author: JUSTICE NASH

text:
    PARRY J. DAVIS, Plaintiff-Appellant, v. DR. JEROME S. WEISKOPF et al., Defendants.—(DR. NORMAN A. HAGMAN, Defendant-Appellee).
    Second District
    No. 81 — 944
    Opinion filed August 6, 1982.

      William T. Cacciatore and Anthony A. Savaiano, both of Rockford, for appellant.
    Robert K. Clark and Robert H. Clark, both of Rockford, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Parry J. Davis, appealed from the dismissal of his amended complaint for failure to state a cause of action for medical malpractice against defendant, Dr. Norman A. Hagman. The trial court determined as a matter of law there was no physician-patient relationship between plaintiff and defendant and, therefore, no cause of action for malpractice could arise.

Count V of plaintiff’s amended complaint alleged inter alia that on May 8, 1979, Dr. Jerome S. Weiskopf examined plaintiff in the emergency room of Rockford Memorial Hospital and Dr. Philip D. Brooks took X rays of plaintiff’s right knee and interpreted them; that Dr. Weiskopf was informed that the X rays revealed a giant cell lesion of plaintiff’s knee which was suspicious of a primary bone neoplasm of malignant origin; that Dr. Weiskopf then consulted with defendant, Dr. Hagman, regarding the X-ray results and referred plaintiff to him; that plaintiff was not advised of the X-ray results.

The complaint further alleged that plaintiff made an appointment to see Dr. Hagman, as he was instructed to do by Dr. Weiskopf, and appeared in Dr. Hagman’s office for the scheduled appointment; that Dr. Hagman rescheduled that appointment without seeing plaintiff; that when plaintiff telephoned the doctor’s office before his second appointment and advised the office he would be late, plaintiff was informed that Dr. Hagman would not treat him; and, that Dr. Hagman did not advise plaintiff of his physical condition or refer him to another physician after initially accepting the case from Dr. Weiskopf. The amended complaint further alleges that defendant was guilty of one or more negligent acts or omissions:

“(a) Failed to ever see Plaintiff concerning Plaintiff’s medical condition after Defendant agreed with the Defendant, DR. JEROME S. WEISKOPF, to see Plaintiff, when Defendant knew or should have known that Plaintiff’s right knee revealed a giant cell lesion which was suspicious for primary bone neoplasm of malignant origin of a serious nature.
(b) Failed to warn or inform Plaintiff that the radiology report of Plaintiff’s right knee revealed a giant cell lesion which was suspicious for primary bone neoplasm of malignant origin, when such serious condition was imminent, when Defendant accepted the medical care and treatment of Plaintiff pursuant to his consultation with Defendant, DR. JEROME S. WEISKOPF.
(c) Failed to properly instruct Plaintiff as to the urgency of follow-up medical care and treatment when Defendant knew or should have known of the serious and ominous condition of Plaintiff’s medical condition, when Defendant, accepted the medical care and treatment of Plaintiff pursuant to his consultation with Defendant, DR. JEROME S. WEISKOPF.
(d) Failed to refer Plaintiff to another physician or advise Plaintiff to obtain another physician for treatment when the Defendant had accepted Plaintiff’s case from the Defendant, DR. JEROME S. WEISKOPF.
(e) Failed to otherwise use due care in the diagnosis and treatment of Plaintiff’s right knee.”

The complaint concluded with allegations that as a proximate cause of defendant’s negligent acts or omissions, plaintiff’s leg was required to be amputated and he incurred substantial sums for hospital and medical costs, lost wages and was permanently injured.

Defendant’s motion to dismiss the complaint did not identify whether it was brought under section 45 or section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48). It alleged, inter alia, that (1) the amended complaint failed to state a cause of action; (2) that it failed to set forth facts upon which any legal liability of this defendant may be predicated; (3) that the complaint shows on its face Dr. Hagman never treated plaintiff or recommended medical care upon which a medical malpractice claim could be based; that the cause of action purports to be premised upon a duty arising from a physician-patient relationship and the complaint does not allege facts giving rise to that relationship or any duty on the part of the defendant based on tort of malpractice; (4) that the complaint alleges Dr. Jerome S. Weiskopf informed defendant of the X rays of plaintiff’s knee revealing a giant cell lesion suspicious of malignant origin and the complaint of negligence by Dr. Hagman is thus primarily based on the premise he did not inform plaintiff or refer him to another physician.

In support of his motion Dr. Hagman submitted his affidavit in which he stated he was not informed of the X-ray results and the only information he received concerning plaintiff was that Dr. Weiskopf was referring a patient who had some swelling of the knee, the cause of which Dr. Weiskopf was not sure. Defendant’s affidavit further stated that an appointment was made to see plaintiff on May 14, 1980, which plaintiff did not keep; that a second appointment for him was made May 25 and plaintiff failed to appear as scheduled and, as defendant had to go to the hospital for another appointment, he was not present when plaintiff arrived late; that plaintiff was rescheduled to be seen by defendant on May 31 and did not appear and, that no physician-patient relationship was established with plaintiff.

At the hearing on the motion to dismiss, defendant’s counsel described it as being under both section 45 and section 48 of the Civil Practice Act. After reviewing the pleadings, together with defendant’s affidavit, the trial court determined that no physician-patient relationship was established as a matter of law and dismissed the complaint.

Plaintiff contends that the complaint alleges facts which disclose a duty to Parry Davis on the part of defendant, its breach, and damages to him proximately caused thereby. Plaintiff also asserts that the trial court improperly considered defendant’s affidavit in support of the motion to dismiss. Defendant contends that as plaintiff never saw or was treated medically by defendant no consensual physician-patient relationship came into existence and, absent that relationship, no duty towards plaintiff existed upon which to base the cause of action.

We note initially that a motion to dismiss a pleading should clearly delineate the section of the Civil Practice Act under which it has been brought and may not properly be combined for a joint analysis and determination. (Galayda v. Penman (1980), 80 Ill. App. 3d 423, 424-25, 399 N.E.2d 656, 657, appeal denied (1980), 81 Ill. 2d 584; Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585, 325 N.E.2d 799, 808; Brewer v. Stovall (1977), 54 Ill. App. 3d 261, 266, 369 N.E.2d 365, 369.) It has been held to be error to bring a combined motion for dismissal under both sections 45 and 48, requiring reversal if prejudice results to the nonmovant. Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 1055, 401 N.E.2d 973, 978; see Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 405-06, 312 N.E.2d 605, 609.

Under section 45, a defendant may seek dismissal of a complaint for failure to state a cause of action and must therein specify why the pleading is legally insufficient. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) This motion admits all well-pleaded facts in the complaint and they must be taken as true. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449, 434 N.E.2d 476, 480; Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 1042, 404 N.E.2d 473, 475, appeal denied (1980), 81 Ill. 2d 590; Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 177, 360 N.E.2d 785, 789, appeal denied (1977), 66 Ill. 2d 63.) Factual defenses are not available under section 45; the court may consider only the allegations of the complaint and may not consider supporting affidavits offered by the movant. County of Cook v. Illinois Wine & Spirits Co. (1981), 93 Ill. App. 3d 710, 715-16, 417 N.E.2d 812, 816; Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585, 325 N.E.2d 799, 808.

Under section 48 a defendant may seek dismissal of an action because it is barred by affirmative matter which defeats the claim and may support the motion by facts stated in affidavits if the grounds do not appear on the face of the complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(i).) Generally, unless refuted by plaintiff’s counteraffidavit, the facts alleged in defendant’s affidavit must be taken as true. (Silverstein v. Schak (1982), 107 Ill. App. 3d 641, 437 N.E.2d 1292; D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 839, 347 N.E.2d 463, 465.) Motions to dismiss brought under sections 45 or 48 are both subject to the rule that they admit all well-pleaded facts in the complaint, but not conclusions unsupported by allegations of specific fact upon which such conclusions rest. Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 67-68, 401 N.E.2d 1235, 1240; appeal denied, (1980), 81 Ill. 2d 593; Smith v. St. Therese Hospital (1980), 87 Ill. App. 3d 782, 785, 410 N.E.2d 219, 222.

In this court, defendant treats his motion to dismiss as under section 48(1)(i) arguing that his affidavit, which was not countered by plaintiff, established there was no physician-patient relationship between them and, therefore, no duty of care to plaintiff could arise.

Defendant’s motion and affidavit, however, did not admit the facts as stated in the complaint but, instead, challenged them, offering his contrary version of the relationship between the parties. In our view, the motion did not present “affirmative matter” warranting dismissal under section 48(1)(i). (Austin View Civic Association v. City of Palos Heights .(1980), 85 Ill. App. 3d 89, 93, 405 N.E.2d 1256, 1261-62, appeal denied (1980), 81 Ill. 2d 589; Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585, 325 N.E.2d 799, 808.) In such circumstances a motion to dismiss will be considered under the rules governing section 45 rather than those governing section 48. (Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585, 325 N.E.2d 799, 808.) A motion for judgment on the pleadings presents the trial court with a question of law as to whether there is any issue of fact to be tried (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552-53, 359 N.E.2d 113, 117; Augustine v. Chauteau Homes, Inc. (1975), 26 Ill. App. 3d 203, 204, 324 N.E.2d 633, 634), and a case should not be dismissed on the pleadings unless it is clear that no set of facts could be proved which would entitle plaintiff to recover. Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 113, 395 N.E.2d 549, 551; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179,187, 380 N.E.2d 790, 794.

