author: JUSTICE DOWNING

text:
    JOAN HARNER, a/k/a Joan Kirchberg, Plaintiff-Appellant, v. WILLIAM H. HARNER, Defendant-Appellee.
    First District (2nd Division)
    No. 81-2514
    Opinion filed March 30, 1982.

      Charles R. Kirchberg, of Park Ridge, for appellant.
    No brief filed for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

This appeal arises from post-divorce decree proceedings instituted by former spouses Joan Harner (Joan) and William Harner (William), whose marriage was dissolved by order of the circuit court of Cook County on July 22, 1974. William has failed to file an appearance in this court or an appellee’s brief. Nevertheless, the merits of the appeal will be considered under the rule of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131, 345 N.E.2d 493.

Joan claims the circuit court erred (1) in using earlier child-support overpayments made by William to cancel his obligation for amounts due to Joan for their children’s extraordinary medical expenses; (2) in its determination concerning requested modification of child support for their two youngest children (Mark and Laura); (3) in refusing to enter its child support modification order nunc pro tunc to the date of the filing of Joan’s petition; and (4) in failing to conduct an impartial hearing.

Under the judgment of divorce entered July 22, 1974, the circuit court ordered William to pay Joan $900 per month unallocated child support for the parties’ four minor children. This amount was to be abated by a fixed percentage as each child reached majority. William was also to pay extraordinary medical care costs required for the children. Joan was to claim the child support as income on her Federal tax returns.

On December 8, 1980, William filed a petition with the circuit court requesting that Joan be ordered to comply with the tax provisions of the divorce judgment. Joan counterpetitioned, requesting among other things that William be ordered to reimburse her for medical expenditures she had made for the children and for an increase in child support for the parties’ “three” minor children. (In fact, their older son (Joseph) was 19 when the counterpetition was filed; their second son (Mark) became 18 in the month following the court order appealed here; the youngest child (Laura) was 15 when the counterpetition was filed.) Joan requested that the monthly level of child support be increased from $710 to $1,850. William later petitioned the court for an order that Joan reimburse him for $3,360 of child support he had overpaid her on behalf of Joseph after that child had reached his majority.

At the hearing, William related that his salary at the time of the divorce in 1974 was $34,000 per year, and that his gross income was about $42,000. In 1980, William had a salary of $43,000 and a gross income of $78,300. He worked as a salesman throughout the period. Much of his nonsalary income came from bonuses he received. He drove a company car, and the company paid much of his business expenses. William bought a home in 1979 for $105,000, with a $30,000 mortgage.

The parties’ oldest child (Terry), a daughter, had lived with William for nearly six years. She was 24 at the time of the hearing. William had ceased paying child support for her at the time she moved in with him. He continued to pay the remaining amount of support due, $710 per month, even after Joseph reached 18 on September 19,1979. Before reducing the child support for this son as he was entitled under the decree, William had made an overpayment of $3,360. He demanded a refund from Joan, but she refused. William stated he had been unaware of his right to reduce child support for Joseph upon the latter reaching his majority. He had reduced support payments from $900 to $710 per month only because his daughter Terry was living with him, and not due to her age.

Joan testified in detail as to expenses for the youngest child, Laura, including Laura’s share of the family housing and utility costs. The total amount was $505 per month. Joan testified that the monthly expenses for Mark were $560. Joan admitted these figures were largely guesses on her part.

At the time of the hearing, Joan had remarried. She was not working. She owned the home in which the family lived. It was worth $100,000 and was subject to an $8,000 mortgage.

Joan had spent approximately $2,150 of her own money for medical expenses which William was obligated to pay under the terms of the divorce decree. Up to the time of the hearing, he had provided only $350 of that amount.

The circuit court ruled that the amount of the overpayment of child support made by William ($3,660) should cancel out the amount of medical costs he owed Joan (approximately $1,800). The court refused to increase child support for Mark. It did order William to continue to make support payments for Mark in the amount required under the divorce decree until he graduated from high school (anticipated in June 1982), even though he would be 18 years old during that time. Finally, the court increased the child support for Laura from $315 to $400 per month.

I

Joan contends that the circuit court erred in allowing William to offset the amount he owed to Joan for the children’s medical expenses with the amount of child support he had overpaid.

The question of whether a parent may use overpayments of child support to offset other amounts actually due and owing has apparently not been answered in Illinois. The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree. (Whitman v. Whitman (1980),_Ind. App__, 405 N.E.2d 608; Webb v. Webb (Mo. App. 1971), 475 S.W.2d 134; Horne v. Horne (1968), 22 N.Y.2d 219, 292 N.Y.S.2d 411, 239 N.E.2d 348.) This is true even where, as here, the payments are made under the mistaken belief that they are legally required. (Crowder v. Crowder (La. App. 1974), 296 So.2d 842; see Annot., 47 A.L.R.3d 1031, 1058-61 (1973).) The policy underlying this rule is to prevent the supporting parent from, in effect, unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments. We find merit to this rule and therefore adopt it.

Here, the circuit court offset William’s indisputable debt of nearly $1,800 to Joan with the $3,660 he had overpaid her for child support of the older son. This ruling violated the general rule noted above. There being no evident reason in this case to disregard the general rule, we'find the circuit court’s order to be erroneous and reverse it. William must reimburse Joan for the nearly $1,800 amount due her for the children’s medical costs. He is not to be reimbursed for any of the overpayment.

II

Joan argues the circuit court erred in confirming the amount of child support payable on behalf of the younger son (Mark) and in raising the youngest child’s (Laura) support only from $315 to $400 per month.

Under section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 510), an award of child support may be modified only upon a showing of a substantial change in circumstances. The evidence must establish that both the needs of the child and the supporting parent’s ability to pay have increased. (Scott v. Scott (1979), 72 Ill. App. 3d 117, 124, 389 N.E.2d 1271.) The circuit court’s decision on this issue is one which rests in its sound discretion. It will not be reversed absent a showing of an abuse of that discretion. In re Marriage of Schmerold (1980), 88 Ill. App. 3d 348, 350, 410 N.E.2d 629.

Joan cites Addington v. Addington (1977), 48 Ill. App. 3d 859, 863, 363 N.E.2d 151, in support of her argument. Therein, the Fifth Division of this court stated that a proper basis for showing the requisite increased need of a child is evidence that, since entry of the original support order, the child has grown older and the cost of living has risen. The court went on to state that, if the evidence also shows an increase in the supporting parent’s ability to pay, an increase in child support would be warranted. (48 Ill. App. 3d 859, 863.) The Addington rule has been relied upon in several cases, including the Schmerold and Scott cases cited above. These latter cases were respectively cited in In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 682, 426 N.E.2d 246, and In re Marriage of Helfrich (1981), 101 Ill. App. 3d 1070, 1072, 428 N.E.2d 1149.

We believe the Addington rule should not be mechanically applied by the courts when making support-increase determinations. Simple logic dictates that the first element of the test, the child having grown older, will always be met. Further, given the economic climate of this country over the last two decades, it is obvious the second element, an increase in the cost of living, can generally be shown. As a result, the test is reduced to the question of whether the supporting parent’s ability to pay has increased. We posit that application of the Addington rule in such circumstances fails to comply with the requirements of section 510 of the Act. Rote application of that rule simply fails to determine that the required showing of a substantial change in circumstances has been made.

Instead, we believe the proper test can be found in the cases cited by the Addington court in formulating the rule, Smith v. Smith (1971), 132 Ill. App. 2d 722, 270 N.E.2d 206, and Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 214 N.E.2d 139. In Smith, the court noted that the cost of living had increased but focused upon the fact that two of the parties’ three children had begun school since entry of the initial support order, resulting in new expenses. The court also found the husband’s income had increased significantly without the addition of extra expenses to him. In Kelleher as well, the court noted the parties’ three children had begun school since entry of the original support order, entailing new costs. Further, after entry of the original order, one of the children was diagnosed as mentally retarded, which involved expenses unanticipated at the time of the first decree. The court also noted the husband’s income had more than doubled, allowing him to expend sums for what it considered “luxury” activities. In sum, these cases contained specific evidence of significant unforeseen or otherwise additional increases in the custodial parent’s cost of living which constituted the requisite substantial change in circumstances.

Applying such reasoning to the present case, it is clear the circuit court correctly denied an increase in support for the second son, Mark. The record is devoid of evidence of Joan’s expenses for Mark at the time of the original decree in 1974. Also, in contrast to the evidence she presented about her youngest child, Laura, Joan did not even attempt to itemize the individual factors underlying her determination of the amount she spent per month on Mark. By her own admission, the figure was a guess. The circuit court committed no error in modifying the earlier decree solely to the extent of requiring William to pay support only until Mark’s graduation from high school, expected eight months after his 18th birthday.

