‘Good will is not strictly applicable to a professional partnership, for its business has no local existence, but is entirely personal, consisting in a confidence in the integrity and ability of the individual.’ ” Cook v. Lauten (1954), 1 Ill. App. 2d 255, 261, 117 N.E.2d 414, 416.

In the case at bar, the children seek to avoid the application of the above-cited line of case law, which holds that good will cannot exist except in cases of purely commercial or trade businesses. Specifically, the children argue that the deceased’s practice was a commercial rather than professional venture because many of the clinic’s patients were workers’ compensation patients who were referred to the clinic by their employers and because the insurance companies representing those employers paid the patients’ bills. The children thus maintain that a workers’ compensation patient “is not a patient in the traditional sense [but] merely the subject which is to be inspected for the client, the insurance company.” We find these arguments unconvincing.

Initially we believe that regardless of the source of the referrals to the clinic, a doctor-patient relationship existed between the deceased and his patients wherein the patients reposed their trust and confidence in the deceased. The mere fact that these patients were referred to the deceased by their employers did not turn the doctor-patient relationship into a commercial enterprise or transfer the patients into “subjects to be inspected” rather than persons concerned with their health and well being. A personal doctor-patient relationship existed between the deceased and his patients, and we do not think that this professional relationship was in any way eroded because the patients’ employers referred them to the clinic or because the bills were paid by insurance companies rather than by the patients.

The undisputed facts before the court during the cross-motions for summary judgment further revealed that the patients were free to visit any doctor they chose and that the clinic operated by Irene never treated any of the same patients who had been treated by the deceased. The record also discloses that while the practice managed by Irene treats only workers’ compensation patients, the deceased’s practice included a large number of private patients who were not patients of the clinic following the deceased’s death. While Irene contacted certain of the employers and insurance companies that the deceased had previously contacted, it would be pure speculation on the part of this court to conclude that her efforts were successful only because she was able to rely upon the good will of the deceased’s practice.

We believe that these undisputed facts, taken in conjunction with one another, amply demonstrate that the deceased’s was a professional practice, rather than a business of a commercial nature, that did not continue without change following his death. We therefore find that the Illinois cases holding that good will cannot exist except in cases of purely commercial or trade businesses are applicable to the case at bar. Consequently, we believe that the trial court properly ruled that the children failed to state a cause of action in alleging that the good will inherent in the deceased’s professional medical practice survived his death so as to become a part of his personal estate.

We are not persuaded by two cases from other jurisdictions which have been cited by the children in support of their good will argument. Durio v. Johnson (1961), 68 N.M. 82, 358 P.2d 703, holds that the good will of an ongoing veterinary medicine partnership may be sold by contract where a covenant not to compete supplies the consideration for the contract. Durio is similar to Hicklin v. O’Brien (1956), 11 Ill. App. 2d 541, 138 N.E.2d 47, an Illinois case cited by neither of the parties to this action. Hicklin upheld a noncompetitive covenant incidental to the sale of an ongoing law practice which limited the geographical area in which the selling attorney could practice.

We think that Durio and Hicklin are distinguishable from the case at bar for two reasons. First, as we stated earlier, “good-will can not exist as to other than purely commercial or trade partnerships or business of that nature, except by special contract ***.” (Acme Harvester Co. v. Craver (1903), 110 Ill. App. 413, 426, aff’d sub nom. Craver v. Acme Harvester Co. (1904), 209 Ill. 483, 70 N.E. 1047.) Both Durio and Hicklin involved a special contract of the sort referred to in the Acme Harvester case. Both cases involved a written contract which depended upon a covenant not to compete as consideration for the contract. In the instant case, there was no such agreement and the principals concerning upholding or denying relief in a contract case such as Durio or Hicklin are not presently before this court. Thus, the general Illinois rule that no good will exists in a professional practice applies to this case. The second reason that we find Durio and Hicklin distinguishable from the instant case is that both cases concerned the ongoing practices of living professionals. However, the decisions we have encountered which addressed the good will of a deceased’s professional practice, such as that in the instant case, have held that any alleged good will could not survive the death of the professional and would “simply evaporate.” (See In re Marriage of Fleege (1979), 91 Wash. 2d 324, 588 P.2d 1136; Ryman v. Kennedy (1913), 141 Ga. 75, 80 S.E. 551; In re Martin’s Estate (1941), 178 Misc. 43, 33 N.Y.S.2d 81; Dugan v. Dugan (1983), 92 N.J. 423, 457 A.2d 1.) Other courts have simply stated that any alleged good will inherent in a professional’s practice dies with the professional. (See Kremelberg v. Thompson (1917), 87 N.J. Eq. 655; 103 A. 523; Rakestraw v. Lanier (1898), 104 Ga. 188, 30 S.E. 735.) Consequently, we do not believe that either Durio or Hicklin offer any support for the arguments raised by the children in the case at bar.

The second case which the children cite in support of their argument is Tessmar v. Grosner (1957), 23 N.J. 193, 128 A.2d 467. Tessmar addressed the value of certain medical charts and records that had been owned by a deceased physician. Good will was not an issue in the case and was discussed only peripherally by the court. Because the children in the case at bar make no argument in regard to the deceased’s medical records, we believe that their reliance upon Tessmar is misplaced. Therefore, the two cases cited by the children offer no support for this court to circumvent the generally recognized Illinois rule that no good will exists in a professional practice.

The final issue alluded to by the children on appeal is whether “an opportunity to operate the practice for a profit” could survive the deceased’s death as a matter of law and thus become a part of his personal estate. The children have offered no support for this contention other than their reliance upon two cases that concern good will and indeed, this court has been unable to locate any such authority. From what we can gather from our review of the children’s argument, they essentially contend that the deceased operated a commercial business that continued unchanged after his death and that the estate is entitled to revenues received by the clinic following the deceased’s death as well as the physical clinic itself. Other than the recovery sought, we see no distinction between the children’s good will argument and their contention that an opportunity to operate the practice for a profit survived the deceased’s death. It appears that at least for purposes of this case, the two alleged causes of action are intertwined to such an extent as to be indistinguishable. Because we have found that no good will could survive the death of a professional such as the deceased, we similarly conclude that an opportunity to operate the clinic for profit also could not survive.

For the foregoing reasons, we affirm the trial court’s order of summary judgment in favor of Irene.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.

      The propriety of this sale was not challenged by the children in the trial court and is not presently before this court on appeal.