The parties agree that the Illinois reviewing courts have not considered either the circumstances under which a physician-patient relationship is formed or whether the duty of exercising reasonable care towards a particular party by a physician is premised upon that concept of privity between them.

Courts in other jurisdictions have considered similar issues reaching varying conclusions from the factual circumstances presented. Generally, they have considered that a physician’s duty of care arises only upon the creation of a physician-patient relationship, based upon contract, the existence of which is a prerequisite to an action for medical malpractice or negligence. See Podvin v. Eickhorst (1964), 373 Mich. 175, 128 N.W.2d 523; Easter v. Lexington Memorial Hospital, Inc. (1981), 303 N.C. 303, 278 S.E.2d 253; Lyons v. Grether (1977), 218 Va. 630, 239 S.E.2d 103; Fabian v. Matzko (1975), 236 Pa. Super. 267, 344 A.2d 569; Childs v. Weis (Tex. Civ. App. 1969), 440 S.W.2d 104; Oliver v. Brock (Ala. 1976), 342 So. 2d 1; Rainer v. Grossman (1973), 31 Cal. App. 3d 539, 107 Cal. Rptr. 469; Buckroyd v. Bunten (Iowa 1976), 237 N.W.2d 808.

Plaintiff argues defendant did in fact accept referral of his case and scheduled appointments which plaintiff kept, but then abandoned plaintiff without warning him as to his condition or referring him to another physician. (Martin v. Marks (1980), 80 Ill. App. 3d 915, 920, 400 N.E.2d 711, 714-15; Church v. Adler (1953), 350 Ill. App. 471, 113 N.E.2d 327.) Defendant asserts that as he never saw plaintiff, treated him or medically advised him no consensual physician-patient relationship came into existence and no duty of care to plaintiff arose. 2 J. Dooley, Modem Tort Law sec. 34.02 (1981 Cum. Supp.); Fure v. Sherman Hospital (1977), 55 Ill. App. 3d 572, 574, 371 N.E.2d 143, 144.

The recent case of Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, appears to be dispositve of the preliminary issue presented whether a physician’s duty of exercising reasonable care is solely dependent upon a physician-patient relationship with a party. There, the court considered the scope of the professional duty of a defendant attorney to plaintiff, a third party who was not defendant’s client. The court held that privity of contract is not a prerequisite to establishing a duty of care between a nonclient and an attorney in an action for legal malpractice, noting:

“A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) The determination of the duty — whether the defendant and the plaintiffs stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiffs — is an issue of law for the determination of the court. Mieher v. Brown (1973), 54 Ill. 2d 539; Prosser, Torts sec. 45, at 289 (4th ed. 1971).” (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E. 2d 96, 98.)

The court held that the lack of an attorney-client relationship between plaintiffs and defendant did not preclude a duty to plaintiffs as “privity is not an indispensable prerequisite to establishing a duty of care between a non-client and an attorney in a suit for legal malpractice.” (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 19, 440 N.E.2d 96, 99.) It found in Pelham, however, that the complaint was insufficient to establish a duty owed by the defendant attorney to the nonclient plaintiff for failure to allege that the intent of the client to benefit plaintiff was the primary purpose of the attorney-client relationship.

In the present case, however, as directed towards the question of duty, the complaint alleged defendant was a practicing physician who had accepted referral of plaintiff’s case from another doctor, after being advised plaintiff may be suffering from a serious illness, and that defendant declined to treat plaintiff without informing him of his condition or referring him to another physician for care, to his damage.

A determination of whether under the facts alleged a duty arose imposing an obligation on defendant for the benefit of plaintiff requires weighing the factors of foreseeability of subsequent occurrences, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant. (Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 706, 342 N.E.2d 468, 470-71; Prosser, Torts sec. 53, at 324-27 (4th ed. 1971).) To a physician alleged to have knowledge that the patient referred to him by another doctor may have a malignancy of the knee it would appear plaintiff’s subsequent injury was reasonably likely and foreseeable. The magnitude of the burden of guarding against such injury seems slight in these circumstances. A letter to plaintiff advising him of his condition and to consult with another physician without delay might well have been sufficient after defendant severed their relationship and declined to treat him. Placing a duty of reasonable conduct upon a physician who has agreed to see a patient referred to him by another physician for medical care, as alleged in the complaint, presents no difficult policy considerations. Surely both a referring physician and the patient would expect it as, ordinarily, would the physician to whom the patient was sent for medical attention. We do not consider this duty concept in such circumstances to be unusual or innovative. Whether defendant in this case violated his duty by any act or omission is, of course, not before us on this appeal.

In Ritchey v. West (1860), 23 Ill. 329, 330, it was held that “when a person assumes the profession of physician and surgeon, he must, in its exercise, be held to employ a reasonable amount of ciare and skill” commensurate with that ordinarily possessed by members of his profession. It has been recognized that where a physician - discharged his patient as cured when in fact further treatment was needed, a duty was breached giving rise to a cause of action in malpractice. (Prichard v. Moore (1898), 75 Ill. App. 553.) Illinois also recognizes the duty of a physician to ordinarily disclose to a patient a risk which was or should have been known to the physician. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 328, 431 N.E.2d 48, 53.) A physician’s duty of due care and diligence applies during the relationship of physician and patient and lack of diligence after assumption of the case renders the physician liable for malpractice. Smothers v. Butler (1979), 78 Ill. App. 3d 1018, 1023, 398 N.E.2d 12,16.

The cases to which we have referred relate to the duties of a physician which have been recognized in circumstances where actual treatment of or consultation with the patient had occurred. We can see no basis for a different rule under the unusual circumstances of the present case and conclude that the relationship between plaintiff and defendant was sufficient to impose a duty upon defendant to conform to the requisite standard of care in such cases. See, e.g., Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255, 381 N.E.2d 279, 282.

Accordingly, the judgment of the circuit court of Winnebago County is reversed and the cause remanded for father proceedings.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.

      Parry J. Davis died on September 26, 1981, and his administrator was substituted as plaintiff in the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    NORB J. KONCZAK, Plaintiff-Appellee, v. JOHNSON OUTBOARDS, Defendant-Appellant.
    Second District
    No. 81 — 913
    Opinion filed August 4, 1982.

      Joel A. Haber, Alvin D. Meyers, and Kenneth G. Anspach, all of Chatz, Berman, Margos, Haber & Pagel, of Chicago, for appellant.
    Harvey Melinger, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Johnson Outboards, a division of Outboard Marine Corporation (Johnson Outboards), appeals from the judgment of the Circuit Court of Lake County entered against it and in favor of the plaintiff, Norb J. Konczak, pursuant to section 19(g) of the Workmen’s Compensation Act (Act). (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g).) We affirm.

On July 25, 1977, Konczak was injured in the course of his employment with Johnson Outboards. Proceedings were initiated before the Illinois Industrial Commission (Commission) for benefits pursuant to the Act and one of the Commission’s arbitrators filed his decision regarding Konczak’s claim on November 30, 1979. The arbitrator’s decision provided, in pertinent part:

“That necessary first aid, medical, surgical and hospital services have been provided in part by the Respondent [Johnson Outboards] herein.
* * *
That said Petitioner [Konczak] is now entitled to have and receive from the Respondent *** the further sum of $6,824.57 for necessary medical, surgical and hospital services, as provided in paragraph (a) of Section 8.” (Emphasis added.)

On appeal, the Commission affirmed the arbitrator’s findings in a decision filed on April 8, 1981. The decision on reviw provided in pertinent part:

“The Commission affirms the decision of the Arbitrator based on the election of Respondent and Petitioner not to file a summary setting forth any claim of error in the Arbitrator’s decision. The Commission therefore concluded that the decision of the arbitrator herein is correct.
* * *
IT IS FURTHER ORDERED BY THE COMMISSION that the Respondent shall have credit for all amounts paid, if any, to or on behalf of the Petitioner on account of said accidental injury.” (Emphasis added.)

Neither of the parties petitioned the circuit court for a writ of certio-rari to the Commission for review of the foregoing decision as allowed by section 19(f)(1) of the Act. Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)(1).

Subsequently, on May 27, 1981, Konczak filed a petition for judgment pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g)) seeking the entry of a judgment against Johnson Outboards in the amount of the arbitrator’s award ($6,824.57) plus attorney fees and costs. Konczak’s petition alleged the existence of the award (accompanied by certified copies of both the arbitrator’s and Commission’s decision), the failure of the parties to appeal the award, proper notice pursuant to statute, the specific amounts claimed and the failure of Johnson Outboards to pay the award.