As for Laura, the court’s order increasing support by $85 per month was not an abuse of discretion. As Joan’s brief notes, “the record is devoid of any evidence of the lifestyle of the child.” Joan’s testimony concerning the 1980 expenses for this daughter admittedly involved only guesses. In making her argument that the support payments should be greater, Joan relies upon “guidelines” established by the Domestic Relations Division of the Circuit Court of Cook County, which set support amounts as a percentage of income. Joan asserts the circuit court ignored these guidelines here. We find this argument without merit. This court has previously noted that an order setting child support solely on the basis of such arbitrary percentage rates does not comply with the requirements of section 505 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 505). (See In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1114, 421 N.E.2d 1308.) No support order will be reversed simply for failing to adhere to these guidelines. Here, the circuit court committed no error in modifying the support order to the extent which it did.

III

Joan contends the circuit court abused its discretion in failing to enter the order increasing child support nunc pro tunc to the date of the filing of the modification petition.

A nunc pro tunc order is an entry made now to make the record speak for something done previously. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1055, 399 N.E.2d 216, appeal denied (1980), 81 Ill. 2d 584.) One of the uses of such an order is to correct a record which lacks an order actually made earlier but omitted therefrom for some reason. If there was no earlier order to which a nunc pro tunc order can relate back, use of such an order is improper. Furth v. Furth (1972), 5 Ill. App. 3d 73, 76, 283 N.E.2d 102.

Here, a nunc pro tunc order would be inappropriate since no earlier order modifying the initial support decree was made but omitted from the record. However, the circuit court could have retroactively modified the support obligation to the date of filing of the modification petition. (See In re Marriage of Junge (1979), 73 Ill. App. 3d 767, 771, 392 N.E.2d 313; Dixon v. Dixon (1977), 45 Ill. App. 3d 934, 938, 360 N.E.2d 486.) The record does not indicate the circuit court considered this option. We find no basis in the record why the modification order should not have been made retroactive. We therefore modify the judgment to provide for such retroactive modification to December 1980.

IV

Joan asserts she did not receive a fair hearing, and the case should be remanded for rehearing for that reason.

We have reviewed the record of proceedings in this case. In our opinion, neither Joan nor her children were prejudiced by the manner in which the hearing proceeded below. Consequently, we decline to accept her argument.

For the foregoing reasons, we affirm that portion of the circuit court’s decision concerning child support for Mark; we modify the circuit court’s decision concerning child support for Laura by making the increase thereof retroactive to the filing of Joan’s petition; and we reverse that part of the circuit court’s order allowing William to offset amounts he owed to Joan with support overpayments he had made.

Affirmed in part; reversed in part; modified in part.

STAMOS, P. J., and BERLIN, J., concur.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    JOSEPH NENDZA et al., Plaintiffs-Appellants, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-327
    Opinion filed March 31, 1982.

      Jeffrey Lawrence, of Bailey, Bradley & Lawrence, of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, and Richard H. Schnadig and Thomas M. White, both of Vedder, Price, Kaufman & Kammholz, both of Chicago (Michael T. Prousis, Assistant Attorney General, and Marilyn P. Maledon, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County affirming the decision of the Board of Review of the Illinois Department of Labor (Department) which denied the plaintiffs certain unemployment compensation benefits for the period between August 2, 1975, and November 1, 1975.

On August 1,1975, employees of the MGD Graphic Systems Division of Rockwell International Corporation (Rockwell) in Cicero, Illinois, voted to strike. Collective bargaining negotiations between Rockwell and the plaintiffs’ union continued during the strike. On October 24, 1975, Rockwell announced its decision to close the plant.

Certain employees (other than the plaintiffs) filed for benefits under the Unemployment Compensation Act (Act) (Ill. Rev. Stat. 1975, ch. 48, par. 300 et seq.) within a few days of the commencement of the strike. These claims were initially denied by department claims adjudicators. The claimants appealed, and on April 20, 1977, the Director of Labor reversed the adjudicators’ decisions. The Director found that the work stoppage was the result of a lockout, and not a result of a labor dispute, and that the claimants were entitled to benefits commencing on the date of the strike.

When the 79 plaintiffs in the instant case learned of the Director’s decision, they immediately filed antedated claims for benefits commencing August 2, 1975. These claims were denied by department claims adjudicators. The plaintiffs appealed, and a referee conducted a consolidated hearing.

At the hearing Joseph Nendza testified on behalf of 63 claimants who allegedly were denied permission to file claims in August 1975. He stated that in August 1975 he went to the local unemployment office at 51st Street and Cicero Avenue to apply for benefits. Nendza was told by a department employee, a middle-aged white woman, that he could not file a claim because he was on strike.

George Stuit testified on behalf of certain other claimants who did not attempt to file for benefits because they had heard from fellow strikers that they were not eligible. Leonard Cumbo testified on behalf of those claimants who had filed for benefits but did not appeal the denial of their claims.

John Deifel, who at the time of the hearing was the manager of the local unemployment office located at 5101 South Cicero Avenue, Chicago, testified that it is the Department’s policy to allow all individuals to file claims regardless of the reason for their unemployment. The determination of eligibility for benefits is made at the central office, not at the local offices.

Although Deifel was not assigned to the Cicero office in August 1975, he testified, over objection, that Nendza’s description of the woman to whom he spoke applied to one of two employees. Deifel spoke to both women, and neither one would have refused to accept a claim for benefits. Deifel also testified that 100 to 150 Rockwell workers filed claims in August 1975.

Elizabeth Carter, a claims representative, testified that it was the Department’s policy to instruct all claims examiners to take all claims. She also was not assigned to the Cicero office in August 1975.

In a decision dated April 25, 1978, the referee affirmed the denial of the plaintiff’s claims because they were not timely filed. The referee relied on a department regulation which provides that a claim must be filed within one year of the week of unemployment for which benefits are sought. The referee also found that the plaintiffs had not been denied permission to file their claims in August 1975.

On March 30,1979, the Board of Review affirmed the decision of the referee. Plaintiffs filed a complaint for administrative review, and in a written order dated February 7,1980, the trial court affirmed the decision of the Board of Review.

On appeal the plaintiffs contend (1) that the one-year limitation period deprives them of due process of law; (2) that the one-year limitation period commenced on the date the plaintiffs knew or should have known that they could successfully make a claim for benefits; and (3) that the Department is estopped from asserting the limitation period.

Pursuant to section 500B of the Act, an unemployed individual is eligible to receive benefits with respect to a week of unemployment only if the Director finds that he has made a claim for benefits with respect to that week in accordance with such regulations as the Director may prescribe. (Ill. Rev. Stat. 1977, ch. 48, par. 420B.) The pertinent regulations established by the Director are as follows:

“17B-5. Notwithstanding any other provision of this Regulation, no benefits or waiting period credit shall be allowed with respect to a week of unemployment unless the individual has filed a claim and reported with respect to such week within one year after the first day of such week.”
“17F-Extended Antedation. When an individual files a claim or reports with respect to a week not later than one year after the first day of the week, such claim may be antedated to the first day of the week, or the individual may be deemed to have reported on his report day for the week, as the case may be, in any instance in which failure to file or report at an earlier time is established by the individual to be due to
1. The individual’s unawareness of his rights under the Act, or 2. Failure either of the employing unit or of the Division of Unemployment Compensation to discharge its responsibilities or obligations under the Act or the Regulations, or 3. Any act of an employing unit in coercing, warning, or instructing the individual not to pursue his benefit rights, or 4. Circumstances beyond the individual’s control, provided that the individual files his claim or reports, as the case may be, either at his first available opportunity after the reason for failure to file or report no longer exists, or not more than fourteen days after the date of such first available opportunity.”

Pursuant to the clear and unambiguous language of the regulations, the plaintiffs’ claims are barred because they were not filed within one year of the first day of their unemployment. The plaintiffs argue, however, that this one-year limitation on antedation is an arbitrary time period which deprives them of due process of law.

We first note that any statute of limitation is, by definition, arbitrary. (Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 89 L. Ed. 1628, 65 S. Ct. 1137.) However, the reasonableness of the limitation period must be judged in light of the circumstances confronting the Director and the ends which he sought to accomplish. (See Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.) In its decision in the instant case the Board of Review pointed out that prompt filings are necessary so that the Department can ascertain whether, with respect to a week of unemployment, the claimant met certain eligibility requirements such as availability, ability to work and an active search for work. We believe that the one-year limitation is reasonable and necessary for the orderly administration of the unemployment compensation system.

The plaintiffs point out that more than 20 months had passed from the date of the strike to the date that the Director issued his decision concerning the eligibility for benefits of Rockwell employees. The plaintiffs assert that the regulations in effect barred their claims before they became aware of them. However, in Anderson v. Wagner, our supreme court stated that although such a result — a cause of action barred before its discovery — seems harsh and unfair, there is no due process violation if the limitation period is reasonable. As we have previously stated, the limitation in the instant case is reasonably related to the interests of the Department of Labor.