      Irene’s assumption of the lease or the use of the clinic’s name were not issues decided in the trial court’s order and are not in issue here.


author: JUSTICE O’CONNOR

text:
    JUANA LINDSEY, Successor Adm’r of the Estate of Beverly Powell, a/k/a Beverly Robinson, Deceased, Plaintiff-Appellant, v. SCHICK, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—1010
    Opinion filed June 19, 1984.
    Rehearing denied July 20, 1984.
    Sidney S. Altman, of Chicago, for appellant.
    Schaffenegger, Watson & Peterson, Ltd., of Chicago (Donald G. Peterson, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Juana Lindsey, successor administrator of the estate of Beverly Powell, deceased, sued defendant Schick, Inc., in a product liability suit for the wrongful death of Beverly Powell, who was electrocuted while using a Schick Facial Sauna in a bathtub. A jury found for defendant. Plaintiff appeals from the judgment entered on the verdict.

Plaintiff contends the sauna was faulty because of the lack of a ground wire and the instructions given the jury were inadequate because the trial court refused plaintiff’s instruction on foreseeability.

On September 12, 1975, deceased, who was born in Panama in 1948, was found in the water-filled bathtub in her apartment. In her mouth she had an extension cord from an electrical outlet to which was connected the electrical cord from a facial sauna on a stand next to the bathtub. The electrical cord was in her right hand. There was approximately a one-eighth to a one-quarter inch gap in the connection between the extension cord and the appliance. When she was found, the cord in her mouth was still sparking. The female end of the extension cord, which received the two prongs of the appliance cord, and the male end of the appliance cord with its two prongs were charred. The appliance was not charred. There was charred blackness around her mouth. The burns coincided with the charring on the plugs. It appeared that deceased had been trying to plug the appliance into the extension cord while holding it in her teeth and that moisture in one or both parts of the plugs had caused the electrical current to run through her body and through the water.

Gusto Alamar, a rewirer of electric motors for the Chicago Transit Authority, testified for plaintiff. He had two years of electrical engineering study at the Chicago Technical College and two years at De Vry Technical Institute specializing in electronic courses. He did not have a degree in electrical engineering. On May 25, 1982, he checked the electrical outlets in deceased’s building and determined that they were grounded. The voltage was correct and there was no cross-wiring. He testified as to the principle of a third (ground) wire on an extension cord: one prong of the extension wire plug carries the electrical current; one prong carries the return current and the third prong (round in shape) is the grounded prong. It is connected through the internal wiring to the electrical box and directly to the earth. It is a safety device; it provides a path of lowest resistance and grounds the current to the earth and trips the circuit breaker or fuse.

He further testified that saliva between two connected plugs would be dangerous to an individual who held the connection with the teeth. In a bathtub of water such an incident would result in a shock which could be fatal. He said that a cord with a third prong might either avoid the shock or reduce the severity of the shock. It was his opinion that in a hypothetical situation similar to the facts in this case and assuming the use of three wire grounded cord, the result would not be fatal, because the majority of the current would transfer through the third prong and blow the circuit breaker and fuse. However, the presence of a grounding wire would not eliminate the hazard of a shock to an individual who is placed in the circuit. A person in contact with the hot wire and the ground wire of a three-prong plug would get a shock. If a person were in contact with all three prongs, not all the electricity would pass through the body. A human body in a tub of water would act as a conductor of electricity. Although he did not specifically know what amount of amperage would kill a person, he would agree that one ampere would do it.

Plaintiff read into the record the evidence deposition of Harris Kamide, an electrical engineer with 30 years’ experience and an instructor at the Illinois Institute of Technology and Harvard. He had examined the facial sauna and found no indication of electrical current leakage from the heating element and there were “no cords connected to the rolls supply voltage.” The conduction of the current to the outside source, such as an individual or a path to ground, was inevitable. It is standard practice for companies to include a ground wire or third wire in products such as this. It is also customary for such products to have a warning label if there are any dangers in connection with the use of the product. Assuming the facts of this case and that a ground wire was used in the facial sauna cord, it was his opinion that the grounding plug third wire would have prevented electrocution. The ground plug would have diverted electrical current away from the body.

Plaintiff introduced into evidence a transcript of the coroner’s report pursuant to the Evidence Act (Ill. Rev. Stat. 1981, ch. 51, pars. 3.01 through 3.03) for the purposes of showing a prima facie cause of death.

William Hess, senior vice-president of operations of defendant Schick, was called by plaintiff as an adverse witness. He identified the facial sauna as defendant’s product. He did not know the difference in cost between a two-prong plug and a three-prong plug. He did not think that the required use of an adapter, if the product had a three-prong plug, would put a damper on sales.

William Hess, testifying for defendant, stated that an exhibit which he identified as an instruction booklet for the sauna was. in the regular course of business, packaged with each sauna. In the booklet under the caption “Important Safeguards,” it is stated “Do not use while bathing or in a location where it may fall into water or liquids.”

Robert Kmourek, a retired electrical engineer, also testified for the defense. He had worked for Underwriter’s Laboratories, Inc. (UL), since 1946. Part of his duties was to test and examine electrical appliances for safety. The facial sauna manufactured by Schick was certified by UL. Its cord contained two wires. He was familiar with the certification process of an appliance: Tests were conducted to determine that a product is constructed so that it is safe. Further, four unannounced checks of the factory assembly line are made by an UL representative during the year.

Assuming the hypothetical facts of this case, he stated that the absence of a third wire in the appliance cord did not render the product unreasonably dangerous and that the presence of a third, ground wire would not have helped prevent a shock or death. It would not matter whether the facial sauna was turned on or off.

He testified that two-tenths of an ampere for one second would kill a human being. The ordinary circuits in residential areas are 15 amperes and 20 amperes for the kitchen.

Referring again to the hypothetical facts, he stated that the use of a ground wire would not have activated a circuit breaker or fuse. A ground wire has a higher resistance than both a hot or neutral wire. He further testified that there is a ground wire connected to the plastic case of the facial sauna. This is to protect against the hazard of electrical shock from the metal part of the product’s case. This third wire would not have anything to do with the hazard of an individual coming in contact with the appliance’s plug.

The National Electric Code establishes rules for buildings and electrical construction. It advises inspectors to require appliances to be tested for safety. This code lists appliances that should be grounded. It does not include the facial sauna on this list. UL standards also do not mandate a third wire for appliances such as the facial sauna.

He further testified on cross-examination that his responsibilities at UL covered commercial cooking appliances which did not include the facial sauna. He read the definition of grounding in an article by Robert Sealback, a chief engineer at UL: grounding “provides electric current with easy access to the ground in case of short circuiting ***.” He did not understand the meaning of an expression “easy access to the ground.”