Johnson Outboards filed its answer and affirmative defense on July 24, 1981. While the answer admitted most of the allegations of Konczak’s petition, Johnson Outboards contended that it had paid the Commission’s award in full through payments made to Konczak from an insurance plan prior to the arbitrator’s decision. However, Johnson Outboards acknowledges that no payments were made on those medical expenses incorporated into the award subsequent to the entry of the arbitrator’s decision.

The parties filed cross-mptions for summary judgment. On October 23, 1981, the court entered judgment in favor of Konczak in the amount of $11,574.28 constituting the Commission’s award, attorney fees and costs. On appeal, Johnson Outboards contends that (1) Konc-zak’s failure to reply to its affirmative defense of payment is an admission of payment thus precluding summary judgment and (2) in any event, it should have been allowed the opportunity to prove payment as a defense to the section 19(g) proceeding and, accordingly, the summary judgment was improper.

Section 19(g) of the Act provides, in pertinent part:

“(g) Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall render a judgment in accordance therewith. In case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly rendered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g).)

In ruling upon section 19(g) petitions, the courts have long recognized that the purpose of the statute is to permit the speedy entry of judgment. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268, 383 N.E.2d 207, 211; Franklin v. Wellco Co. (1972), 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915, cert. denied (1973), 411 U.S. 932, 36 L. Ed. 2d 392, 93 S. Ct. 1901.) Accordingly, the court’s inquiry is limited to whether the requirements of the section have been met. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268, 383 N.E.2d 207, 211; McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 223, 118 N.E. 29, 32.) The court may not question the jurisdiction of the Commission or the legality of its actions. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268, 383 N.E.2d 207, 211; McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 223, 118 N.E. 29, 32.) Similarly, the court may not review the Commission’s decision or otherwise construe the statute even if the decision appears too large on its face. Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268, 383 N.E .2d 207, 211; St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 479, 135 N.E. 766, 767.

Thus, absent fraud or lack of jurisdiction, a party may not obtain review of the Commission’s award in the course of a section 19(g) proceeding. (Fico v. Industrial Com. (1933), 353 Ill. 74, 79, 186 N.E. 605, 607; Franklin v. Wellco Co. (1972), 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915, cert. denied (1973), 411 U.S. 932, 36 L. Ed. 2d 392, 93 S. Ct. 1901.) The exclusive means to contest the accuracy or validity of a Commission award is through a proceeding under section 19(f) of the Act. (Gerish v. Feldman (1943), 381 Ill. 635, 636, 46 N.E.2d 65, 66; St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 478, 135 N.E. 766, 768; Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f).) Absent such a review procedure, the decision of the arbitrator as adopted by the Commission is deemed “conclusive.” Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(b), (f).

It appears from the face of the record, that Konczak’s petition for judgment fully complied with the requirements of section 19(g). All of the necessary allegations and exhibits were contained in or attached to the petition. Johnson Outboards does not contend otherwise. However, Johnson Outboards argues that Konczak’s failure to reply to and deny its affirmative defense of payment is a binding admission which would preclude the entry of summary judgment.

It is well settled that payment is properly pleaded as an affirmative defense. (Department of Finance v. Schmidt (1940), 374 Ill. 351, 354, 29 N.E.2d 530, 532; Ill. Rev. Stat. 1979, ch. 110, par. 43(4).) Failure of a plaintiff to reply to new matters contained in such a defense may constitute an admission of said matters. (Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App. 2d 287, 290, 210 N.E.2d 614, 616; Ill. Rev. Stat. 1979, ch. 110, par. 40(2).) But, no such reply is required when the affirmative defense merely joins issue with the plaintiff. (Lois, Inc. v. Halvorsen (1971), 5 Ill. App. 3d 149, 151, 275 N.E.2d 172, 174.) In the instant case, the defense asserted by Johnson Outboards is merely an affirmative denial of Konczak’s allegations of nonpayment of the Commission award. As such, it does not assert any matters not arising out of the petition and therefore no reply was required.

In the alternative, Johnson Outboards contends that it should have the opportunity to prove payment to defeat the section 19(g) petition. Yet, Johnson Outboards acknowledges, and the record reflects, that no payments were made subsequent to the entry of the arbitrator’s decision for those medical expenses incorporated in the award. Clearly, it was the arbitrator’s duty to determine the gross amount of Konczak’s medical expenses less any credits for prior payments made by Johnson Outboards. (Board of Education v. Industrial Com. (1923), 308 Ill. 445, 449, 140 N.E. 39, 40.) This was, in fact, done by the arbitrator who found a current balance due Konczak of $6,824.57. This finding was affirmed by the Commission. Johnson Outboards never specifically contested the accuracy of the determination with the Commission nor did it seek review in the circuit court. Thus, although couched in terms of an affirmative defense, Johnson Outboards’ answer, in actuality, seeks to contest the amount that the arbitrator found to be currently due to Konczak. However, such a review of the arbitrator’s decision finds no place in a section 19(g) proceeding. City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99, 103, 345 N.E.2d 477, 479; Franklin v. Wellco Co. (1972), 5 Ill. App. 3d 731, 734, 283 N.E.2d 913, 915, cert. denied (1973), 411 U.S. 932, 36 L. Ed. 2d 392, 93 S. Ct. 1901; Gerish v. Feldman (1943), 381 Ill. 635, 46 N.E .2d 65, 66; St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 478, 135 N.E. 766, 767.

In City of Chicago v. Industrial Com., a finding of the arbitrator that no credit was due defendant, when not originally appealed would not be reviewed in an enforcement proceeding. In Franklin v. Wellco Co. the court refused to consider the Commission’s possible lack of jurisdiction in a section 19(g) proceeding where the original proceeding had not been reviewed. In Gerish v. Feldman, the court would not allow a commission award to be disputed under section 19(g) when no other appeal had been taken. Similarly, in St. Louis Pressed Steel Co. v. Schorr, the court in a section 19(g) proceeding properly refused to consider the propriety of an award which was too large on its face when that award had never been appealed.

Although Johnson Outboards cites many cases in support of its position, they are inapposite. In Board of Education v. Industrial Com. (1923), 308 Ill. 445, 140 N.E. 39, the Commission totally failed to calculate credit due to defendant as was its duty. Here, such calculations were made and any error should have been appealed. In W.M. Allen Son & Co. v. Industrial Com. (1932), 349 Ill. 71, 181 N.E. 625, the action was before the court on certiorari rather than section 19(g). McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 118 N.E. 29, considered post-adjudication payments rather than pre-adjudication payments and is inapplicable. Lastly, Westlund v. Kewanee Public Service Co. (1956), 11 Ill. App. -2d 10, 136 N.E.2d 263, dealt with credits in a civil personal injury action and has no bearing on a section 19(g) proceeding.

Accordingly, Johnson Outboards was not entitled to contest the accuracy of the arbitrator’s award in its answer to the section 19(g) petition. For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    HENRY ST. JOHN, Plaintiff-Appellant, v. THE CITY OF NAPERVILLE, Defendant-Appellee.
    Second District
    No. 81-787
    Opinion filed August 4, 1982.

      Robert A. Shipley and Brian Higgins, both of Copeland, Finn and Fieri, Ltd., of Chicago, for appellant.
    Marvin J. Clink, Katherine S. Janega, and George G. Davidson, all of Ancel, Clink, Diamond, Murphy & Cope, P. C., of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Henry St. John, appeals from a pretrial order granting judgment in favor of defendant, City of Naperville (Naperville). The only issue on appeal is whether the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) is applicable under the facts stipulated to in the case at bar.

The plaintiff’s fourth amended complaint- was brought in two counts alleging a cause of action in count I under the Illinois Structural Work Act and in count II under common law negligence against Naperville and other named defendants not parties to this appeal. Count I, the only count pertinent in this appeal, alleged that on the date of the occurrence Naperville provided the electric power for the development of a real estate housing development and subdivision; that plaintiff was in the employ of Utility Dynamics Corporation which was hired to do electrical line work on the subdivision in connection with its erection and construction; that as plaintiff was engaged in the repair of a power line and transformer and installation of a pedestal, he was “required” to grasp the power line which was charged thereby causing him severe injury; and that Naperville violated the provisions of the Structural Work Act in numerous respects including the wilful failure to provide a crane to assist the plaintiff in performance of his duties and the wilful failure to provide a scaffold where plaintiff could safely engage in the repair of the power line and transformer while in the course of his employment. Naperville filed a motion to dismiss under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48), stating that plaintiff alleged that he was injured when he grasped a certain power line, that there is no allegation in the fourth amended complaint,. that this occurrence involved the use of a scaffold, and that plaintiff’s discovery deposition indicated that he was standing in a ditch grasping the wire when the accident happened. The trial court heard arguments on this motion, at which time the plaintiff’s deposition was referred to and read from on several occasions. However, that deposition is not a part of the limited record on appeal provided to us. The parties also stipulated to certain facts as to how the plaintiff was injured. The court below reserved its ruling and indicated it would file a written opinion on the motion.