The plaintiffs next suggest that this court should apply the “discovery rule” articulated in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, and hold that the one-year limitation period commenced on April 20, 1977, when the Director held that the work stoppage was the result of a lockout and not the result of a labor dispute. The plaintiffs contend that it was on this date that they knew or should have known that they could successfully make a claim for benefits.

In Rozny the plaintiffs brought an action for damages which resulted from an inaccurate survey prepared by the defendant. In determining from what date the statute of limitations should be computed, the supreme court stated:

“The basic problem is one of balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue. There are some actions in which the passage of time, from the instant when the facts giving rise to liability occurred, so greatly increases the problems of proof that it has been deemed necessary to bar plaintiffs who had not become aware of their rights of action within the statutory period as measured from the time such facts occurred. (See Skinner v. Anderson, 38 Ill. 2d 455, 458; New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 241 A.2d 633.) But where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue.” (43 Ill. 2d 54, 70, 250 N.E.2d 656, 664.)

The court determined that the plaintiffs’ cause of áction accrued when they knew or should have known of defendant’s surveying error,

Subsequently, our courts have applied the discovery rule in a variety of tort actions where the plaintiff did not learn of his injury until after the expiration of the pertinent limitation period. (See Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 334 N.E.2d 160 (defamation); Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450 (medical malpractice); Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305 (products liability action); Kohler v. Woollen, Brown Hawkins (1973), 15 Ill. App. 3d 455, 304 N.E.2d 677 (legal malpractice).) However, the instant case is clearly distinguishable from those cases in that the plaintiffs knew or should have known of their right to file a claim for unemployment benefits at the time of their unemployment in August 1975. What the plaintiffs discovered on the date of the Director’s decision was that their claims for benefits would have been allowed. The discovery rule is not applicable to a situation where a plaintiff waits to file suit or a claim until he has some assurance that he will be successful on the merits of his claim.

Finally, the plaintiffs argue that because of the misconduct of the Department’s employees in denying the plaintiffs’ permission to file their claims, the Board is estopped from asserting the statute of limitation. Before we can evaluate the merits of the claim of estoppel, we must first determine whether the Board’s conclusion that the plaintiffs were not denied permission to file their claims was against the manifest weight of the evidence.

It is the responsibility of the administrative agency to weigh the evidence and to determine the credibility of the witnesses. (Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 336 N.E.2d 573.) Pursuant to the Administrative Review Act, the findings and conclusions of the administrative agency on questions of fact are prima facie true and correct. (Ill. Rev. Stat. 1977, ch. 110, par. 274.) A reviewing court cannot reweigh the evidence; its function is solely to ascertain whether the agency’s decision is against the manifest weight of the evidence. Schoenbeck v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 366, 387 N.E.2d 738.

The plaintiffs’ evidence presented at the hearing consisted of Nendza’s testimony that an unidentified woman told him that he could not file a claim because he was on strike. The Department presented evidence that many other Rockwell employees did in fact file timely claims. It also established that it was the Department’s policy to allow all individuals to file claims, regardless of the merits, in the local offices since the determination of eligibility is made at the central office.

After reviewing the evidence, the Board concluded that the plaintiffs were not denied permission to file claims. In its decision, the Board explained its reasoning:

“In any event, even if we accepted the appellants’ argument, we would have to note that a considerable number of their co-workers filed and maintained claims for benefits during the pertinent weeks involved in the appeal. The question arises why agency personnel would allow some claimants to file claims while denying the right to others whose circumstances were the same. Moreover, assuming arguendo, that certain claimants were informed that they would not be permitted to file claims and subsequently passed on the information to others who did not then bother to even attempt to file, it seems curious to us why this ‘grapevine effect’ did not occur as other members of the same group of workers were successful in pursuing their claims for benefits. The inescapable answer is that those individuals who did not file claims or who did not pursue their claims after having filed them, did not act on the basis of any information given them by agency personnel, but on their own beliefs that they would not be eligible, * * * or other members of their group who had this belief, to the extent that they placed no reliance upon the opinions of their co-workers who did file and pursue their claims.”

We cannot say that such a conclusion was against the manifest weight of the evidence.

The plaintiffs argue that the Board’s decision was based on inadmissible evidence. They first object to the fact that at the hearing the referee admitted the hearsay testimony of Deifel that he spoke to the two employees who met Nendza’s description and neither one would have refused to accept a claim. We agree that such testimony was hearsay and inadmissible in an administrative proceeding. (Novicki v. Department of Finance (1940), 373 Ill. 342, 26 N.E.2d 130; Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 375 N.E.2d 437.) However, because we believe that this statement had minimal impact on the Board’s decision, we believe the error was harmless. Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773, 416 N.E.2d 303.

The plaintiffs also contend that the testimony concerning the Department’s policy of accepting all claims at the local offices was incompetent. We disagree. The rule in Illinois is that proof of a regularly followed business routine is admissible provided there is some evidence that it was followed in the particular case. (Goetz v. Country Mutual Insurance Co. (1975), 28 Ill. App. 3d 154, 328 N.E.2d 109.) We believe that the Department did present some evidence that the policy was followed with respect to Rockwell employees. Deifel testified that in August 1975,100 to 150 Rockwell employees were permitted to file claims. Thus, the evidence concerning the Department’s policy was admissible.

We conclude that the Board’s finding that there was no misconduct by Department employees was supported by the evidence. Therefore, we reject plaintiffs’ estoppel argument.

For the foregoing reasons, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

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


author: JUSTICE RIZZI

text:
    UPTOWN FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff, v. GEORGE T. KOTSIOPOULOS et al., Defendants.—(GEORGE T. KOTSIOPOULOS, Petitioner-Appellee, v. A.A. STORE FIXTURE CO., INC., et al., Respondents-Appellants;—THE UNITED STATES OF AMERICA, Intervening Petitioner-Appellee, v. CENTRAL NATIONAL BANK OF CHICAGO, Trustee, Respondent-Appellant.)
    First District (3rd Division)
    No. 80-586
    Opinion filed March 31, 1982.

      Lawrence Sulzbacher and Kenneth E. Scheiwe, both of Chicago, for appellants.
    Thomas P. Sullivan, United States Attorney, Northern District of Illinois, of Chicago (Mary Anne Mason and Frederick H. Branding, Assistant United States Attorneys, and Judith Irle, of counsel), for appellee United States of America.
    No brief filed for appellee George T. Kotsiopoulos.
   JUSTICE RIZZI

delivered the opinion of the court:

George T. Kotsiopoulos, defendant in a mortgage foreclosure action, filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) attacking the order which vacated dismissal of the foreclosure action for want of prosecution and all orders based thereon, including the order of default entered against him and the order approving the sheriffs report of sale and distribution filed after the sale of the subject property. The United States sought leave to intervene, claiming that although it had a valid and subsisting lien on the property when the foreclosure action was instituted, it did not receive notice of the action, and that it has a right of redemption under 28 U.S.C. §2410 (1976). A.A. Store Fixture Co., Inc., a judgment creditor of Kotsiopoulos and a defendant in the foreclosure action, and Central National Bank of Chicago as trustee under trust No. 23640 (CNB), which purchased the property at the foreclosure sale, filed a motion to strike and dismiss the section 72 petition. This motion was denied. CNB also filed a motion opposing intervention by the United States. Following a hearing, the trial court granted the relief sought in the section 72 petition and permitted the United States to intervene. It also permitted the United States to deposit with the court the sum necessary for redemption in the event the court’s decision was reversed on appeal. A.A. Store Fixture and CNB appeal the orders of the trial court. We affirm.

On June 29, 1978, Uptown Federal Savings and Loan Association of Chicago filed a complaint to foreclose mortgages on real estate commonly known as 7301 N. Hamilton, Chicago, Illinois. The following parties were joined as defendants: (1) George T. Kotsiopoulos, the owner of record, and his wife; (2) Chicago Title and Trust as trustee under a trust deed dated January 13, 1976; (3) Bank of Chicago as assignee under an assignment of rents; (4) A.A. Store Fixture Co., Inc., as judgment creditor of Kotsiopoulos; and (5) unknown owners. A.A. Store Fixture was the only defendant to file an answer. On October 10, 1978, the foreclosure action was dismissed for want of prosecution when none of the parties responded to the calendar call. The order of dismissal was subsequently vacated, apparently without notice to Kotsiopoulos and the other defendants who had not filed appearances.

On January 4,1979, Uptown Federal moved for a default judgment in the foreclosure action against all defendants except A.A. Store Fixture, which filed an affidavit stating that its judgment against Kotsiopoulos in the amount of $14,631.13 plus costs and interest was not yet satisfied and that it claimed a lien in that amount on the property. The court granted Uptown Federal’s motion. Also on January 4, the court entered its decree of foreclosure and sale, in which it ordered the public sale of the property by the sheriff with the proceeds to be paid to Uptown Federal in the amount of $38,113.86, which the court found due upon the notes and mortgages, with any remaining proceeds to be paid to A.A. Store Fixture to the extent of its lien.