He also testified that the sauna itself utilizes the element of moisture in its recommended use. There is no warning on it that, in order to prevent shock hazard, the appliance should not be exposed to rain or moisture.

Kmourek was asked to assume that a woman just out of a swimming pool was plugging an electric barbecue cord into an extension cord each of which had three wires; that there was a one-eighth inch gap and water dripped onto the gap from her hand or hair. So assuming, he testified there was a good chance that a short would occur, and that it is possible that the woman would receive a shock if her hand was lightly resting on the plugs in contact with the water which caused the short.

Plaintiff argues that the evidence shows that the facial sauna was faulty because of the lack of a ground, or third, wire in the electrical cord. After summarizing the facts set out above, plaintiff concludes that issues of fact were supported by the greater weight of evidence in her favor.

It is settled law, however, that a jury’s verdict should not be set aside unless it is palpably erroneous or wholly unwarranted by the manifest weight of evidence. (Sloma v. Pfluger (1970), 125 Ill. App. 2d 347, 261 N.E.2d 323.) Here, there was sufficient evidence in the record from which the jury could have concluded that the use of a ground wire in the appliance cord would not have prevented the accidental electrocution of deceased. The jury could also have concluded that the warning contained in the instruction booklet was sufficient to warn against the use of the sauna near a full bathtub. The jury’s verdict cannot be said to be manifestly erroneous.

Plaintiff also argues that, if the jury had been properly instructed, the verdict would have been in her favor. She contends that the trial court committed reversible error in refusing the following instruction tendered by her:

“You are further instructed that if the use of a product is abnormal, but nonetheless one that may be anticipated, it may be foreseeable. There is a distinction between the intended use and the foreseeable use, and where a particular use should be known to the reasonably prudent manufacturer such use cannot be labeled unforeseeable.”

Plaintiff adopts this language from Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, arguing that this instruction (although not an IPI instruction) is proper because liability includes any foreseeable danger that is incident to the possession of the product.

In Kerns, the court said:

“If the use of a product ‘is abnormal, but nonetheless one that may be anticipated, it may be foreseeable.’ (2 Dooley 360.) There ‘is a distinction between the intended use and the foreseeable use, and *** where a particular use should be known to the reasonably prudent manufacturer such use cannot be la-belled unforeseeable.’ ” 76 Ill. 2d 154, 165.

We hold as a matter of law that it cannot be said that a reasonably prudent manufacturer should know that a user (while in a bathtub filled with water) would attempt to use its facial sauna by holding the female end of an extension cord in her mouth while attempting to insert the male end of the sauna’s cord into the extension cord. Such use by decedent was not one that may be anticipated and thus one that was reasonably foreseeable. The instruction was properly refused.

Further, the record shows that the jury was properly instructed as to plaintiff’s theory of the case. Instructions were given based on her claim that (a) the sauna was unreasonably dangerous when it left defendant’s control because of the absence of (1) a grounded electrical cord and plug and of (2) a label warning that exposure of the cord and plug to moisture or water could result in electrocution and that (b) she had the burden of proof that those conditions were the proximate cause of decedent’s death. (Illinois Pattern Jury Instructions (IPI), Civil, Nos., 400.01, 400.02 (2d ed. 1971).) The jury was also correctly instructed as to the meanings of “proximate cause” (IPI Civil No. 400.04) and “unreasonably dangerous” (IPI Civil No. 400.06). Plaintiff was not prejudiced by the refusal to give her tendered instruction.

In plaintiff’s brief, she lists as one of the issues presented for review the contention that she was prejudiced by defense counsel’s improper questioning which inferred that deceased had been intoxicated. This contention is not properly before the court. It is mentioned neither in her points and authorities nor in her argument. It is therefore waived. 87 Ill. 2d Rule 341(e)(1), (7).

Even if not waived, it is without merit. Each time defense counsel asked questions relating to the possibility of deceased’s intoxication he was quickly cut off by the trial court. It was not discussed in closing argument. There is nothing in the record to indicate any prejudicial effect on the jury. There is no basis for overturning the jury’s verdict. See Tate v. Coonce (1981), 97 Ill. App. 3d 145, 421 N.E.2d 1385.

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

HARTMAN, P.J., and STAMOS, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LAVERNE MULLINEX, Defendant-Appellant.
    Second District
    No. 2—83—0645
    Opinion filed June 20, 1984.
    G. Joseph Weller, Paul J. Glaser, and Nicholas J. Kritikos, all of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons', State’s Attorney, of Wheaton (Barbara A. Pre-iner, Assistant State’s Attorney, and Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a bench trial, Michael Laverne Mullinex, the defendant, was convicted of the offenses of burglary, theft in excess of $300, and possession of burglary tools. He was sentenced to terms of five years for burglary, three years for theft and two years for possession of burglary tools, to be served concurrently. He appeals, contending (1) that his conduct was not burglary under section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)); (2) that his conviction of theft must be reduced to attempted theft, because the evidence failed to prove beyond a reasonable doubt that he exerted the requisite degree of control over the automobile; and (3) that the sentences were excessive.

A police officer observed defendant standing at the driver’s side of the victim’s Pinto in a parking lot. His hands were moving in an up and down motion near the driver’s window and he had a tool in his hands. Later, he was seen seated in the car near the steering column. He was bent over the steering wheel, his hands working on the ignition. He looked up, saw the police officer, exited the automobile and began running away. He was apprehended in the parking lot, where a slender piece of metal, characterized by the officers as a “Slim Jim,” fell from his clothing. The tool is used to unlock cars by inserting it between the door and the glass, hooking onto the door linkage and thereby forcing the lock to pop up.

The officer looked inside the passenger compartment and noticed that the “butterfly stem” of the ignition mechanism was off and was lying on the floor. On the front seat of the car a screwdriver and a “slam hammer,” described as commonly used to remove ignitions, were found. A portion of the ignition stem was still attached to the “slam hammer.” The officer also observed that the portion of the ignition system that fits into the butterfly stem appeared to have screw marks on it. The officer stated on cross-examination that he could not recollect whether the ignition mechanism was still in the steering column when he viewed the car.

I

Defendant first argues that proof of his entering the automobile with intent to steal the vehicle did not constitute the offense of burglary. He argues that the legislature did not intend that entry into an automobile, with the intent to steal the vehicle itself, should be punished as burglary.

The statutory definition of burglary, as relevant here, provides:

“A person commits burglary when without authority he knowingly enters *** a *** motor vehicle as defined in The Illinois Vehicle Code *** or any part thereof, with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).)