Subsequently, in a letter of opinion filed in this cause the trial court indicated that the section 48 motion actually was a section 57 (Ill. Rev. Stat. 1979, ch. 110, par 57) motion for summary judgment since it was based upon a stipulated set of facts gleaned from the plaintiff’s deposition. The letter of opinion set forth the following as stipulated facts:

“That on the day the plaintiff was injured he was employed as an electrician working on a power line located in a sub-division of Naperville. More specifically at the time he was standing in a ditch that was 3 feet deep and 8 inches wide. The purpose of the ditch was to act as the underground placement area for the electrical wire that he was holding in his hand at the time. The plaintiff mistakenly concluded that the wire, in question was not energized when in fact it was. While standing in this ditch a coworker cut the cable causing it to fly about and bum the plaintiff.”

The trial court found the Structural Work Act inapplicable to the facts stated and granted summary judgment in favor of Naperville. In a subsequent written order the court found no just reason to delay the enforcement or appeal of the order, and plaintiff has taken this interlocutory appeal pursuant to Supreme Court Rule 304(a) (91 Ill. 2d R. 304(a)).

In this appeal plaintiff has not taken exception to the trial court’s recitation of the stipulated facts contained in its letter of opinion or to the court’s treatment of Naperville’s section 48 motion as a summary judgment motion. Rather, the only issue raised by plaintiff is whether the Illinois Structural Work Act is applicable to the facts here. The plaintiff argues that the erection of new power lines is an integral part of the construction of the subdivision, that the ground level of the ditch plaintiff was working in provided the sole support for the plaintiff and was a scaffold, and that “[t]he defect existing in the electrical line structure was that the line being installed was energized, when it should not have been *** [which] was the direct and proximate cause of Mr. St. John’s injury.”

The issue of this appeal involves the applicability of section 1 of the Structural Work Act, which provides:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1979, ch.48, par. 60.

The Illinois Structural Work Act is designed to protect work activities of a particularly hazardous nature and to lessen the extent of the danger. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64; Crist v. Debron Corp. (1981), 96 Ill. App. 3d 668, 421 N.E.2d 997.) The Act should be given a liberal construction to effectuate its purpose of protecting persons engaged in extra-hazardous occupations of working in and about construction, repairing, alteration or removal of buildings, bridges, viaducts, and other structures. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573.) Nonetheless, the Act is not intended to cover any and all construction activities or all injuries at or near a construction site. Grafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817; Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051.

In an action brought under the Structural Work Act, it has been stated that the plaintiff must prove that: (1) he was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant wilfully violated the Act’s safety standard. Comment, The Illinois Structural Work Act, 1975 U. Ill. L.F. 393, 395.

The Act’s application is limited to the use of “scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances” in performing specified activities upon structures. (Long v. City of New Boston (1982), 91 Ill. 2d 456, 440 N.E.2d 625.) A decedent killed by the collapse of a trench in which he was installing sewer tiles in connection with town house units under construction was held to be working upon a sewer system “ ‘which we clearly conceive to be a “structure” under the Structural Work Act either considered by itself or as an integral part of the buildings being erected on a construction site.’ ” (Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 138-39, 290 N.E.2d 219.) On the other hand, in Allen v. Godar ( S.D. Ill. 1979), 476 F. Supp. 172, it was held that a worker killed while engaged in the clearing of a site in preparation for construction of a structure was not involved in a construction activity sufficient to impose liability under the Hlinois Structural Work Act. Under the allegations of the fourth amended complaint and the stipulated facts in the instant case, we find it difficult to determine precisely where the ditch plaintiff was working in was located in relation to construction in the development of the subdivision and at what stage the construction activity had progressed. Nevertheless, we will assume for the sake of argument that plaintiff was engaged in a structural activity and that the ditch he was working in was a scaffold, for we believe that the dispositive issue is whether the ditch which plaintiff claims is a scaffold proximately caused the injury to the plaintiff.

The operation of the scaffold or the failure to provide scaffolding must be the proximate cause of plaintiff’s injury. (See Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817; Frake v. Paschen Contractors, Inc. (1969), 113 Ill. App. 2d 403, 252 N.E.2d 14.) It is plaintiff’s contention that the ground in the ditch was being used as his means of support while he was engaged in his work. The use of a scaffold is not limited to certain areas of a structure nor by the fact that the work is being performed above or below ground (Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219); what is a scaffold is not limited to the identity of the object, but rather how it was being utilized at the time of the injury (Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 663, 418 N.E.2d 1011); and the failure to provide scaffolding can be the basis of a cause of action under the Act. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724.) Assuming arguendo that the ground in the ditch upon which plaintiff was standing was a scaffold (see Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051 (discussion of what may be a scaffold)), there is nothing in the record that a failure of the scaffold here proximately caused plaintiffs injury.

Although plaintiff’s pleadings generally allege the failure to provide a scaffold where he could safely work and the failure to provide a crane to assist him, the stipulated facts do not support these allegations nor attribute any defect in the ditch or its shoring which caused the accident. Additionally, in a portion of plaintiff’s deposition referred to in the transcript of the arguments on Naperville’s motion to dismiss, plaintiff stated that a scaffold was not necessary to perform the duties on the date in question.

Thus, the stipulated and undisputed facts are that while standing in a ditch plaintiff was injured when a co-worker cut an electrical wire “causing it to fly about and burn the plaintiff.” Clearly, plaintiff’s injury was not proximately caused by anything related to the failure of the alleged scaffold to function in a manner falling within the requirements of the Act. It is only when an injury has some connection with the hazardous nature of one of the devices named in section 1 of the Act that a cause of action may be maintained under that section of the Act. Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607.

The question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are not disputed and where there can be no difference in the judgment of reasonable men on the inferences to be drawn. (Wilson v. Illinois Bell Telephone Co. (1974), 19 Ill. App. 3d 47, 49, 310 N.E.2d 729.) Summary judgment may be proper where the material facts are not in dispute and the controversy is over the proper construction of the Structural Work Act and whether the facts sustain a cause of action. (Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 623, 427 N.E.2d 193.) As under the stipulated facts here the alleged scaffold had nothing to do with the injury caused to the plaintiff, the trial court’s order granting summary judgment for defendant will be affirmed.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    EVELYN COLEMAN, Ex’r of the Estate of Ida McCarty, Deceased, Plaintiff-Appellant, v. HINSDALE EMERGENCY MEDICAL CORPORATION et al., Defendants-Appellees.
    Second District
    No. 81 — 943
    Opinion filed August 4, 1982.
    Anthony F. Mannina, of Marco and Mannina, of Downers Grove, for appellant.
    Stanley J. Davidson, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, Alan M. Mullins, of Thomas, Wallace, Feehan and Baron, Ltd., of Joliet, and O’Reilly and Cunningham, of Wheaton, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The plaintiff appeals from an order dismissing her three-count, medical malpractice complaint on the ground that it was barred by the statute of limitations. Ill. Rev. Stat. 1979, ch. 83, pars. 15 and 22.1.

The plaintiff, Evelyn Coleman, as executor of the estate of Ida McCarty, filed an action on August 26, 1980, against the Hinsdale Sanitarium and Hospital. In her complaint she alleged that the negligent treatment of Ida McCarty by the defendant resulted in Ida McCarty’s death on May 18, 1978. The complaint also alleged that the plaintiff did not learn and could not have learned with reasonable diligence of defendant’s negligent actions until January 16, 1979. Finally, the plaintiff alleges that the action is brought under the authority of section 21.1 of “An Act in regard to limitations” (Ill. Rev. Stat. 1979, ch. 83, par. 22.1) (hereinafter referred to as the Limitations Act).

On January 12, 1981, plaintiff was granted leave to file an amended complaint. In this complaint, she joined the following defendants: Hinsdale Emergency Medical Corporation, Zednek Durek, DeWayne Butcher, Oldrich Free, and R. S. Callaghan. The amended complaint alleged that all of the defendants had given negligent medical treatment to plaintiff’s decedent. It further alleged that the action was brought pursuant to section 21.1 of the Limitations Act and that plaintiff did not learn, nor could she have learned with reasonable diligence, of the defendants’ negligence prior to Janaury 16, 1979. All of the defendants filed motions to dismiss plaintiff’s amended complaint on the ground that the complaint was barred by the statute pf limitations. All of the motions to dismiss seem to allege that because plaintiff discovered the alleged negligence of the defendants prior to the running of the two-year statute of limitations for personal injury actions contained in section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15), she could not invoke the discovery rule contained in section 21.1 to extend the time period in which to file her action.