The property was sold on February 15, 1979, to CNB for $38,963.90. The court subsequently approved the sheriff’s report of sale and distribution. When no timely redemption was made, the sheriff issued a deed to the property to CNB on August 30, 1979.

On September 27, 1979, Kotsiopoulos filed a section 72 petition in which he contended that he received no notice regarding the foreclosure proceedings other than the original complaint and summons. He further alleged that he periodically checked the court file, and in so doing, he learned that the case had been dismissed for want of prosecution. His first knowledge of what had transpired came when he received a letter dated September 7, 1979, from the attorney representing the beneficiaries of CNB informing him of the sale of the property and advising him that he must vacate the premises within seven days. Kotsiopoulos contacted an attorney and the Small Business Administration, which was the assignee of a second mortgage given by Kotsiopoulos to Bank of Chicago. Kotsiopoulos also alleged that the value of the property greatly exceeded the bid accepted at the foreclosure sale, and that the successful bidder was a nonexistent trust used to disguise the true identity of the bidder and perpetrate a fraud upon the court. Kotsiopoulos sought to have the order vacating the dismissal for want of prosecution vacated as well as all subsequent orders.

A.A. Store Fixture and CNB filed a motion to strike and dismiss the section 72 petition, in which they alleged that the petition failed to show due diligence and a meritorious defense to the action. This motion was denied.

Kotsiopoulos subsequently filed an amended section 72 petition in which he realleged the counts in the original petition and further alleged that Irving Naiditch, president of A.A. Store Fixture, borrowed the money used to buy the property at the foreclosure sale from Central National Bank, although the sheriff’s report of sale shows the successful bidder as CNB. The trust agreement for the trust was unexecuted, and none of the beneficiaries paid any money for the property. A.A. Store Fixture and CNB filed a response in which they admitted that “the Trust, as purchaser, is chargeable with knowledge of any defects in the proceedings * 0 They denied the essential allegations of the petition. Following an evidentiary hearing, the court vacated the order of foreclosure and all subsequent orders based thereon.

Meanwhile, during the pendency of the section 72 petition, the United States filed a petition for leave to intervene for and on behalf of the Small Business Administration which held a lien on the property. CNB filed a motion to dismiss the petition, which was denied, and leave to intervene was granted. The court also entered an order allowing the United States the right to redeem from the foreclosure sale if the sale was reinstated on appeal.

A.A. Store Fixture and CNB first argue that the court erred in refusing to strike and dismiss the original section 72 petition. The purpose of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) is to enable a party to bring before the court rendering a judgment matters of fact not appearing in the record which, if known to the court at the time the judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294, 295.) A section 72 petition is addressed to the equitable powers of the court (Windmon v. Banks (1975), 31 Ill. App. 3d 870, 874, 335 N.E.2d 116, 119) and is primarily concerned with the prevention of injustice. (Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 779, 366 N.E.2d 310, 316.) A liberal construction is used to achieve this end. (Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App. 3d 689, 692, 365 N.E.2d 375, 377.) Relief under this section will be granted where the petitioner shows a reasonable excuse for failure to act within the appropriate time and a meritorious defense. See Johnson-Olson Floor Coverings, Inc. v. Branthaver (1968), 94 Ill. App. 2d 394, 397, 236 N.E.2d 903, 905.

We believe that Kotsiopoulos’ section 72 petition set forth sufficient allegations to withstand the motion to strike and dismiss. In his petition, Kotsiopoulos alleged that he periodically checked the file in this case and as a result learned that the case had been dismissed for want of prosecution. He made efforts to obtain refinancing of the mortgage. He also alleged that the sum bid at the foreclosure sale shocked the conscience because it represented less than one-half the actual value of the property. In addition, the purchase was made by a nonexistent trust, the use of which was intended to disguise the true identity of the buyer and perpetrate a fraud upon the court. Kotsiopoulos contacted an attorney upon receiving the letter from CNB’s attorney informing him that he must vacate the premises.

The allegations in the petition were supported by affidavit as required by section 72(2) of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 72(2)). In the affidavit, Kotsiopoulos stated that he had money available with which he could have paid off the arrearage on the mortgage or redeemed from the foreclosure sale if he had received adequate notice.

In their motion to strike and dismiss, A.A. Store Fixture and CNB attacked the sufficiency of the section 72 petition on the grounds that it failed to set forth a showing of due diligence and a meritorious defense. A motion to dismiss attacks the legal sufficiency of the petition, not its factual sufficiency. (See Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 632, 379 N.E.2d 1206, 1213.) In determining legal sufficiency, the court must accept as true all well-pleaded facts and must then determine whether the allegations of the petition, when interpreted in a light most favorable to the petitioner, are sufficient to state a cause of action against respondents. (See Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 863, 403 N.E.2d 470, 474.) A petition should not be dismissed unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the petitioner to relief. (Courtney v. Board of Education (1972), 6 Ill. App. 3d 424, 425, 286 N.E.2d 25, 26.) Plainly, Kotsiopoulos’ allegations, when interpreted in a light most favorable to Kotsiopoulos, show that Kotsiopoulos acted with due diligence and that he has a meritorious defense.

Moreover, the general allegations in the motion to dismiss the petition are not sufficient to support the granting of the motion. A motion to dismiss or strike a pleading because it is substantially insufficient in law must specifically point out why the pleading is thought to be insufficient (Lee v. Conroy (1973), 13 Ill. App. 3d 694, 696, 300 N.E.2d 505, 506; Ill. Rev. Stat. 1979, ch. 110, par. 45(2)), so that the party against whom the motion is directed may be allowed to cure the specified objection by amendment. (Lee v. Conroy (1973), 13 Ill. App. 3d 694, 696, 300 N.E.2d 505, 506; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 946-47, 338 N.E.2d 912, 915.) Here, the only allegations set forth in the motion to strike and dismiss are the broad allegations that the petition does not show due diligence and a meritorious defense. The motion does not specifically point out wherein the petition was lacking, as required by section 42(2) of the Civil Practice Act. This omission is significant because Kotsiopoulos subsequently filed an amended petition in which specific failings in the original pleading could have been redressed. We conclude that the trial court properly denied the motion to strike and dismiss the original section 72 petition.

A.A. Store Fixture and CNB also contend that the section 72 petition should not have been granted because Kotsiopoulos failed to prove at the hearing on the petition that he acted with due diligence and that he had a meritorious defense.

At the evidentiary hearing, Kotsiopoulos testified that he resides at the property in question. When he learned of the foreclosure suit, he checked the court file to determine what action was being taken. Late in the year, a clerk informed him when he went to check the file that no further action was being taken. He relied on what the clerk told him. Kotsiopoulos further testified that in 1978 he lacked funds with which to pay off the entire mortgage but that his brother said he would be “interested in purchasing the mortgage.” Kotsiopoulos’ brother testified that he offered to help his brother and that he unquestionably had access to the requisite funds.

Irving Naiditch testified that he has a company known as A.A. Store Fixture. This company borrowed money from Central National Bank, and the funds were used to purchase the subject property at the foreclosure sale, although the bid was not made on behalf of the company. The beneficiaries of the trust which purchased the property were his four daughters, and they did not pay anything for the property. When asked whether the trust document showed that it had not been signed by Central National Bank, Naiditch replied, “It seems that way.” During Naiditch’s testimony, the attorney for CNB and A.A. Store Fixture conceded that CNB did not claim to be a bona fide purchaser protected by section 72(5) (Ill. Rev. Stat. 1979, ch. 110, par. 72(5)).

Kurt Penn, the attorney who handled this matter on behalf of Uptown Federal, testified that he sent a copy of the notice and motion requesting the court to enter an order approving the sheriff’s report of sale and distribution on March 2, 1979, to Kotsiopoulos. In rebuttal, Kotsiopoulos denied ever receiving this notice.

A.A. Store Fixture and CNB argue that Kotsiopoulos failed to show that he used diligence in following his case, and that he also failed to prove a meritorious defense because he did not prove that his brother provided him with the necessary funds or that he tendered funds to Uptown Federal. Additionally, they argue that Kotsiopoulos did not prove nonreceipt of the notice of motion for approval of the sheriff’s sale. Therefore, they contend, the section 72 petition should not have been granted. We disagree.

As we previously stated, a petition to set aside a judgment under section 72 addresses itself to the equitable powers of the court. Where a default judgment has been entered under unfair, unjust or unconscionable circumstances, the judgment will be vacated in the interests of justice and fairness. (Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 1019, 329 N.E.2d 376, 379.) In determining whether a section 72 petition should be allowed, the conduct of the party opposing the petition may be considered. Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App. 3d 689, 692, 365 N.E.2d 375, 378; see Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 1019, 329 N.E.2d 376, 380.