The material element of burglary is the unlawful entry with the intent to commit a felony or theft. (People v. Clark (1964), 30 Ill. 2d 216, 219; People v. Sansone (1981), 94 Ill. App. 3d 271, 273; People v. Bailey (1980), 80 Ill. App. 3d 242, 244.) Thus, the crime of burglary is complete when a person unlawfully enters a vehicle with the intent to steal (People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 11), and it is not necessary to prove that anything is stolen. People v. Richardson (1983), 118 Ill. App. 3d 175, 177; People v. Sansone (1981), 94 Ill. App. 3d 271, 273-74.

The primary or cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475; People v. Bratcher (1976), 63 Ill. 2d 534, 543; People v. Gibson (1981), 99 Ill. App. 3d 616, 619, rev’d on other grounds (1982), 91 Ill. 2d 562.) The statutory language itself is the best indication of the intent of the drafters, and where that intent can be gleaned from the plain language of the statutory enactment, the courts will give it effect without resorting to other aids for construction. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76.) Although the legislative intent is sought primarily from the language employed in the statute, the judiciary may look also to the statutory objective and the evils sought to be remedied and then arrive at a common sense construction. (People v. Gibson (1981), 99 Ill. App. 3d 616, 619.) Where several constructions may be placed upon a statute, the court should select that interpretation that leads to a logical result and avoid that which would be absurd, for the presumption exists that the legislature in passing a statute did not intend absurdity, inconvenience, or injustice. People v. Sansone (1981), 94 Ill. App. 3d 271, 273; People v. Bournes (1977), 55 Ill. App. 3d 237, 240.

Based upon the plain language of section 19 — 1(a) of the Criminal Code of 1961, it is manifest that the defendant committed a burglary when he entered the victim’s automobile with the intent to steal it. There is nothing in the statutory language itself that restricts the scope of section 19 — 1(a) of the Criminal Code of 1961 to situations in which the defendant steals or intends to steal something from the interior of the automobile, as opposed to attempting to steal or actually stealing the vehicle itself. Furthermore, the court in Sansone concluded that the defendant, who entered an automobile with the intent to steal the vehicle itself, was properly convicted of the offense of burglary as delineated in section 19 — 1(a) of the Criminal Code of 1961. (People v. Sansone (1981), 94 Ill. App. 3d 271, 273-74.) The Sansone court rejected defendant’s argument that the word “therein” contained in the burglary statute refers only to property taken from within the vehicle, not the vehicle itself. Cf. People v. Patton (1983), 112 Ill. App. 3d 1 (where, in the context of a prosecution for the offense of possession of burglary tools (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 2(a)), the court construed the phrase “to commit therein a felony or theft” to encompass a situation where the defendant possessed burglary tools with the intent to steal the automobile itself).

Because the public convenience and necessity require continued and broad use of the automobile “as an adjunct of modern living,” the legislature may reasonably protect such vehicles “by more stringent penalties than apply to personal property lying in the open.” (People v. Jennings (1976), 42 Ill. App. 3d 168, 171.) In light of the plain language of the statute and the legislative intent impliedly expressed therein to protect motor vehicles, adoption of the defendant’s position in this case would not be in harmony with the legislative enactment and intent, for his interpretation of the statute would create an absurd or illogical result. For example, under the defendant’s view of the statute, a person who enters an automobile without authority and with the intent to steal an item from within the vehicle could be punished as a burglar, whereas an individual who enters a car unlawfully with the intent to steal the entire vehicle could be convicted only of the less serious offenses of theft or attempted theft.

People v. Bournes (1977), 55 Ill. App. 3d 237, and People v. Jennings (1976), 42 Ill. App. 3d 168, upon which the defendant places primary reliance, are not applicable on their facts and do not stand for the proposition that a defendant cannot be convicted of burglary when he enters a vehicle with the intent to steal the car itself.

II

Defendant was also convicted of violating section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16— 1(a)(1)) in that he knowingly exerted unauthorized control over the victim’s automobile with the intent of depriving her permanently of the use and benefit of her property. As section 15 — 8 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 15 — 8) expressly states, the phrase “obtains or exerts control” over property includes, but is not limited to, “the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.” People v. Fowler (1979), 72 Ill. App. 3d 491, 493-94.

In the case at bar, there is no concrete evidence that the defendant had removed the entire ignition mechanism, thereby enabling him to activate the car with his tools. The officer testified that he would have photographed the ignition system if it had been located in any place other than on the steering column. He acknowledged, further, that the photographs which the State introduced into evidence did not depict the ignition system lying on the floor or the seat of the automobile.

On this record, defendant’s conduct did not constitute the taking or carrying away of the vehicle or the sale, conveyance, or transfer of the title to, interest in, or possession of the property. At most, the defendant’s actions were steps preliminary to the assertion of actual control or complete physical dominion over the vehicle. (See People v. Sansone (1981), 94 Ill. App. 3d 271, 272; People v. Montgomery (1977), 53 Ill. App. 3d 298, 299; People v. Sparks (1972), 9 Ill. App. 3d 470, 473-74.) Therefore, the evidence was sufficient only to sustain a conviction of attempt to commit a theft in excess of $300, Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)(5)). We therefore vacate the conviction and sentence for felony theft, and enter judgment here finding defendant guilty of attempt as described. We enter sentence here for the attempted theft for the maximum term of 364 days to be served concurrently. Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)(5); People v. Martin (1984), 121 Ill. App. 3d 196, 215; People v. Owens (1982), 109 Ill. App. 3d 1150, 1160.

Ill

We reject defendant’s final contention that we should reduce his sentences for burglary and possession of burglary tools based on defendant’s contention that the trial court in its sentencing decision relied on improper factors and failed to give sufficient consideration to the defendant’s background. The task of weighing the various aggravating and mitigating factors is the fimction of the trial court. (People v. Jackson (1981), 97 Ill. App. 3d 928, 929.) From our examination of the record, which included the defendant’s prior convictions of vehicle-related thefts, we find no abuse of sentencing discretion.

The judgment of the circuit court of Du Page County convicting the defendant of theft is vacated, and the defendant is sentenced to 364 days’ imprisonment for attempt theft. The convictions of and sentences for burglary and possession of burglary tools are affirmed.

Affirmed in part, vacated in part, judgment entered here in part.