On September 28, 1981, the trial court issued a memorandum of decision in which he dismissed plaintiff’s complaint against all defendants on the ground that section 21.1 was not applicable because plaintiff had discovered or was notified of the alleged negligence causing the injury several months prior to the running of the two-year statute of limitations set out in section 14. On October 30, 1981, the trial court entered an order dismissing the complaint as to all defendants. Notice of appeal was filed on Monday, November 30,1981.

The principle issue raised on appeal is whether the plaintiff, who discovered the possibility of the wrongful causation of the decedent’s death within the initial two-year period allowed by section 14 of the Limitations Act, may invoke the discovery rule of section 21.1 of the Limitations Act to extend the period of time in which to file her action. While this was the sole issue raised in the defendant’s motions to dismiss and the sole issue considered by the trial court, the defendant Hinsdale Sanitarium and Hospital raises several other grounds for justifying the dismissal of the complaint. These issues include: (1) whether the requirement of section 2(c) of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2(c)) that a wrongful death action be filed within two years of death is a condition precedent to bringing suit and is unaffected by any discovery rule; (2) whether the language of section 21.1 limits the filing period of two years after the discovery of death; and (3) whether the facts as pleaded in plaintiff’s complaint properly invoke the discovery rule as set out in section 21.1.

These three issues were not before the trial court when it ruled on the motion. Ordinarily, an issue not presented to the trial court cannot be raised for the first time on appeal; however, a corollary to this rule permits an appellee to defend a judgment on review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such point is contained in the record, and the points argued on appeal are commensurate with the issues presented to the trial court. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) We will, therefore, review the additional issues raised by Hinsdale Sanitarium and Hospital.

The defendants first contend that this suit is a wrongful death action and as such it is to be governed by section 2(c) of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2(c)), which provides that every death action shall be commenced within two years after the death of such person. The defendants argue that “Illinois courts consistently have held that the right of action for wrongful death is wholly statutory and that the provision in the statute creating the right that requires the action to be brought within the specified time is a condition attached to the right to sue and is not merely a statute of limitations.” (Country Mutual Insurance Co. v. National Bank (1969), 109 Ill. App. 2d 133, 139.) The defendants further assert that the statute alone is the source of the right to sue, and therefore should be strictly construed. (Wilson v. Tromly (1949), 404 Ill. 307, 310.) The defendants conclude because the plaintiff failed to file the suit within two years of decedent’s death, the plaintiff lost her right to sue.

The strict application of the two-year limitation on wrongful death action espoused in Wilson v. Tromly has lessened. In Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 73, the supreme court characterized this strict application of the act as a “much criticized concept stemming from questionable antecedents” and held that the two-year limitation period on a wrongful death action does not begin to run against minors until they reach majority. In Praznik v. Sport Aero, Inc. (1976), 42 Ill. App. 3d 330, the plaintiff’s decedents had been missing since March 1969 when they left for the Bahamas in one of the defendant’s aircrafts. Two years and eight months later the actual wreckage was discovered. The court held that the two-year limitation period did not begin to run until after the plaintiff had actually discovered the deaths and the wreckge of the aircraft. Finally, in Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App. 3d 983, the statutory period was tolled during the period of military service.

In addition to Praznik, two other cases could be found in which the court discussed the application of the discovery rule in wrongful death cases: Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259, and In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F.Supp, 1235.

In Fure v. Sherman Hospital, this court addressed the precise issue raised by the defendants. In that case, the plaintiff’s decedent, Duane Fure, became suddenly ill and was admitted to defendant hospital on January 13, 1973. After receiving treatment from the defendants, Mr. Fure’s condition worsened, and he expired on January 15, 1973. The plaintiff, Lynda Fure, alleged that she discovered that her husband’s death was caused by erroneous diagnosis and negligent treatment in the fall of 1975. Shortly thereafter, in November of 1975, almost three years after her husband’s death, she filed suit. The trial court dismissed her complaint on the ground that it was not brought within two years of the date of the death as required by section 2(c) of the Wrongful Death Act.

On appeal this court reversed the trial court’s dismissal. This court recognized that historically the two-year limitation for bringing an action under the Wrongful Death Act has been regarded as a condition precedent which is not to be modified or affected by the general statute of limitations. (64 Ill. App. 3d 259, 264.) The court then noted that the legislature can change and, on occasion, has changed the wrongful death statute and that the two-year period for bringing the suit is not beyond judicial construction. (64 Ill. App. 3d 259, 267.) After an in-depth review of cases that have allowed a tolling of the two-year period (i.e., Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58; Praznik v. Sport Aero, Inc. (1976), 42 Ill. App. 3d 330; Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App. 3d 983), as well as, treatises and articles on the wrongful death statute, this court stated that “there should be no barrier to the application of the ‘discovery’ rule based on the ultimate tragedy of death where the circumstances of the death would have permitted an extension of the time limitation for the mere wounding or injury of the person.” (64 Ill. App. 3d 259, 270.) This court concluded that the fact of death does not foreclose the use of the discovery doctrine.

Similarly, in In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235, the Federal district court held that the language in both Wilbon and Praznik, indicated that the discovery rule might well be applied in a wrongful death action. The court found the lengthy discussion in Pure to be persuasive and more direct authority to that'effect. The court also noted that the Illinois Supreme Court’s analysis in Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, seems to support extension of the discovery rule to -wrongful death claims in asbestosis litigation. The court then concluded that because it is highly likely that both the Illinois Supreme Court and the Illinois Appellate Court would apply the common law discovery rule to a plaintiff’s claim brought under the Wrongful Death Act, they would apply the rule to the asbestosis cases involving wrongful death. 511 F. Supp.1235,1239.

After examining these and'other cases, we also conclude that the discovery rule of section 21.1 of the Limitations Act should be applicable in an action brought under the Wrongful Death Act.

The defendant, Hinsdale Sanitarium and Hospital, next contends that the language of section 21.1 extends the time to file only until two years after the discovery of death and that plaintiff filed her claim more than two years after the date of death. Section 21.1 provides:

“No action for damages for injury or death against any physician or hospital *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury or death for which damages are sought ***.” (Ill. Rev. Stat. 1979, ch. 83, par. 22.1.)

The defendant, citing Greenock v. Rush Presbyterian St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266, contends that section 21.1 clearly and without exception states that no action for death can be brought more than two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the death.

In Greenock, the plaintiff’s decedent expired on April 11, 1973, and suit was filed on November 1, 1976. The trial court dismissed the complaint on the ground that it was filed beyond the two-year limitations period of the Wrongful Death Act. The plaintiff appealed contending that the discovery rule of section 21.1 extended the time to file until two years after he discovered that the death was wrongfully caused. The appellate court affirmed the dismissal, stating that under section 21.1 the claim was barred because Greenock filed suit more than two years after the discovery of the death. The court held that under the plain language of section 21.1 the event which commences the running of the statute is the claimant’s knowledge of the death and not the claimant’s knowledge of the wrongful causation of the death.

In Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259, however, this court went beyond the plain language of the statute and reached a different conclusion. Citing Roper v. Markle (1978), 59 Ill. App. 3d 706, the Fure court stated that section 21.1 cannot be read in a vacuum. (64 Ill. App. 3d 259, 266.) After discussing the holding in Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, the case which first applied the discovery rule to medical malpractice, the Fure court determined that the statute begins running not when a certain physical condition is known (i.e., injury or death), but when the plaintiff is aware of its wrongful causation. 64 Ill. App. 3d 259, 266; see also Roper v. Markle (1978), 59 Ill. App. 3d 706, 713.

Greenock and Fure are the only Illinois cases which apply the section 21.1 limitations provisions in a wrongful death case. These two cases approach section 21.1 differently and reach different conclusions as to what event starts the running of the section 21.1 two-year limitations period. In determining whether to follow Greenock or Fure, it is helpful to examine the approach and conclusion of the cases not involving wrongful death which discuss the event which triggers the running of the two-year period under section 21.1. Of these cases, the earlier cases (i.e., Ilardi v. Spaccapaniccia (1977), 53 Ill. App. 3d 933), seem to approach section 21.1 in the same manner as Greenock. Using a literal, plain-language interpretation of section 21.1, the courts in those cases held that the cause of action accrued as soon as the plaintiff knew of the injury, and not when the plaintiff learned or should have learned that the injury may be actionable.

However, later cases (i.e., Kaufman v. Taub (1980), 87 Ill. App. 3d 134; Roper v. Markle (1978), 59 Ill. App. 3d 706) have adopted an interpretation of section 21.1 which requires discovery not only of the injury, but also of its wrongful causation in order to trigger the running of the limitations period.

Recently, in Witherell v. Weimer (1981), 85 Ill. 2d 146, the Illinois Supreme Court interpreted the language of section 21.1. In Witherell the supreme court held that under section 21.1 the “statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” (Emphasis added.) (85 Ill. 2d 145, 156.) Because of the broad interpretation of the statutory language of section 21.1 with regard to the discovery of injury and wrongful causation, we continue to follow the Fure interpretation of section 21.1 which requires discovery not only of the death but also of its wrongful causation.