Under the circumstances of this case, we believe that the granting of the section 72 petition will achieve a just result and that it is not unreasonable to compel the parties to go to trial on the merits. (See Windmon v. Banks (1975), 31 Ill. App. 3d 870, 876, 335 N.E.2d 116, 120-21.) Kotsiopoulos did not completely ignore the foreclosure action; he checked the file and learned that no action was being taken. He testified that he never received the notice and motion regarding approval of the sheriff’s report on the sale, and the trial court chose to believe this testimony. In section 72 proceedings, the determination of the credibility of witnesses rests with the trier of fact, and a reviewing court will not substitute its judgment for that of the trier of fact unless it is against the manifest weight of the evidence. Collins v. Prestige Casualty Co. (1977), 54 Ill. App. 3d 762, 765, 370 N.E.2d 103, 106; Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 145, 350 N.E.2d 90, 95.

In addition, Kotsiopoulos testified regarding funds that were accessible to him that could be used to retire the mortgage or effect a redemption. Moreover, we believe that the concession of the attorney for A. A. Store Fixture and CNB that CNB was not protected by section 72(5) is an important factor to be considered here. There is some question regarding the existence of the trust which allegedly purchased the property. Under the totality of the circumstances, the only just result is to grant the petition, and the trial court acted properly in so doing.

At oral argument, counsel for A.A. Store Fixture and CNB agreed that if this court found that the section 72 petition was properly granted, then their arguments opposing the United States’ intervention and right of redemption would be moot. We therefore will not address these issues.

Accordingly, the orders of the trial court are affirmed.

Affirmed.

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

       The court determined that rather than vacating the order which vacated the order dismissing the cause for want of prosecution, it would allow that order to stand so that these proceedings could continue without delay. The court ordered that Kotsiopoulos’ appearance herein would be a general appearance, and he was ordered to answer or otherwise plead to the complaint within 21 days. No objection was made to this procedure.

       Although Kotsiopoulos has not filed a brief in this matter, we shall consider the merits of his position as we are permitted to do under First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

       This provision states:
      “Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order or judgment pursuant to the provisions of this Section does not affect the right, title or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition, nor affect any right of any person not a party to the original action under any certificate of sale issued before the filing of the petition, pursuant to a sale based on the order or judgment.”


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GUNTIS UTINANS, Defendant-Appellee.
    First District (3rd Division)
    No. 80-996
    Opinion filed March 31, 1982.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Richard Burke, and Frank Castiglione, Assistant State’s Attorneys, of counsel), for the People.
    Michael B. Cohen, Steven Ackerman, and Abraham N. Goldman, all of Chicago, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court of Cook County which reduced the sentences of the defendant, Guntis Utinans.

Following a jury trial the defendant was sentenced to three concurrent terms of 15 to 30 years in the penitentiary for conviction of rape, aggravated kidnapping, and deviate sexual assault. On direct appeal this court affirmed defendant’s convictions and sentences. (People v. Utinans (1977), 55 Ill. App. 3d 306, 370 N.E.2d 1080.) We expressly rejected defendant’s argument that he was penalized by the imposition of an excessive sentence for exercising his right to a jury trial while certain codefendants who pled guilty received less severe sentences. This court noted that the sentences imposed upon the defendant were fully justified by the evidence adduced at trial and the total lack of remorse on the part of the defendant. 55 Ill. App. 3d 306, 325.

Subsequently the defendant filed a petition for post-conviction relief in which he alleged several violations of his constitutional rights. Following an evidentiary hearing the trial court denied defendant’s request for relief on March 17, 1980. On March 25, 1980, the defendant filed a document entitled “Motion pursuant to Post-Conviction Act and Section 72” in which he asked the trial court to reduce his sentence. The defendant argued that the codefendants who pled guilty received less severe sentences than he and that this court’s holding on the issue of an excessive sentence was erroneous.

At the hearing on this motion the trial court discussed the facts of another trial over which he had presided, People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408. In Carroll two defendants were convicted of rape, aggravated kidnapping and deviate sexual assault and sentenced to three concurrent terms of 15 to 30 years. Certain codefendants had pled guilty and received less severe sentences. On appeal the defendants, like the defendant in the instant case, asserted that they were penalized because they elected to go to trial. Although the appellate court rejected this claim, the court reduced the defendants’ sentences in response to their argument that their sentences were excessive. This case was decided prior to People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, in which our supreme court held that absent an abuse of discretion by the trial court, a sentence may not be altered upon review.

In referring to People v. Carroll, the trial court noted that the reviewing court reduced the sentences in Carroll while this court refused to do so in the instant case. The trial court commented:

“I don’t mean the [defendant’s] sentence in my judgment was improper. I thought it was an appropriate sentence or I would not have imposed it. But when Utinans, who received the identical sentence, did not get a reduction from the appellate court, it struck me as not fair * * *. I thought it inequitable that some fellows should have their sentences reduced and not the others.”

The trial court granted defendant’s motion and reduced his sentence to terms of 8 to 16 years, and the State appeals.

The Post-Conviction Hearing Act provides a remedy for imprisoned persons who claim that in their trials substantial Federal or State constitutional rights were violated. (Ill. Rev. Stat. 1979, ch. 38, pars. 122 — 1 through 122 — 7; People v. Stewart (1978), 66 Ill. App. 3d 342, 383 N.E.2d 1179, cert. denied (1979), 441 U.S. 907, 60 L. Ed. 2d 376, 99 S. Ct. 1998.) Proceedings under this Act are not intended to be a device by which issues that could have been raised and considered on the original appeal of a conviction can again be considered or by which issues that have in fact been considered on appeal from the original conviction can be relitigated. People v. Logan (1978), 72 Ill. 2d 358, 381 N.E.2d 264.

In his second petition for post-conviction relief, the defendant asked that his sentence be reduced because his codefendants who pled guilty received less severe sentences. This is the identical issue which was raised on direct appeal and rejected by this court. When an issue has been considered and rejected on direct appeal, any reconsideration of this issue in a post-conviction proceeding is barred by the doctrine of res judicata. (People v. Carter (1980), 85 Ill. App. 3d 818, 407 N.E.2d 584.) Thus, the trial court should have dismissed the defendant’s motion.

The defendant contends that the principle of fundamental fairness requires the affirmance of the trial court’s modification of his sentence. He argues that it was blatantly unfair for this court to refuse to modify his sentence on direct appeal while another division of this court reduced the defendants’ sentences in Carroll. The defendant suggests that the trial court sua sponte determined that such disparate treatment amounted to a constitutional violation.

We do not believe that there was any reason for the trial court to compare the sentences in Carroll and Utinans. Although both trials involved rapes by multiple defendants and were presided over by the same trial judge, the two cases involved unrelated criminal activity with different sets of facts. Differences existed between the two victims, such as their age, the amount of brutality and indignities they suffered, and the length of their ordeals. Furthermore, the trial court considered and the appellate court reviewed different evidence and information offered by the defendants in aggravation and mitigation. Because of these differences, we cannot say that the disparity in the results on appeal amounted to a violation of defendant’s constitutional rights.

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

Reversed.

McNAMARA and RIZZI, JJ., concur.

       One of these defendants was one of the defendants who pled guilty in the instant case.


text:
    JACK J. TWITTY, Plaintiff-Appellant, v. AMERICAN GAGE AND MACHINE CO. et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-1072
    Opinion filed March 31, 1982.

      Eugene I. Pavalon, of Asher, Goodstein, Pavalon, Gittler, Greenfield and Segall, Ltd., of Chicago (Geoffrey L. Gifford, of counsel), for appellant.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Mark A. Miller, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Jack J. Twitty, brought this product liability action against defendants American Gage and Machine Co. and Walsh Press & Die Co. Judgment was entered on a jury verdict in favor of defendants. We reverse and remand.

On September 27, 1974, plaintiff suffered severe injuries to his hand while operating a power press manufactured by defendant Walsh Press & Die Co., a division of defendant American Gage and Machine Co. In his complaint, he alleged that the power press was unreasonably dangerous due to a defective design. At trial, the court gave the jury defendants’ instruction No. 18 over plaintiff’s objection. The instruction, not in Illinois Pattern Jury Instructions (IPI), Civil (2d ed. 1971), states:

“The plaintiff must demonstrate that the power press as designed is incapable of preventing the injury complained of and that there existed an alternative design which would have prevented the injury.
There is no duty upon the manufacturer of the power press to manufacture the power press with a different design, if the different design is not feasible. Feasibility includes not only elements of economy, effectiveness and practicality, but also technological possibilities under the state of the manufacturing art at the time the product was produced.”

Plaintiff contends that the instruction erroneously altered his burden of proof by requiring him to prove that the power press as designed was incapable of preventing his injury. We agree.