REINHARD and HOPE, JJ., concur.


author: JUSTICE WEBBER

text:
    JEWEL COMPANIES, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Dolores Ann Rider, Appellant).
    First District (Industrial Commission Division)
    No. 1—84—423 WC
    Opinion filed June 13, 1984.
    John E. Cunningham, of Chicago, for appellant.
    Thomas D. Nyhan, Ellis A. Ballard, and James M. O’Brien, all of Chicago (Pope, Ballard, Shepard & Fowle, Ltd., of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, Dolores Ann Rider, filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries to her leg, knee, back, arms and hands allegedly caused by a fall at work occurring on May 29, 1980. Claimant was employed as a chef kitchen manager with respondent, Jewel Companies, Inc. At arbitration, claimant proceeded under the immediate hearing provisions of section 19(b) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(b)). She also sought penalties and attorney fees under sections 19(k) and 19(1) (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(k), 138.19(1)). At arbitration, claimant confined her evidence and arguments to the issue of respondent’s liability for the injury to her left knee. The arbitrator found that this injury arose out of and in the course of her employment and awarded her $238.22 per week for a period of 30% weeks for temporary total disability. The sum of $7,163.43, already paid to claimant by respondent, was credited against respondent’s liability for total temporary disability compensation. The arbitrator declined to award claimant’s medical expenses because she failed to submit evidence in support of her claim for unpaid or unreimbursed bills. He also refused to assess any penalties against respondent. The Industrial Commission adopted the findings of the arbitrator insofar as he concluded that claimant had sustained an accidental injury to her knee arising out of and in the course of her employment. The Commission, however, with one commissioner dissenting, replaced the arbitrator’s temporary total award with an award of $238.33 per week for life from the date of the accident less credit for payments already made. Based upon evidence presented on review, it ordered respondent to pay $2,771.50 to claimant for medical expenses pursuant to section 8(a) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)).

The circuit court of Cook County set aside the decision of the Commission. The court concluded that the Commission’s award of permanent total disability was improper because it exceeded the relief sought by claimant under section 19(b). The circuit court also found that the Commission’s decision was contrary to the manifest weight of the evidence. It regarded the testimony of plaintiff’s treating physician as unworthy of belief, apparently because the physician and his staff had altered certain of claimant’s medical records after treatment had been provided to her. Accordingly, the court reinstated the decision of the arbitrator.

Claimant appeals, contending that the circuit court erred in setting aside the Commission’s award of permanent total disability and its award of medical expenses. She argues that the Commission’s decision was not manifestly erroneous.

We conclude, however, as did the trial court, that the Commission exceeded its authority in awarding permanent total disability. Section 19(b) provides:

“The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(b).)

The record in this case clearly shows that only the issue of temporary disability was litigated below. The question of permanence was not raised before the arbitrator or the Commission on review. The decision of the arbitrator states: “Because Petitioner sought remedies under paragraphs (B), (L), and (M), of Section 19. No evidence was offered regarding permanent disability. This decision shall in no instance be a bar to a further hearing for a determination of permanent disability.” This language, taken in part from section 19(b), demonstrates that the hearing invoked by claimant addressed only the issue of temporary disability. Accordingly, the Commission erred in resolving an issue that was not litigated by the parties. See Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, 413 N.E.2d 390; Thomas v. Industrial Com. (1980), 78 Ill. 2d 327, 399 N.E.2d 1322.

We are also persuaded that the Commission’s award of medical expenses was improper. It is elementary that claimants bear the burden of proving by a preponderance of the evidence all elements necessary to sustain an award of compensation. (Bemis Co. v. Industrial Com. (1981), 85 Ill. 2d 291, 423 N.E.2d 896.) Under section 8(a), respondents may only be ordered to pay for treatment which is “reasonably required to cure or relieve from the effects of the accidental injury.” Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a).

In this case, the arbitrator found that the claimant had submitted to him neither documentary evidence nor testimony supporting a claim for unpaid medical bills. On review by the Commission, there was presented only a physician’s bill which was a hodge-podge of items not clearly related to the injury for which the claim was being made and even containing an item for services rendered prior to the injury. It therefore follows that the award of medical expenses was against the manifest weight of the evidence.

The judgment of the circuit court of Cook County setting aside the decision of the Commission is accordingly affirmed. That judgment reinstated the decision of the arbitrator, which specifically found that his “decision shall in no instance be a bar to a further hearing for a determination of permanent disability.” The cause is therefore remanded to the Commission for any further proceedings consistent with the views expressed in this opinion.

Affirmed and remanded.

SEIDENFELD, P.J., McNAMARA, BARRY, and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLES GAS LIGHT AND COKE COMPANY, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 83—2705
    Opinion filed June 18, 1984.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Assistant Corporation Counsel, of counsel), for appellant.
    Peter B. Freeman, Michael M. Conway, and William Carlisle Herbert, all of Hopkins & Sutter, and Simon & Spitalli, both of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises from an action brought by plaintiff, Peoples Gas Light & Coke Company, to have the city of Chicago’s “Winter Gas Termination and Reconnection Ordinance” (City of Chicago Municipal Code 1983, ch. 187.1) declared invalid and to permanently enjoin the defendant city from enforcing the ordinance. In a prior interlocutory appeal, we affirmed the trial court’s issuance of a temporary restraining order and remanded the case for trial. (Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 453 N.E.2d 740.) After a hearing on the merits, the trial court held that the subject ordinance is unconstitutional “in that its subject matter is preempted by the Illinois Public Utilities Act.” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 1 et seq.) The order also permanently enjoined the city from enforcing the ordinance. The city of Chicago appeals from this order of the trial court, contending that it may currently regulate winter gas terminations and reconnections pursuant to its home rule powers granted under article VII, section 6(a), of the 1970 Illinois Constitution.

The ordinance in question imposes a blanket prohibition against termination of gas service by Peoples Gas to any residential consumers or master metered residential buildings in Chicago during the months of November through March inclusive. This prohibition applies whether or not the customer makes any effort to pay for the service, regardless of the ability of the customer to pay and regardless of the amount owed for gas service. The ordinance further requires Peoples Gas to reconnect gas service during these months to any individual residential consumer who tenders the lesser of $200 or 25% of his or her outstanding bill and to reconnect any residential.master metered building whose owner tenders 25% of the outstanding bill.

We believe that this ordinance cannot be properly characterized as an exercise of local governmental power which primarily pertains to the city’s government and affairs. Accordingly, such an enactment is beyond the scope of home rule power envisioned by the framers of article VII, section 6(a), of our State constitution.

Prior to the adoption of the 1970 Illinois Constitution, the extent of local governmental power was proscribed by the limits set forth in Dillon’s rule. The rule required that local governmental units could only exercise those powers expressly given by State statute. Taken as a rule of construction, Dillon’s rule narrowly circumscribed the powers of local government within those limits expressly stated in the statute with all doubts resolved against expanding powers of local governmental units.