Hinsdale next contends on appeal that the plaintiff failed to plead sufficient facts to invoke section 21.1. Prior to the court’s dismissal of the complaint pursuant to section 48, the defendants failed to raise any issue concerning the sufficiency of the allegations. While, under Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, a reviewing court may affirm a judgment on any basis appearing in the record, even if the ground was not ruled upon by the trial court, “to do so on the basis of a correctable pleading defect would be unfair.” (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 533.) Therefore, any deficiency in the allegations of the dismissed pleading is considered waived. (Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1973), 16 Ill. App. 3d 638, 642, reversed on other grounds (1975), 61 Ill. 2d 6.) We hold that this issue has been waived.

Turning to the principal issue on appeal, we next' consider whether a plaintiff can successfully invoke the discovery rule of section 21.1 if the plaintiff learns of the death and the possibility of wrongful causation within the initial statutory period as allowed by section 14 of the Limitations Act.

When granting the motion to dismiss, the trial court in this case followed Evans v. Bachman (1979), 78 Ill. App. 3d 1107. (See also Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124.) In Evans the court stated that “where a plaintiff has learned of his injury within two years of its occurrence, the discovery rule is not applicable to extend the time for bringing an action.” (78 Ill. App. 3d 1107, 1110.) The Evans court, citing Dolce, further stated that the discovery rule is the exception to the traditional rule and is to be applied only when the discovery occurs after the original statute of limitations has run, or when the discovery occurs at a time so near the running of the original statute that for all practical reasons the case has been barred before a party has learned of the accrual. 78 Ill. App. 3d 1107, 1110; compare E. J. Korvette v. Esko Roofing Co. (1976), 38 Ill. App. 3d 905.

The Evans court placed considerable reliance on Dolce. We note, however, that Dolce was not interpreting the language of section 21.1, but rather interpreting the common law discovery rule. In reaching its conclusion, the Evans court did not consider the effect that the enactment of section 21.1 might have on Dolce, even though this section was in effect at the time Evans was decided.

Several recent cases, which do interpret and apply the language of section 21.1, have declined to follow the Evans holding. Sharpe v. Jackson Park Hospital (1981), 99 Ill. App. 3d 874, appeal allowed (1982), 88 Ill. 2d 555; Walsh v. Swedish Covenant Hospital (1981), 97 Ill. App. 3d 1147; Kaufman v. Taub (1980), 87 Ill. App. 3d 134.

In Sharpe, Walsh and Kaufman, as in the case at bar, the plaintiff discovered the wrongful causation after the allegedly negligent act but prior to the running of the section 14 statute of limitations. In all three cases, the defendants filed a motion to dismiss based on Evans and Dolce. The trial courts dismissed the complaints and were reversed on appeal.

These cases held that section 21.1 creates its own statute of limitations which assumes a discovery rule. (Walsh v. Swedish Covenant Hospital (1981), 97 Ill. App. 3d 1147, 1149-50.) The Walsh court distinguished Dolce by noting that under section 14, the plaintiff must file his action within two years from the time the“ ‘cause of action accrued,’ ” whereas under section 21.1 the limitations period is not measured from the time the action “ ‘accrued.’ ” The court held that the language of section 21.1 assumes a discovery rule and gives plaintiff two years from the time the plaintiff knew or should have known of the injury and its wrongful causation to file his action. (97 Ill. App. 3d 1147, 1150.) Similarly, in Kaufman v. Taub, the court stated that to “construe the two-year period as similarly running from the date of injury unless the harm is discovered outside the two-year period would controvert *** the explicit discovery rule contained in the statute ***.” 87 Ill. App. 3d 134, 140.

Although the supreme court has not yet spoken on this issue, in several recent cases, Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, Nolan v. Johns-Manville Asbestos. (1981), 85 Ill. 2d 161, and Witherell v. Weimer (1981), 85 Ill. 2d 146, the court has discussed the application of both the common law and the section 21.1 discovery rule. In all of those cases, the court discussed the discovery rule not so much as an extension of period of time to file, but rather as a rule which-determines when the statute should begin to run. In Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414, the court stated that the “effect of the discovery rule is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury.”

Similarly, in Witherell v. Weimer (1981), 85 Ill. 2d 146, 154-55, the court characterizes the discovery as the “triggering” of the statute of limitations. This approach to the discovery rule favors the holdings in Walsh, Kaufman and Sharpe.

Moreover, in Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, the supreme court further stated that “when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed.” (See also Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.) Both Nolan and Witherell, recognize that before filing a suit, the plaintiff has a duty to investigate the defendant’s behavior to determine if it amounts to an actionable wrong. The holdings in Kaufman, Sharpe and Walsh would give a plaintiff two years from the date of discovery to investigate whether the "wrongful causation was actionable. The holding in Evans, however, would give plaintiff only the remainder of the two years under section 14 of the statute of limitations.

We also note that in several other appellate cases in which dates of the discovery, the occurrence, and the filing were in the same sequence as in the case at bar, the court applied the section 21.1 statute of limitations, and yet this issue was not raised by the parties or by the courts. E.g., Bebee v. Fields (1979), 79 Ill. App. 3d 1009; Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929; Martinez v. Rosenzweig (1979), 70 Ill. App. 3d 155.

Our analysis of the various statutes of limitations and the case law leads us to conclude that the discovery rule as contained in section 21.1 is applicable in a wrongful death case. Moreover, in a wrongful death case, the plaintiff has two years after the discovery that the death was wrongfully caused in which to file her action, regardless of whether the discovery had occurred prior to the expiration of the traditional two-year period of section 14.

The trial court’s order dismissing the amended complaint is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    RICHARD B. CONNER et al., Plaintiffs-Appellees, v. FIRST NATIONAL BANK AND TRUST CO. OF ROCKFORD, Trustee, Defendant-Appellant.
    Second District
    No. 81 — 857
    Opinion filed August 11, 1982.
    Frank P. Maggio and Thomas D. Luchetti, both of Rockford, for appellant.

      Lawrence R. Kream, of Paddock, McGreevy & Johnson, of Rockford, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiffs, Richard B. Conner and Sally Garten, title holders to the subject real estate, sued the defendant, First National Bank and Trust Co. of Rockford, as trustee of Trust No. 4772, the holder of equitable title to the real estate under an installment purchase contract, to declare the contract forfeited and to secure possession. The basis of the action is an alleged breach of a clause in the contract permitting an increase in interest upon conveyance or assignment of the purchaser’s interest. The defendant appeals from a forcible entry and detainer judgment in favor of plaintiffs.

The essential question posed is whether the transfer from a prior trustee to the defendant trustee of the purchaser’s interest in a contract for deed constitutes a “conveyance or assignment” within the contract provision.

In the background of the controversy is the fact that in 1968 Robert and Sally Garten executed a mortgage to Bell Savings and Loan Association containing a due-on-sale clause with an interest rate of 6%% . In 1970 Conner Realtors Inc. entered into an installment contract to sell the subject real estate, improved with a two-apartment building, to Tennyson and Eleanor Phillips with interest at 7%. With the sellers’ knowledge and consent Phillips’ interest in the installment contract was assigned to the First National Bank of Belvidere, as trustee under its Trust No. 466, with Betty Brenner as the sole beneficiary. Thereafter plaintiffs dealt with Betty Brenner in connection with all matters under the contract. There is some dispute whether the interest rates were increased at this time, but it is undisputed that the monthly payments remained the same.

In 1978 the Belvidere Bank closed its trust department and notified the trust beneficiary, Brenner, that she was to arrange for another trustee. In 1979 the Belvidere Bank, as trustee, executed a “warranty deed” describing the subject property to the Rockford Bank, as trustee. In 1980 the Rockford Bank, as trustee, quitclaimed its interest to the Belvidere Bank, as trustee, which, on the same day, assigned its right, title and interest in the trust res to the Rockford Bank, as trustee. Brenner remained the sole beneficiary throughout and the provisions of the Belvidere Trust No. 466 and the Rockford Trust No. 4772 were the same.

The plaintiffs were not advised by Brenner and were unaware of the transfer from the one trustee to the other until February 6, 1981, when they received a letter from the Bell Savings and Loan. Bell had no knowledge of any dealings of the plaintiffs relating to the subject property subsequent to their mortgage but had been alerted to the contract sale by an endorsement of insurance showing the interest of the defendant. The letter stated that the transfer was prohibited without Bell’s written consent, but that Bell would give consent if plaintiffs would agree to a modification of the mortgage and note increasing the interest rate to 15%. Unable to make an agreement with Brenner, plaintiffs agreed to Bell’s demand, then sent a letter to-Brenner advising of the increase in the amount of the additional payment correspondingly due under the installment contract. Upon Brenner’s refusal to pay the increased amount these proceedings ensued.