In a product liability action, the plaintiff must prove three elements: (1) a condition of the product was a proximate cause of the plaintiff’s injury and damage; (2) the condition was unreasonably dangerous; and (3) the condition existed at the time the product left the defendant’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.) These elements do not change because the case is premised upon an alleged defective design or failure to warn rather than an alleged defective construction condition. (Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 324, 330, 412 N.E.2d 464, 465, 467.) Thus, in a product liability case based on an alleged defective design, if a plaintiff proves the stated three elements, absent any affirmative defenses, he is entitled to recover. It follows that a jury instruction which imposes an additional element of proof is erroneous and misleading.

Defendants rely upon McClellan v. Chicago Transit Authority (1975), 34 Ill. App. 3d 151, 340 N.E.2d 61. This case does support defendants’ argument. In McClellan, which did not involve an instruction issue but rather a question of whether summary judgment was properly granted, the court set forth a standard of proof necessary for strict liability cases based on defective design. The court stated that plaintiff must prove that (1) the product as designed is incapable of preventing the injury complained of; (2) there existed an alternative design which would have prevented the injury; and (3) in terms of cost, practicability and technological possibility the alternative design was feasible. 34 Ill. App. 3d 151, 152-53, 340 N.E.2d 61, 63.

In our view, the requirements of proof specified in McClellan are unjustified. To require the plaintiff to prove that the product as designed was incapable of preventing the injury would impose a burden that is not consonant with the doctrine of strict liability in product liability actions. Indeed, it would tend to resurrect the doctrine of negligence in product liability actions, which would be a regressive movement in the law of torts. See Lancaster v. Jeffrey Galion, Inc. (1979), 77 Ill. App. 3d 819, 824-25, 396 N.E.2d 648, 653-54.) Therefore, we are not willing to follow McClellan.

In the present case, in addition to defendants’ instruction No. 18, the trial court gave the jury the IPI instruction on burden of proof. (IPI Civil No. 400.03 (1977 Supp.).) That instruction states:

“The plaintiff has the burden of proving each of the following propositions as to any one of the design defects claimed by the plaintiff:
First, that the design defect claimed by the plaintiff as stated to you in these instructions existed in the power press;
Second, that the design defect made the power press unreasonably dangerous;
Third, that the design defect existed at the time the power press left the control of the defendant;
Fourth, that the plaintiff was injured;
Fifth, that the design defect of the power press was a proximate cause of plaintiff’s injuries.”

We believe that the above instruction properly and sufficiently informed the jury of plaintiff’s burden of proof. Thus, defendants’ instruction No. 18 should not have been given because it was unnecessary.

Defendants argue that the instruction was not improper merely because it is not an IPI instruction and that “other than its introductory sentence, the instruction now under attack is virtually verbatim with the instruction” approved by the supreme court in Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859. However, it is the introductory sentence which is the subject of dispute here. Therefore, defendants’ reliance upon Kerns is unavailing.

Defendants next contend that even if the instruction was erroneous, the judgment should not be reversed since any error could not have prejudicially altered the outcome of the case. However, the instruction effectively added an additional element to plaintiff’s burden of proof. This cannot be held to be harmless error.

Lastly, defendants suggest that since defendants’ instruction No. 18 was a separate instruction, as opposed to being incorporated in the burden-of-proof instruction, the error was harmless. This contention is untenable since a reading of the instruction leaves the jury with the impression that the plaintiff has an additional element to prove or else it confuses the jury. In either event, the error is not harmless.

Accordingly, the judgment is reversed, and the case is remanded for a new trial.

Reversed and remanded.

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

       The defect may be a construction condition (see Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182), design condition or a failure to adequately warn condition (see Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464).


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD A. BROWNSTEIN, Defendant-Appellant.
    First District (5th Division)
    No. 80-2084
    Opinion filed March 31, 1982.

      I. Bruce Wexler, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court;

Following a bench trial, defendant was convicted of possession of cocaine (Ill. Rev. Stat. 1977, ch. 56%, par. 1402(a)(2)); diazepam (Ill. Rev. Stat. 1977, ch. 56%, par. 1402(b)); codeine (Ill. Rev. Stat. 1977, ch. 56%, par. 1402(b)); and marijuana (Ill. Rev. Stat. 1977, ch. 56%, par. 704). He was sentenced to 6 years imprisonment for possession of cocaine, 5 years for possession of diazepam, 5 years for possession of codeine and 3 years for possession of marijuana, all to be served concurrently. On appeal, defendant asserts that (1) he was denied his right to a jury trial; (2) his conviction and sentence under count II and III are void because prior decisions have invalidated the statute on which these counts are based; (3) the legislature has improperly classified cocaine as a narcotic; (4) he was denied effective assistance of counsel; (5) he was not proven guilty beyond a reasonable doubt; and (6) his sentence was excessive for a person with no prior record. The pertinent facts follow.

Investigator Thomas Andricopoulos testified that on July 27,1978, he obtained a search warrant for defendant’s residence at 542 West Arlington. Christine Christopolous answered the door of defendant’s residence, whereupon he entered and locked the door. Shortly thereafter, defendant and Jack Kellman knocked at the door and they were asked to step inside. Defendant dropped a coat as he entered the apartment, which contained 13 white paper packets of a white powder and a clear plastic bag containing a white powder. Defendant admitted that the jacket contained the white paper packets, but denied that there was a clear plastic bag in the coat.

All three floors of the apartment were searched; and in a third-floor bedroom a clear plastic bag containing plants and seeds was recovered. Next to the desk in the same bedroom, police officers recovered from a briefcase a plastic bag of white powder and a number of pills. Defense counsel stipulated to the chain of custody and to the chemical identity of the substances recovered, to wit: 99.9 grams of cocaine, including the 13 paper packets, 188 grams of marijuana seeds and plants, 18 diazepam pills and two pills containing codeine.

Defendant testified that during the month of July 1978 he lived with Christine and another female at 542 West Arlington. He shared the third-floor bedroom with Christine, but others had easy access to the room as well because it was the only place in the house where there was a television. He admitted that he had 13 paper packets in his jacket but denied having a plastic bag on his person, and denied that he was aware that there was any contraband in the bedroom.

New counsel filed and argued post-trial motions, enumerating, among other errors, that defendant was denied his right to a jury trial. On July 17,1980, defendant filed a motion to reconsider denial of a new trial, in which he attached a transcript of the proceeding in which the State claimed he waived jury. The motion was considered by the trial judge on July 22, 1980, who did not rule on the motion, as he believed he had no jurisdiction since the notice of appeal was filed on July 18, 1980.

Opinion

Defendant initially contends he was denied his right to a jury trial. In support of this contention, defendant asserts that he was not advised of his right to a jury trial, did not sign a jury waiver, the report of the proceedings for May 28, 1980, does not affirmatively show an admonishment or waiver, and the common law record does not contain a signed jury waiver form; also with the motion for a new trial, trial counsel both filed affidavits in regard to the alleged jury waiver. The affidavits indicated that defendant did not sign a jury waiver form, that counsel did not waive jury in defendant’s presence and that at no time was defendant admonished as to his right to a jury trial.

“Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 6.) And the trial court must insure that defendant made a knowing and understanding waiver. (People v. Walton (1979), 77 Ill. App. 3d 905, 396 N.E.2d 841.) A trial without a jury cannot be upheld where the record is silent as to jury waiver. People v. Banks (1979), 71 Ill. App. 3d 15, 389 N.E.2d 180.

In this instance, the report of the proceedings for May 28, 1980, is silent as to defendant’s waiver; however, the common law record reflects that all parties were present, defendant entered his not guilty plea, was informed of his right to a jury trial and expressly waived that right. The trial judge at the post-trial hearing also stated that he had a personal recollection of defendant signing the jury waiver form. Thus, defendant’s contention that he did not understandingly waive his right to trial by jury is without a foundation, particularly in light of the fact that trial counsel did not call the trial court’s attention to this matter during trial.

An analogous situation was presented in People v. Rettig (1980), 88 Ill. App. 3d 888, 410 N.E.2d 1099, where the docket entry indicated that defendant waived jury, as did the trial court’s comment on the day of trial. We found that the record adequately reflected an express and understanding waiver, as we must do also in the case at bar. See also People v. Feather (1976), 42 Ill. App. 3d 974, 356 N.E.2d 885; People v. Karabatsos (1971), 131 III. App. 2d 33, 266 N.E.2d 764.

People v. Coleman (1978), 59 Ill. App. 3d 1050, 376 N.E.2d 277, relied on by defendant, is distinguishable from the case at bar. In Coleman, the report of proceedings made no reference to the jury waiver and the docket entry only stated “PLEA NOT GUILTY — JURY WAIVED.” We found this evidence insufficient to sustain a jury waiver. Unlike Coleman, the docket entry in the pending matter specifically reflects what occurred, as do the trial court’s comments.