The initial grant of broad home rule powers to units of local government is found in article VII, section 6, of the 1970 Illinois Constitution. The concept of home rule was designed to “drastically alter the relationship which previously existed between local and State government” (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, 290 N.E.2d 240) by giving local governmental entities broad and imprecise home rule powers in order to allow for greater flexibility. Section 6(a) of article VII provides:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” (Ill. Const. 1970, art. VII, sec. 6(a).)

To completely lay to rest the ghost of Dillon’s Rule, section 6(m) provides that “powers and functions of home rule units shall be construed liberally.” Ill. Const. 1970, art. VII, sec. 6(m).

Once a given matter is determined to be within the broad ambit of home rule power given in section 6(a), the State legislature may act pursuant to sections 6(g) and 6(h) to limit or preempt the exercise of that power by local governmental entities. The sections provide:

“(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (1) of this section.
(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (1) of this Section.” Ill. Const. 1970, art. VII, secs. 6(g), (h).

Where the legislature has not specifically acted to limit local governments in areas which are within the scope of home rule, home rule units may act concurrently with the State in exercising governmental power in that area. Section 6(i) provides:

“Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, sec. 6(i).

A review of the above cited constitutional provisions indicates that any home rule analysis will properly proceed along three areas of inquiry. First, it must be determined whether the disputed exercise of local governmental power falls within the scope of home rule powers contemplated by section 6(a). The main restriction contained therein requires that the unit of government must be acting in an area “ ‘pertaining to its government and affairs.’ ” (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 508, 389 N.E.2d 553.) If the local governmental unit is acting in an area “pertaining to its government and affairs,” then it must be determined whether the legislature has preempted this area of otherwise valid home rule power by (1) “specifically” limiting local exercise or (2) “specifically” declaring the State’s exercise to be exclusive. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 508, 389 N.E.2d 553.) If the legislature has not taken such “specific” action, it must then be determined what the proper relationship is between the local ordinance and any State legislative acts in the same area.

In general, the main substantive restrictions on the exercise of local governmental power have come from the various constructions of the “pertaining to its government and affairs” clause contained in section 6(a). In Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15, the supreme court invalidated a home rule county ordinance that directed the clerk of the circuit court of Cook County to collect a $2 filing fee in civil cases to support a county law library. In so doing, the court examined the limitations imposed by the “pertaining to” clause on the otherwise broad home rule grant and noted:

“The local government committee, explaining the intended extent of this limitation, stated in its report to the constitutional convention, ‘It is clear, however, that the powers of home rule units relate to their own problems, not to those of the state or the nation. Their powers should not extend to such matters as divorce, real property law, trusts, contracts, etc. which are generally recognized as falling within the competence of state rather than local authorities. Thus the proposed grant of powers to local governments extends only to matters “pertaining to their government and affairs”.’ 7 Proceedings 1621.” (61 Ill. 2d 537, 540.)

The court went on to hold that the administration of justice was a matter of statewide concern and not a matter pertaining to local government. Accordingly, the county’s exercise of home rule power was held invalid since it went beyond the scope contemplated by section 6(a).

Similarly, in People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 40, 368 N.E.2d 100, the supreme court invalidated a city ordinance permitting branch banking. The court found that the State’s pervasive interest in banking regulation as evidenced by statute and other constitutional provisions indicated that banking was a matter of statewide concern. Accordingly, the court held that banking regulation was not a matter pertaining to local government and affairs.

The existence of State regulation in a given area has not always resulted in a finding that the area is not one pertaining to local government and affairs. In County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553, the supreme court held that the regulation of sanitary landfills was within the scope of home rule power and that home rule units may legislate concurrently with the State in this area through the use of zoning restrictions even though the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 1111/2, par. 1001 et seq.) comprehensively regulates the use and construction of sanitary landfills through regulations promulgated by the Illinois Environmental Protection Agency. In finding a sufficiently local concern in this area, the court reasoned that the traditional zoning power of counties, the long history of local zoning restriction for intensive land uses, and prior decisions of the court recognizing local concern over garbage collection all mandated a conclusion that county zoning restrictions regarding sanitary landfills pertain to the county’s government and affairs. County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 511-12.

Similarly, it has been held that a home rule ordinance regulating leases is not invalid merely because State statute regulates landlord-tenant law (City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 421 N.E.2d 196), that the taxation of horse racing is within a home rule unit’s powers “pertaining to its government and affairs” even though the subject area is extensively regulated by the State (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118), and that a home rule unit’s liquor tax is valid notwithstanding the State’s extensive regulation and . taxation of the liquor industry (Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6).

The above cases have attempted to define the division of power between the State and local government by construing the “pertaining to” clause of section 6(a). Taken collectively, they stand for the proposition that the limits of home rule should initially be determined by examining the exercise of local governmental power in order to resolve whether or not the matter is one of sufficient local concern as opposed to statewide concern. As such, the words “pertaining to its government and affairs” contained in section 6(a) have become words of art in defining the limits of home rule power.

In the case at bar, we first look to the report of the local government committee given at the Sixth Illinois Constitutional Convention in order to determine whether or not utility regulation is a matter pertaining to local government and affairs. The report contains several examples of local governmental activity with an accompanying analysis of whether the given activity falls within the scope of home rule power. One example contained in the committee report effectively disposes of the matter before us:

“Home-Rule City adopts an ordinance limiting the rates that may be charged by the telephone company for local calls. Long standing state regulation of utility rates precludes this subject from being considered a matter pertaining to home-rule government and affairs.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1652.)

We further note that our supreme court has twice quoted the above example as an instance where the subject area was one of overriding statewide concern and therefore not an area pertaining to local government and affairs. People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 486, 368 N.E.2d 100; Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 541, 338 N.E.2d 15.

This fact notwithstanding, the city argues that only utility rate regulation is precluded and that it may concurrently regulate utilities in other areas. We find the cases cited by the city in support of their position inappropriate. In City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 421 N.E.2d 196, on which the city most heavily relies, our supreme court upheld an ordinance which imposed certain conditions on lease agreements between landlords and tenants. While the court noted the existence of some State interest in the field of landlord-tenant law as evidenced by State statute, the court found that the State’s interest was not so far-reaching as to preclude a home rule unit from regulating concurrently with the State in this area. (85 Ill. 2d 101, 113.) However, in the present case, the longstanding statewide interest in the field of public utility regulation is manifested by the existence of the Illinois Commerce Commission and by the comprehensive and exclusive regulatory authority the commission has exercised for nearly 70 years. (See Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518, 523-25, 165 N.E.2d 329; City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 615, 17 N.E.2d 576; Chicago Motor Coach Co. v. City of Chicago (1929), 337 Ill. 200, 209-10, 169 N.E. 22.) Unlike the field of landlord-tenant law, the State’s interest in uniform utility regulation has traditionally been viewed as strong and pervasive.