The installment contract contains the following provision:

“(4) The' Purchaser, on behalf of himself, his successors and assigns, agree [sic] that in the event his interest shall be conveyed or assigned to any person or persons, firm, trust or corporation, other than the Purchaser or any one or more of them, ' then the Seller, after such transfer of right, title or interest shall be privileged to increase the annual rate of interest to be paid under the terms of this instrument. ***”

Upon analysis of the form of the transaction entered into by Brenner, it appears that there was no such conveyance or assignment of her interest as purchaser when Belvidere Trust No. 466 transferred her interest to Rockford Trust No. 4772 which would permit the increase in the interest rate pursuant to the above provision. The plaintiffs consented to the transfer of the interest of the Phillipses as the original contract purchasers to a trust of which, as plaintiffs knew, Brenner was the sole beneficiary. The subsequent transfer to the defendant as trustee was not for any advantage sought by Brenner, but was necessary because the first trustee had given up the trust business. The beneficiary, Brenner, remained the same after the transfer to the new trustee. Brenner was the same person known to be the assignee of the original contract purchasers and was continually dealt with as such by the plaintiffs. Read literally, the language of paragraph (4) might seem to support plaintiffs’ assertion that the vendee’s interest was transferred. However, it is a familiar rule that “courts of equity look to the substance rather than to the form of written instruments, and seek to discover and carry into effect the real intention of the parties, gleaned not only from the written instruments they executed but from their subsequent acts and conduct with reference thereto.” (Trapp v. Gordon (1937), 366 Ill. 102, Ill.) Here, the transfer of legal title to the vendee’s interest was insubstantial because the identity of the trustee makes no difference under these circumstances; Brenner remained the real party in interest throughout. The manner in which the plaintiffs dealt with Brenner compels the conclusion that there is no legitimate interest of the plaintiffs to be served by the increased interest provision of paragraph (4) of the contract based purely on the formal transfer of title to the vendee’s interest from one trustee to another.

We have no Illinois authority which is precisely on point. A close case factually is Fidelity Land Development Corp. v. Rieder & Sons Building & Development Co. (1977), 151 N.J. Super. 502, 377 A.2d 691. In Rieder, the court held that a “due on transfer” clause (which is not precisely the same as the increase in interest clause here, but involves similar analysis) was not triggered by a “mere paper transfer of title” from a corporation to the corporation’s principal stockholder. (151 N.J. Super. 502, 510, 377 A.2d 691, 695.) The court concluded that the parties to the note did not intend that this formal transfer be the occasion for acceleration since the parties acted in all ways as if the title were still being held by the corporation. Similarly, here, we conclude that paragraph (4) was not intended to include a mere formal transfer from one trustee to another, where the beneficiary remained the same, and was dealt with in the same way throughout.

Various other matters raised by the parties bear on this conclusion. The defendant has characterized the trust here involved as a “land trust” in arguing that the beneficiary is the real party in interest. (See People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 492.) An Illinois land trust is a particular device for holding title, both real and equitable, to real estate leaving nothing but a personal property interest in the beneficiary, with various consequences which have been stated in developed law. (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 487-88; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50.) Here, the trustee did not hold both legal and equitable title to the subject real estate but merely held title to the trust res. This was the installment contract and involved an equitable interest in the property with the real title remaining in the plaintiffs until the purchaser became entitled to a warranty deed. Nevertheless, the transaction, however characterized, was not a nullity and thus not a convey-anee at all as defendant argues. Generally, and with exceptions not here applicable, a contract purchaser becomes the equitable owner of real property upon execution of the installment contract. (Hinsdale Federal Savings & Loan Association v. Gary-Wheaton Bank (1981), 100 Ill. App. 3d 746, 748.) This equitable interest may be the subject of a trust. Burke v. Burke (1913), 259 Ill. 262, 268.

Viewed as the beneficiary of an ordinary trust, Brenner has equitable title to the trust res, i.e., the vendee’s interest in the contract, and the Rockford Bank, as trustee, has legal title to the trust res, the contract, as distinguished from the legal title to the real estate which is held by the plaintiffs. This does not change our basic conclusion that Brenner, as beneficiary of the trust, was, and remained, the real purchaser. In this connection it should be noted that the trustee had no active duties or obligations with regard to the contract. Brenner, the beneficiary, retained control over performance of the contract and retained full responsibility for making payments and performing all other obligations. Further, the plaintiffs dealt with Brenner as though she had full title to the vendee’s interest, and it is difficult to imagine how the parties’ conduct in performing their respective obligations would have been at all different had Brenner been an ordinary vendee and not used the trust form. Reinforcing this conclusion is the fact that the transfer to the defendant trust was not for any consideration.

Although unnecessary in view of our conclusion that the increase in interest clause was not intended to apply to the particular circumstances of this case, we will deal briefly with defendant’s contentions that equitable defenses have been shown and also that paragraph (4) is void as against public policy. Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119,126.

Plaintiffs’ failure to notify Bell of the initial sale to the Phillipses was not inequitable conduct towards the defendant upon which it could claim reliance (Leaf v. Barton (1980), 91 Ill. App. 3d 373, 375), and no waiver or estoppel has been shown on this record.

We also have rejected defendant’s argument that paragraph (4) of the contract is void. The defendant has not argued that due-on-sale clauses or equivalent clauses accelerating obligations under contracts on the' happening of specified events are invalid. Those clauses, Of course, may be valid contractual provisions. (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 124-25; Damen Savings & Loan Association v. Heritage Standard Bank (1982), 103 Ill. App. 3d 301, 302-03.) Defendant’s argument, instead, is that paragraph (4) of the installment contract is void for the reason that it allows a contract seller to increase contractual interest rates “without limitation and with no ascertainable measure of determination.” The defendant’s reliance on the interest statute in this regard is unfounded.

Unless allowed by Federal law, no mortgage or contract secured by residential real estate may provide for a change in the interest rate during the term of the mortgage or contract. (Ill. Rev. Stat., 1980 Supp., ch. 74, par. 4(2)(d).) Business loans are exempted from this statutory regulation. (Ill. Rev. Stat., 1980 Supp., ch. 74, par. 4(1)(c).) Defendant concedes that the property here is business property and that the statute does not apply to this case, but argues that the statute creates a general “public policy” requiring definiteness in contractual rates of interest.

Defendant cites no authority indicating the existence of such a “public policy,” nor any cases invalidating contractual provision such as the one at issue here. Moreover, section 4(2)(d), upon which defendant relies, was not in effect when the contract was executed. Finally, the argument that the statute’s “public policy” controls a transaction which is specifically exempted from the reach of the act itself is illogical; it is more reasonable to take the inapplicability of the statute to business loans as an indication that “public policy” does not require that business loans be regulated as closely as loans involving residential property. We will not, therefore, hold that the increased-interest clause in the contract is necessarily invalid, but only that, as discussed above, it has not been triggered here.

The judgment of the circuit court of the Seventeenth Judicial Circuit is reversed.

Reversed.

LINDBERG and HOPF, JJ., concur.

       Although the record is not clear as to the source of the interest of “Conner Realtors Inc.” in the property, apparently Robert Garten is deceased and plaintiffs are his executors.


author: JUSTICE STOUDER JUSTICE HEIPLE, PRESIDING JUSTICE BARRY,

text:
    THE CITY OF PEORIA, Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.
    Third District
    No. 81 — 539
    Opinion filed August 17, 1982.
    HEIPLE, J., specially concurring.
    BARRY, P. J., dissenting.
    David L. Thomas and James A. Murphy, both of Peoria, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (E. King Poor, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County dismissing the appeal of the City of Peoria from an order of the Illinois Commerce Commission. The judgment of the trial court held the notice of appeal was untimely filed.

In its motion to dismiss the appeal the Commission argued that the provisions of section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 72) governing review were not followed in two respects. First, notice of the appeal which was given to the Commission, although mailed within 30 days of the Commission order, was not received by the Commission until after 30 days of such order and second, the notice of appeal filed in the circuit court was not filed within 30 days from the order and in fact filed with the court on the 34th day after such order.

On December 27, 1979, the Illinois Commerce Commission issued its General Order 207 dealing with emergency telephone number 911. The City of Peoria petitioned for rehearing or reconsideration, which petition was granted. Notice and a copy of the “ORDER ON RECONSIDERATION” was mailed to the attorneys for the City of Peoria on July 23, 1980.

On August 22, 1980, “NOTICE OF APPEAL” together with proof of service was deposited in the United States mail with postage prepaid and addressed to the secretary of the Illinois Commerce Commission. Said notice was file stamped by the Illinois Commerce Commission August 25, 1980. A copy of the notice of appeal and proof of service were filed with the circuit clerk by the City of Peoria on August 26,1980.