Defendant also asserts that the trial judge cannot rely solely on his memory in making a correction of the record. (Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 348 N.E.2d 457.) Thus, the trial court’s comments on his jury waiver are impermissible as an addition or amendment to the record. However, the Hartgraves opinion left open the question of whether an amendment or addition to the record could be based on “clear memory,” when that clear memory did not contradict or impeach the clear contents of the record. In People v. Whitehead (1980), 87 Ill. App. 3d 885, 409 N.E.2d 358, defendant asserted that he never waived his right to a jury trial and the record was silent as to the waiver. The assistant State’s Attorney and the presiding trial judge both testified that defendant’s attorney waived jury in defendant’s presence. We held that the court could allow an amendment without some documentation in the record since the amendment supplied an omission in the record and did not impeach or contradict the contents thereof. In this instance, the trial judge’s comments do not contradict the record, but in fact support the docket entry regarding defendant’s waiver. While defendant’s trial counsel filed affidavits with their post-trial motion asserting otherwise, resolution of any conflicts in the evidence is the responsibility of the trier of fact, and we will not substitute our judgment for that of the trial court. (People v. Villalobos (1979), 78 Ill. App. 3d 6, 11-12, 396 N.E.2d 1081.) We believe that the trial court’s finding regarding defendant’s waiver is not against the manifest weight of the evidence.

Defendant next asserts that his conviction and sentence for possession of diazepam, a Schedule IV controlled substance, should be vacated as section 402(b) (Ill. Rev. Stat. 1977, ch. 5&A, par. 1402(b)) was found to be unconstitutional in People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096. Our supreme court upheld the unconstitutionality of section 402(b) as applied to Schedule IV controlled substances in People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029. The State has conceded this issue, and we are vacating the conviction and sentence on count II.

The third issue defendant raises is that his conviction and sentence under count III charging him with possession of codeine should be void in that section 402(b) of the statute is unconstitutional as applied to Schedule V substances. He charges that since the indictment did not mention the purity of the codeine, we must assume that the possession amounted to only a Schedule V controlled substance.

We point out that the flaw in defendant’s contention is that he presumes codeine is solely a Schedule V substance. Contrary to defendant’s contention, codeine is also classified as a Schedule II controlled substance under the Controlled Substances Act; and at the time of his arrest in July 1978, he could have been charged with illegal possession of codeine under Schedules II, III or V of the Act. The indictment did not state under which schedule of the Act that the charge fell. Defendant was convicted of possession under Schedule II. He acknowledges the constitutionality of the statute regarding Schedule II and III controlled substances (People v. Bradley), and he does not dispute that the substance found in his bedroom was codeine. We stated in People v. Jones (1981), 99 Ill. App. 3d 882, 425 N.E.2d 1279, that:

“When the legislature amended schedule II in September of 1977 to specifically include codeine, however, it made no requirements for proof of the presence of a specific proportion of codeine combined with another substance. Instead, under the present law it is sufficient that the State prove that the substance ‘contained codeine’ in order to fall within the meaning of schedule II.” (99 Ill. App. 3d 882, 888.)

The State met its burden of proof under Schedule II, and it became incumbent upon defendant to affirmatively assert that he came under Schedule V. Defendant also had the option of making a motion to quash or to make more definite count III. Having failed to take any of these appropriate steps, defendant cannot now assert that we must assume that the codeine possession charge came under Schedule V.

Defendant also asserts that his motion in arrest of judgment should have been granted where he was charged under a statute which unconstitutionally classified cocaine as a narcotic drug. He relies on People v. McCarty (1981), 93 Ill. App. 3d 898, 418 N.E.2d 26, which held that classification of cocaine as a narcotic was violative of the equal protection clause. Specifically, defendant asserts that he cannot be punished for possession of cocaine, a stimulant, with the same severity as possession of narcotic and addictive substances.

Our supreme court has subsequently reversed the ruling in People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147, holding that the legislature could define cocaine as a narcotic for purposes of statutory penalties despite scientific and medical opinion that it is not a narcotic. Thus, classification of cocaine as a Schedule II narcotic drug is a reasonable and constitutional classification. As such, defendant’s conviction for possession of cocaine is affirmed and his motion for arrest of judgment was properly denied.

Defendant’s fifth argument is that his trial counsel’s incompetence denied him his right to effective assistance of counsel. As examples, defendant cites that trial counsel made no pretrial motions to dismiss counts II and III, which were based upon a section of the Illinois Controlled Substances Act found to be unconstitutional more than a year prior to trial, counsel failed to enter a jury waiver or to make sure defendant was advised of his right to a jury trial, counsel’s motion to suppress the evidence seized pursuant to the search warrant had no coherent theory and did not attack the reliability of the informant, and counsel made no objection to defendant being sentenced to a Class 3 felony under counts II and III even though section 1402(b) had been revised to reflect a Class 4 felony. Defendant thus submits that the prejudice resulting from counsel’s incompetence caused him to be sentenced to five years each on two counts of the indictment, which do not state any criminal offense.

In People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084, we held that the standard for determining competency of counsel is whether counsel was actually incompetent and caused such substantial prejudice to defendant that the outcome was probably changed.

We have already vacated the conviction and sentence relating to count II based on People v. Bradley. Count III concerns the possession of codeine, which has withstood constitutional scrutiny in People v. Bradley and People v. Jones and clearly states a criminal offense. Further, the record belies the assertion of counsel’s incompetency. Errors in judgment or trial strategy do not establish incompetency. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Jackson (1981), 100 Ill. App. 3d 318, 426 N.E.2d 1132.) An examination of the record discloses that defendant received competent representation at trial, where his counsel thoroughly cross-examined prosecution witnesses, made numerous and vigorous objections at trial and demonstrated familiarity with the evidence and theories of the case in closing argument. Trial counsel’s competency must be measured by the totality of counsel’s conduct at trial. (People v. Murphy.) And, defendant is entitled to only competent, not perfect or successful, representation. (People v. Torres (1973), 54 Ill. 2d 384, 297 N.E.2d 142.) We are compelled to conclude on the record before us that defendant received competent representation.

Also raised as an issue is the State’s failure to prove constructive possession by defendant beyond a reasonable doubt. Defendant admitted that he possessed the 13 grams of cocaine found in his jacket but denied possession of any of the other cocaine and denied possession of the marijuana plants and seeds found on the nightstand of his third-floor bedroom.

To support a conviction for unlawful possession of a controlled substance, it is not necessary for the State to establish actual physical possession of the substance; rather, proof of constructive possession is sufficient to uphold the trial court’s decision. (People v. Curry (1981), 100 Ill. App. 3d 405, 426 N.E.2d 1118.) In People v. Nettles (1961), 23 Ill. 2d 306, 308-09, our supreme court stated:

“* ° ° that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt.”

The record in the instant case clearly reflects defendant leased and resided at the address in question and shared the bedroom with his girlfriend, where the other drugs were found. The fact that other persons had access to the apartment and bedroom is insufficient to defeat a charge of constructive possession. (People v. Luetkemeyer (1979), 74 Ill. App. 3d 708, 713, 393 N.E.2d 117.) Moreover, defendant walked into his own apartment carrying 13 packets of cocaine in his jacket. We believe the facts and circumstances in this instance support the inference that defendant exercised sufficient dominion and control over the narcotics found in his apartment to support his conviction.

Lastly, defendant argues that his sentence was excessive in that he had no prior criminal record. It is not the function of the appellate court to substitute its judgment for that of the trial court merely because it might have balanced the appropriate factors differently if the task of sentencing had been reserved to it. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Absent an abuse of discretion, a sentence will not be altered upon review. People v. Clay (1981), 98 Ill. App. 3d 534, 424 N.E.2d 814.

All of the sentences imposed upon defendant were well within the statutory limits for the offenses charged and were carefully considered before their imposition. We have already vacated the sentence imposed under count II of the indictment and do not find the remaining sentences to be excessive.

For the foregoing reasons, we must affirm the judgment of the trial court, with the exception of the conviction and sentence imposed under count II of the indictment, which is heretofore vacated.

Affirmed in part; vacated in part.

LORENZ and MEJDA, JJ., concur.

       At oral argument, counsel’s motion to supplement the record was allowed with a 10-day deadline. Counsel did not file the supplemental record within the 10-day period. Thus, particular references to this record cannot properly be considered.


author: JUSTICE MEJDA

text:
    JAMES ZAGEL, Director, Department of Law Enforcement, Plaintiff-Appellant, v. DALE A. NAGEL et al., Defendants-Appellees.
    First District (5th Division)
    No. 81-470
    Opinion filed March 31, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Karen Konieczny, Assistant Attorney General, of counsel), for appellant.
    Edward G. Coleman, of Springfield, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

The defendant, Department of Law Enforcement Merit Board (Merit Board), issued a final administrative decision that defendant trooper Dale A. Nagel be suspended for cause from duty as an Illinois State policeman, without pay or benefits, for a period of six months. Plaintiff, Director of the Department of Law Enforcement, filed a complaint for administrative review requesting the court to reverse the decision and order the discharge of defendant Nagel, or remand the decision to the Merit Board with instructions to order the discharge. The trial court affirmed the decision of the Merit Board. Plaintiff appeals. The sole issue presented is the propriety of the circuit court’s affirmance of the Merit Board’s decision.