Similarly, County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553, does not help the city’s cause. In Sexton, our supreme court permitted concurrent regulation of sanitary landfills through local zoning even though there existed statewide regulation of landfills by an administrative agency. However, as previously noted, the court’s finding that this area was one pertaining to local government and affairs was predicated on the traditional zoning power of counties and prior decisions of the court emphasizing local concern over garbage collection. (75 Ill. 2d 494, 511-12.) In the case before us, there is no such history of local control. The regulation of all aspects of utility business and service has long been held to be the exclusive province of the Illinois Commerce Commission (Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518, 523-25, 165 N.E.2d 329; City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 615, 17 N.E.2d 576; Chicago Motor Coach Co. v. City of Chicago (1929), 337 Ill. 200, 209-10, 169 N.E. 22) and the exclusivity of the commission’s jurisdiction has been repeatedly upheld against the assertions of municipal authority over matters of health and welfare (see, e.g., City of Witt v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1927), 324 Ill. 494, 155 N.E. 325 (striking down a municipal ordinance regulating the speed of trains within city limits); Northern Trust Co. v. Chicago Rys. Co. (1925), 318 Ill. 402, 149 N.E. 422 (striking down a municipal ordinance requiring street cars to be equipped with headlights)). Accordingly, the city is not exercising traditional regulatory powers in an area of traditionally local concern as the county was in Sexton.

We find that our State legislature and the courts of this State long ago recognized the overriding need for uniform, comprehensive utility regulation by vesting exclusive regulatory jurisdiction over this area in a single regulatory agency. Permitting every home rule unit in this State to regulate in this field would subject utilities to multiple and sometimes conflicting governmental requirements which could only result in confusion and would seriously disrupt the regulatory scheme now in place. The comments of the local government committee clearly demonstrate that the framers of our State constitution never considered utility regulation to be a proper subject of local legislation since this area was always “ ‘recognized as falling within the competence of state rather than local authorities’ ” (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 540, 338 N.E.2d 15). Accordingly, utility regulation cannot be considered a matter pertaining to local government and affairs.

In view of the foregoing, we hold that the city’s ordinance does not fall within the broad ambit of home rule power contemplated by article VII, section 6(a), of our State constitution. We therefore affirm the judgment of the trial court permanently enjoining the city from enforcing its ordinance.

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE SULLIVAN

text:
    PHILLIP GUST, et al., Plaintiffs-Appellants, v. THE VILLAGE OF SKOKIE, et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—2297
    Opinion filed June 22, 1984.

      Wayne Schwartzman, of Wayne Schwartzman & Associates, of Chicago, for appellants.

      Harvey Schwartz and Jeffrey D. Greenspan, both of Skokie, for appel-lees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from an order dismissing plaintiff’s action to compel defendants to convene an arbitration board pursuant to section 10 — 3—8 of the Illinois Municipal Code (section 10 — 3—8) (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 3—8). The sole issue before us is the propriety of that dismissal.

On April 14, 1983, plaintiffs filed the instant complaint for writ of mandamus, alleging that they represented members of the village of Skokie fire department (the firefighters); that a dispute existed between the firefighters and officials of the village of Skokie (village) concerning changes in the village’s merit pay and “sick day” policies; that on February 23, 1983, the firefighters made a written demand on the village that it convene an arbitration board as required by section 10 — 3—8, which provides that “[w]henever a dispute exists concerning wages, hours of labor, or conditions of employment of members of the fire department of any municipality with a population of 5,000 or more, a firemen’s arbitration board shall be appointed”; and that, on March 18, 1983, the village manager notified the firefighters that the dispute would not be submitted to arbitration. The firefighters asserted that the village had a nondiscretionary duty to convene an arbitration board upon proper demand, and asked that the trial court order the village to comply with the statute.

The village moved to dismiss the complaint, asserting in pertinent part that, as a home rule unit, it was not bound by section 10 — 3—8 because the village manager’s denial of the demand for arbitration effectively superseded that statute. Thereafter, a supplemental motion was filed, asserting as a further ground for dismissal that the village’s board of trustees had adopted an ordinance on May 16, 1983, which superseded sections 10 — 3—8 through 10 — 3—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 10 — 3—8 through 10 — 3— 11).

At a hearing on the motion to dismiss, the trial court indicated that it did not agree with the village’s position that the manager’s action superseded section 10 — 3—8, or that its ordinance enacted subsequent to the commencement of the firefighters’ suit could be applied to bar that action. However, it noted that the decisions of any arbitration board which might be empaneled would not be binding on the village (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 3—10), and stated that, in the light of the position taken by the village manager in denying the request for arbitration, and that of the board of trustees in enacting the superseding ordinance, it appeared that ordering the village to engage in nonbinding arbitration would be a futile act. It therefore granted the motion to dismiss, and this appeal followed.

Opinion

It is our view that the controlling issue in the instant case is the applicability of section 10 — 3—8, mandating advisory arbitration, in the light of a conflicting village ordinance declaring that disputes concerning employee wages and benefits shall not be submitted to arbitration (the ordinance). (Village of Skokie Ordinance No. 83 — 5—D— 1522.) It appears that adoption of this ordinance was within the broad powers granted to home rule units by section 6(a) of article VII of the 1970 constitution, which provides in relevant part that home rule units “may exercise any power and perform any function pertaining to [their] government and affairs ***.” (Ill. Const. 1970, art. VII, sec. 6(a).) Furthermore, although section 9 of the Transition Schedule of the 1970 Constitution provides that State statutes such as section 10 — 3—8, enacted prior to the effective date of the new constitution, “shall remain in force, until they shall expire *** or shall be altered or repealed ***,” it is established that any exercise by a home rule unit’s governing body of the power granted by section 6(a), including adoption of an ordinance, supersedes previously enacted statutes which are in conflict therewith. (Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 403 N.E.2d 258; Paglini v. Police Board (1975), 61 Ill. 2d 233, 335 N.E.2d 480.) Here, the village’s governing body has adopted an ordinance which conflicts with section 10 — 3—8 and, since the statute upon which plaintiffs rely in seeking mandamus has been superseded thereby, we believe that the complaint was properly dismissed.