The procedures for reviewing a decision of the Illinois Commerce Commission are found in section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 72). Such section provides initially that within 30 days any person or corporation affected by a rule or order of the Commission may appeal to the circuit court of the county in which the subject matter of the order is located. Further, the section provides the party seeking review shall serve a notice of appeal on the Commission and, finally, the party seeking review shall file a copy of the notice of appeal together with proof of service on the Commission in the circuit court within five days from service of notice on the Commission.

The issues as disclosed by the motion to dismiss the appeal and presented on this appeal are based on the Commission’s allegation the City neither served a notice of the appeal on the Commission within 30 days of the decision nor filed a notice of appeal in the circuit court within 30 days from the decision. The factual basis underlying the dispute is uncontradicted. With respect to the first, the City mailed the notice of appeal to the secretary of the Commission on the 30th day following the decision, but the notice was not received by the Commission until more than 30 days had elapsed from the date of the decision. With respect to the second reason from dismissing the appeal in the trial court, the notice of appeal was not filed in the trial court until the 34th day following the decision although this filing date was within five days from the date the notice of appeal was mailed to the Commission. In dismissing the appeal the court did not specify its reasons for its judgment, and the parties have considered the trial court found in favor of the Commission on both contentions.

Since the briefs were filed in this case but before oral argument, the case of Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 431 N.E.2d 441, was decided. In the Baltimore & Ohio case the court held notices required to be given under the Public Utilities Act could be given by mail and would be deemed to have been given on the date they were deposited in the mail. In the Baltimore & Ohio case notices of appeal were mailed both to the Commission and to the circuit court within 30 days of the Commission’s decision. However, the notice was received by the Commission on the 30th day and by the court on the 31st day after the decision. Since the notice of appeal was mailed to the circuit court within the appropriate time it was deemed filed on the date of mailing and declared to have been filed within the 30-day period. On the authority of the Baltimore & Ohio case and the Commission’s own rules we believe that in the instant case the notice of appeal mailed to the Commission on the 30th day following the decision should be considered as having been filed with the Commission on that date even though received several days later. In fact the Commission offers little reason for not following its own rules and the Baltimore & Ohio decision so far as the mailing of notice to it is concerned.

Proceeding to consider then the question of whether filing of the notice of appeal with the circuit court on the 34th day following the decision is in accord with the statute we are presented with a different question. The notice which was filed with the circuit court was actually filed on the 34th day following the decision and was not mailed earlier. Thus it does not come within the terms of the Baltimore & Ohio case since no mailing was involved and no date of filing other than the actual date of delivery to the clerk’s office is of any concern.

However, in Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App. 3d 85, 379 N.E.2d 42, the precise issue was raised and determined adversely to the position of the appellant City in the instant case. In Hoffman the court held the provision regarding filing notice of appeal with the circuit court within five days from service of notice of appeal on the Commission did not extend the 30-day period for perfecting the appeal to the circuit court. The City in the instant case has directed our attention to the dissenting opinion in Hoffman but we are persuaded to follow and do hereby adhere to the opinion of the majority in Hoffman.

Finally, in summary, although we believe the City did properly notify the Commission by mail, we hold it failed to properly perfect its appeal by filing its notice of appeal with the clerk of the circuit court within 30 days as required by statute.

For the foregoing reasons the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

JUSTICE HEIPLE,

specially concurring:

In this case, the City of Peoria wanted to appeal an order of the Illinois’Commerce Commission to the Peoria Circuit Court. To accomplish this appeal, the City mailed a notice of appeal to the Commission on the 30th day. This notice was received by the Commission three days later. On the 34th day from the entry of the order, a copy of the notice of appeal was filed with the Peoria circuit clerk. The majority opinion concludes that the appeal was not perfected in a timely manner.

The City argues that the statute which requires the filing of the notice with the circuit clerk within five days of the filing of the notice with the Commission extends the ultimate filing time from 30 to 35 days. I agree with the majority that the 30-day period is not thereby extended.

I further concur with the result reached which affirms the trial court’s dismissal of the appeal. Because of language in the majority opinion, however, and because of its reliance on the cases of Department of Conservation v. Baltimore & Ohio R.R. Co. and Hoffman v. Illinois Commerce Com., I believe that clarification is needed regarding the jurisdictional issue of perfecting an appeal. An analysis of the majority opinion along with the cases cited would cause one to believe that the mailing of a notice of appeal to the court within the 30-day period is sufficient without regard to when that notice of appeal actually reaches the office of the clerk of the court. I believe that to be an erroneous proposition of law.

The statute provides that a party may appeal to the circuit court within 30 days. The appeal is not perfected by mailing unless the mailed item arrives at the circuit clerk’s office within the 30-day period. There is no statutory language that would authorize a mail notice in lieu of an actual filing. Rules of the Illinois Commerce Commission which authorize service of papers by mail cannot confer jurisdiction on the court. In the case at hand, the majority opinion would approve of a mailing to the court within 30 days and without regard to when that notice is actually received by the court. To that extent, I disagree with my colleagues. Since the majority opinion finds that the appeal was not perfected, however, I concur with the result reached.

PRESIDING JUSTICE BARRY,

dissenting:

I cannot agree that the City of Peoria failed to perfect its appeal in a timely manner, and I must therefore, respectfully dissent.

An appeal from a decision of the Illinois Commerce Commission to the circuit court begins by filing a notice of appeal with the Commission in the same way that an appeal from a judgment of the circuit court to the appellate court begins by filing a notice of appeal with the clerk of the circuit court. (Compare Ill. Rev. Stat. 1979, ch. 1112/3, par. 72, with 73 Ill. 2d R. 303(a).) Both statutes allow 30 days for the notice of appeal to be filed, and under both provisions, the Illinois appellate courts have held that the mailing of a notice of appeal within the 30-day period is sufficient to perfect the appeal, regardless of the date the notice is received. (Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App. 3d 39, 42, 432 N.E.2d 645, 649 (section 1.25 of the construction-of-statutes act (Ill. Rev. Stat. 1979, ch. 1, par. 1026) “evince[s] a general policy to equate filing with mailing”); Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 431 N.E.2d 441.) So, Justice Stouder correctly holds that the notice of appeal is considered to have been filed with the Commission within, the réquired 30 days since it was mailed to the Commission with 30 days. See, e.g., Alton v. Byerly Aviation, Inc. (1977), 68 Ill. 2d 19, 368 N.E.2d 922 (relying on section 1.25 of the construction-of-statutes act, court held that evidence of mailing notice to Industrial Commission within statutory period was sufficient to comply with filing requirement of section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)).

Section 68 of the Public Utilities Act contains an additional requirement that the party seeking review must, within five days of serving notice upon the Commission, file a copy of the notice of appeal with the clerk of the court to which the appeal is taken, and the Commission must, within five days of the filing of the notice, file with the clerk of the circuit court a copy of the order appealed from. Such appeals are to be tried “according to the rules governing other civil cases, so far as the same are applicable.”

Under Supreme Court Rule 303 governing civil appeals, within five days after the filing of the notice of appeal, the circuit clerk must transmit a copy of the notice to the reviewing court, and within 14 days after filing the notice of appeal, the appellant must file a docketing statement in the reviewing court. (73 Ill. 2d R. 303(a), (g).) These provisions are similar to the five-day provisions of section 68 of the Public Utilities Act. The purpose of the requirement that a copy of the notice of appeal be filed in the appellate court has been said-to be, in part, “to afford the appellate courts greater authority to supervise the progress of an appeal ***.” (Ill. Ann. Stat., ch. 110A, par. 303, Historical and Practice Notes, at 323 (Smith-Hurd Supp. 1981).) It is well established the only action required to give the appellate court jurisdiction of an appeal is the timely filing of the notice of appeal in the circuit court. (Theobault-Olson Co. v. Petta (1972), 6 Ill. App. 3d 537, 286 N.E.2d 163.) Thus, the filing of a copy in the appellate court is not a prerequisite to the appellate court’s acquisition of jurisdiction. Similarly, there is no logical reason to hold that the filing of a certified copy of the notice of appeal with the circuit clerk is an essential element of appellate jurisdiction in an appeal from the Commission. The purpose of the requirement is merely to apprise the circuit court that an appeal from the Commission has been commenced. Applying the rules governing civil appeals, I would hold that the circuit court acquired jurisdiction of the City’s appeal as soon as the notice of appeal was timely filed.

In any event, there is no reason for this court to shorten the 30-day period for filing the notice of appeal by reading into section 68 a requirement that the copy of the notice must be filed with the circuit clerk within the 30-day period. The statute plainly says that the copy must be filed within five days after the notice of appeal is filed. (See Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 422, 431 N.E.2d 441, 445; Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App. 3d 85, 88, 379 N.E.2d 42, 44 (dissent).) I believe this language should be interpreted to mean what it says instead of what it does not say. Thus, I would hold that the City had five additional days to file the copy, and that the appeal should not have been dismissed.