On May 2, 1980, defendant Nagel was relieved of his duty as a trooper with the Illinois State Police pending discharge for allegedly transmitting reports of motorists’ violations, knowing that the violations had not been committed, and by forging the signatures of motorists to written warning tickets who then never received copies of the warnings. The Department of Law Enforcement (Department) initiated discharge proceedings and a full hearing was held before a hearing officer of the Department of Law Enforcement Merit Board, all pursuant to section 14 of “An Act in relation to the State Police” (Ill. Rev. Stat. 1979, ch. 121, par. 307.14). The Merit Board adopted in entirety the findings of fact and conclusions of law of the hearing officer. Those findings included that Nagel issued spurious warning tickets; signed the names of motorists to the tickets to whom he failed to deliver copies; transmitted the spurious warning tickets to his superiors, and refused to respond to questions put to him by his superior officers. The hearing officer also found that except for the loss of two regular days off in 1967 for failure to respond to a radio call, Nagel had never been admonished by the Department, and further, that at the time of the complained-of occurrences, Nagel was burdened by personal concerns which should be considered by the Merit Board in mitigation of punishment. The Merit Board suspended Nagel from duty for cause without pay or benefits for a period of 180 calendar days, the maximum suspension short of permanent discharge which could be imposed by the Merit Board. (Ill. Rev. Stat. 1979, ch. 121, par. 307.14.) Subsequently, the plaintiff sought administrative review of the Merit Board’s decision in the circuit court. The trial court affirmed the decision of the Merit Board.

Opinion

Plaintiff contends that Nagel’s misconduct mandates dismissal, and that the Merit Board’s imposition of suspension rather than discharge was arbitrary, capricious, unrelated to the requirements of the service, and contrary to the manifest weight of the evidence. He argues that a reviewing court can validly increase a suspension to a discharge and that any finding of mitigation is overwhelmingly contrary to the manifest weight of the evidence.

As recently set forth in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885, a court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process. First, the court must determine if the agency’s findings of fact, which are prima facie true and correct (Ill. Rev. Stat. 1979, ch. 110, par 274), are contrary to the manifest weight of the evidence.

Plaintiff contends here that the Merit Board’s finding of mitigating circumstances is contrary to the manifest weight of the evidence. Nagel testified that during the time period in question his mother had died, his son had wrecked three automobiles for which he had to pay, and his former wife had moved their remaining children to Florida. Plaintiff does not challenge the veracity of this evidence. However, plaintiff does argue that Nagel’s testimony that he felt pressured to meet a “motorist contact quota” allegedly imposed by his sergeant was dubious at best. Nonetheless, this testimony stood unrebutted. Therefore, the finding of the Merit Board that Nagel was burdened with personal concerns at the time of the complained-of occurrences is amply supported by the record and is not contrary to the manifest weight of the evidence.

The second step in the court’s administrative review analysis is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) Upon a finding of guilty, the Merit Board has the responsibility of ordering “either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the Board which, in the opinion of the members thereof, the offense merits.” (Ill. Rev. Stat. 1979, ch. 121, par. 307.14.) The question of whether cause for discharge exists is to be determined by the administrative agency, and therefore, its decision as to cause will not be reversed unless it is arbitrary, unreasonable or unrelated to the requirements of the service. Department of Mental Health & Developmental Disabilities; DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 202 N.E.2d 522.

Here, the Merit Board did not find cause to discharge Nagel but did find cause to suspend him. In rendering its decision the Merit Board recognized the seriousness of Nagel’s misconduct and included in its findings that the “disciplinary measures imposed must be of greater magnitude than the Board would ordinarily be inclined to impose.” Although plaintiff argues that imposition of suspension rather than discharge was arbitrary, unreasonable and unrelated to the needs of the service, it is clear that in the view of the Merit Board the imposition of the 180-day suspension without pay or benefits was a more stringent disciplinary measure than normally imposed. A review of the record discloses that the Merit Board imposed the punishment which, in the opinion of the members, the offense merited. Accordingly, we conclude that the Merit Board’s decision was not arbitrary, unreasonable nor unrelated to the requirements of the service, and did not become so, as plaintiff argues, because the Merit Board imposed the maximum suspension allowed by statute rather than discharge. Department of Mental Health & Developmental Disabilities.

For the reasons cited herein, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE ex rel. AL BERNARDI, Director, Illinois Department of Labor, Petitioner-Appellee, v. LAWRENCE & AHLMAN, INC., Respondent-Appellant.
    First District (3rd Division)
    No. 81-2992
    Opinion filed March 31, 1982.

      Fox and Grove, Chartered, of Chicago (Shayle P. Fox, Christopher A. Bloom, and Terry L. Stanke, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Richard J. Puchalski, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal is from an order of the circuit court of Cook County directing respondent Lawrence & Ahlman, Inc., to comply with an administrative subpoena issued by the Illinois Department of Labor commanding respondent to produce certain records.

On January 27,1981, the Department issued a subpoena to respondent commanding that it produce all records regarding two specific public work contracts. The subpoena was issued pursuant to the Department’s investigative powers under the Wages of Employees of Public Works Act (Ill. Rev. Stat. 1979, ch. 48, pars. 39s — 1 through 39s — 10). The act provides that a wage of no less than the general prevailing hourly rate be paid to laborers engaged in public works and authorizes the Department to “inquire diligently” as to any violation of the act. (Ill. Rev. Stat. 1979, ch. 48, pars. 39s — 6, 39s — 3.) The Department’s investigative powers include the authority to subpoena “records 006 and other evidence relative to the matter under investigation or hearing.” Ill. Rev. Stat. 1979, ch. 48, par. 39s — 10.

Respondent refused to comply voluntarily with the subpoena and, on August 25, 1981, the Department filed suit seeking judicial fenforcement. Respondent filed a motion to dismiss, alleging that the complaint failed to state a cause of action in that it lacked allegations of fact which would establish that the subpoena was lawfully issued. Respondent also filed a response setting forth specific facts from which it asked the court to decide that the Department issued the subpoena with improper motive for purposes of harassment and retaliation. Respondent requested a continuance and a rescheduling to permit discovery. The court denied respondent’s motions, finding that its sole duty was to enforce the subpoena so long as it was “not overbroad and burdensome.” The court found that respondent was entitled to neither discovery nor hearing on the harassment or retaliation issue, and it issued an order directing respondent to comply with the subpoena.

On appeal, respondent contends that the trial court erred in refusing to afford respondent a hearing on the issue of the validity of the subpoena. Respondent argues that the existence of the harassment and retaliation issue should have precluded summary enforcement of the subpoena.

The validity of an administrative subpoena is not dependent upon the existence of probable cause. (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 90 L. Ed. 616, 66 S. Ct. 494.) Judicial review of an administrative subpoena is generally limited to a consideration of the constitutionality of the statute, whether the contemplated agency proceedings are included within the statutory authority, the reasonableness of the demand, and the relevance of the information sought. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 224 N.E.2d 236.) Nevertheless, administrative investigations are also subject to due process constraints and a subpoena issued for the purpose of harassment violates due process. (Scott v. Association for Childbirth at Home, International.) Moreover, when the court’s process is invoked to enforce an invalid subpoena, an abuse of judicial process occurs. (United States v. Powell (1964), 379 U.S. 48,13 L. Ed. 2d 112, 85 S. Ct. 248.) Thus, when a prima facie case has been made challenging the legitimacy of the purpose behind the administrative subpoena, the court has a duty to resolve that issue prior to enforcement of the subpoena. A court may not permit its process to be abused. (United States v. Powell.) In the present case respondent’s allegations of harassment and retaliation sufficiently raised the issue of the subpoena’s validity so as to require the court to conduct a hearing.

Turning to the request by respondent that it be permitted discovery, we note that the trial court is vested with wide discretion in ruling on discovery matters, and limitations placed on discovery by the trial court will not be interfered with on appeal absent a manifest abuse of such discretion. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6; Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 368 N.E.2d 584.) In the present case, the trial court refused to exercise that discretion finding that discovery was not permitted by the statute.

Section 10 requires the trial court to compel compliance with any subpoena “lawfully issued” by the Department. (Ill. Rev. Stat. 1979, ch. 48, par. 39s — 10.) We find that respondent made a prima facie showing that the subpoena was not lawfully issued and that respondent is entitled to a hearing on the issue of harassment and retaliation. Hence, the trial court may find that some discovery, strictly limited to information relevant to respondent’s allegations of harassment of retaliation, should be allowed. We direct only that respondent’s request to take the depositions of two employees of the Department who are alleged to have taken part in the harassment should be granted. The depositions shall be subject to the foregoing limitations.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ., concur.