Plaintiffs do not argue that the village had no power to supersede section 10 — 3—8; instead, they maintain that their action must be governed by the law which was in effect when the demand for arbitration was denied and the complaint for writ of mandamus was filed. Therefore, they posit, the applicable law is section 10 — 3—8, since the village ordinance was not adopted until May 16, 1983, one month after this action commenced.

We disagree. Recently, in Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 413 N.E.2d 90, we stated the general rule with regard to what law must be applied in an action based upon legislative enactment:

“[A] legislative body has a continuing right to amend a statute or ordinance, even while litigation is pending involving the legislation. The court must decide the case in accordance with the law in effect at the time of decision. [Citations.] This rule is equally applicable to cities and villages and the enactment of ordinances. [Citation.] Likewise, the repeal of an ordinance stays all proceedings arising from it which are pending at the time of appeal.” (Emphasis added.) (90 Ill. App. 3d 401, 404, 413 N.E.2d 90, 93.)

It is our view that this general rule is equally applicable to cases in which the action of a home rule unit has superseded a conflicting statute enacted prior to the effective date of the 1970 constitution. The constitution drastically altered the relationship between local and State government by granting home rule units greater autonomy in directing their government and affairs while simultaneously limiting the power of the General Assembly to circumscribe that autonomy. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 290 N.E.2d 240.) In order to carry out this constitutional shift in power, our courts have provided not just for parity between local governmental actions and previously enacted statutes which would limit the powers granted by section 6(a), but have given local actions an overriding effect by ruling that they supersede, i.e., “[obliterate, set aside, annul, replace, make void *** [or] repeal” conflicting State statutes. (Black’s Law Dictionary 1289 (5th ed. 1979).) The degree of protection granted to the autonomy of home rule units in the face of conflicting State statutes is most evident in Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 403 N.E.2d 258, wherein our supreme court ruled that the action of a home rule unit’s governing body in refusing to comply with a State statute enacted prior to the 1970 constitution was sufficient to supersede that statute. In the light of the superior position granted to the ordinances of home rule units, we believe that their adoption has the same effect as the repeal or amendment of a previously enacted State statute by the General Assembly.

Of course, as with the repeal or modification of any ordinance or statute, prior law should be applied where to do otherwise would affect a vested right or impair contractual obligations. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034, cert, denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000; Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844; Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 413 N.E.2d 90.) However, it has been held that statutes governing the wages, working conditions, or employment benefits of public employees do not create any vested rights in the continued existence of those laws. For example, in Chicago Patrolmen’s Association v. City of Chicago (1974), 56 Ill. 2d 503, 309 N.E.2d 3, cert, denied (1974), 419 U.S. 839, 42 L. Ed. 2d 66, 95 S. Ct. 68, the supreme court ruled that public employees had no vested right in the continuation of an ordinance providing for a specific rate or method of compensation, even where they were employed prior to the amendment of that ordinance. Similarly, in Jordan v. Metropolitan Sanitary District (1958), 15 Ill. 2d 369, 155 N.E.2d 297, the court ruled that an amendment providing for a mandatory retirement age was applicable to employees hired prior to the amendment’s adoption, noting that those employees had no vested rights in the continued existence of the prior statute. Finally, in a case considering the applicability of an amendment to a statute concerning police pension funds, this court noted:

“The statutory police pension fund provided for by this statute requiring compulsory participation and compulsory contributions by the police officers confers no vested rights upon the police officers or other participants ***; the Legislature may alter, amend, or repeal a statute of this type without interfering with any vested contractual rights, because there are no such vested contractual rights [citation]. *** A statute of this type may, as to the eligibility requirements for a pension in years of service and age of the officer, be modified, revised, amended, superseded, or repealed by the Legislature after the police officer’s original appointment [citation]; or after the police officer’s retirement and application for a pension under the statute as it existed at the time of his retirement and application [citation].” (Blough v. Ekstrom (1957), 14 Ill. App. 2d 153, 159-60, 144 N.E.2d 436, 439-40.)

Thus, contrary to plaintiffs’ assertions, the mere fact that this statute was in effect at the time that they were employed, and that they performed services while the statute was in effect, conferred no vested right in the continuation of that statute. Although the terms of employment of government employees are governed by statute in many instances, those statutes are not in the nature of a contract, and their repeal does not ordinarily affect any vested rights, since no vested rights arise thereunder.

Finally, we note that our decision is further supported by the fact that section 10 — 3—8 is not directly concerned with compensation or terms of employment, but provides merely a remedy or procedure for the resolution of disputes over those issues, and it is established that the unconditional repeal of a statute granting a special remedy stops all pending actions where the repeal finds them (Lincoln Com munity High School District No. 404 v. Elkhart Community High School District No. 406 (1953), 414 Ill. 466, 111 N.E.2d 532), since, as previously noted, courts must dispose of cases under the law in effect when the decision is rendered (Board of Education v. Brittin (1957), 11 Ill. 2d 411, 143 N.E.2d 555). This rule has been applied even where a cause of action had accrued and suit thereon had been filed prior to the repeal of the special remedy, and no other remedy was available. (See, e.g., Shelton v. City of Chicago (1969), 42 Ill. 2d 468, 248 N.E.2d 121, cert, denied (1969), 396 U.S. 906, 24 L. Ed. 2d 182, 90 S. Ct. 222; Wall v. Chesapeake & Ohio Ry. Co. (1919), 290 Ill. 227, 125 N.E. 20, appeal dismissed (1921), 256 U.S. 125, 65 L. Ed. 856, 41 S. Ct. 402. See also Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E .2d 1034, cert, denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000 (amendment to statute governing procedure for selecting school principals applicable, although adopted subsequent to commencement of action under prior statute); Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 413 N.E.2d 90 (amendment to ordinance governing procedure for granting licenses applicable, although adopted subsequent to commencement of action under prior ordinance).) In the instant case, the village ordinance had the effect of repealing section 10 — 3—8, and since that statute is one granting a special remedy or establishing a procedure for the resolution of disputes, we believe that it is immaterial that the dispute arose and the action was commenced prior to the adoption of the ordinance, and it is our view that the complaint was properly dismissed.

In the light of our determination that section 10 — 3—8 was inapplicable under the circumstances of this case, we need not reach the issues raised concerning the trial court’s stated reason for dismissing the action, since we may affirm a legally correct decision on any ground appearing in the record, regardless of the reasons advanced by the trial court. U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286.

For the foregoing reasons, the order of the trial court dismissing plaintiffs’ complaint for writ of mandamus is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.