author: JUSTICE WEBBER

text:
    MARY E. WILLIAMSON, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0776.
    Opinion filed June 29, 1984.

      Gillespie, Cadigan & Gillespie, of Springfield (Robert E. Gillespie, Susan M. Hickman, and T. Jeannine Garrett, of counsel), for appellants.
    Robert G. Heckenkamp, of Heckenkamp & Simhauser, EC., of Springfield, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, Mary Williamson, brought suit for injuries sustained as a result of being struck by a motor vehicle operated by defendant, Thomas Marvel, as an agent of defendant, city of Springfield. The jury returned a verdict in favor of defendants, finding that they had committed no acts of negligence constituting a proximate cause of plaintiff’s injuries. The trial court granted plaintiff’s motion for a new trial, ruling that the verdict was against the manifest weight of the evidence. The court also found that two comments made by defense counsel during closing argument were so prejudicial as to deny plaintiff a fair trial. Defendants appeal from this order pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306). We affirm.

On June 25, 1982, plaintiff was struck by an automobile driven by defendant, Marvel, as she crossed Sangamon Avenue near its intersection with Cahokia Drive in the city of Springfield, Illinois. Marvel was employed as a field commander with the Springfield police department. On the date of the accident, it was his duty to supervise officers assigned to control traffic generated by a car craft show that had begun at the Illinois State fairgrounds. Marvel was driving a city police car westbound on Sangamon Avenue. He struck the plaintiff as he approached its intersection with Cahokia Drive.

At the point where the accident occurred, Sangamon Avenue is a flat, straight, two-lane roadway, running east and west. Cahokia Drive is not a through street; it forms a T-intersection with Sangamon Avenue and leads north to a residential area known as Indian Hills subdivision. There were no traffic control devices at the intersection. Neither were there any marked crosswalks; however, it was established that pedestrians did cross Sangamon Avenue at the intersection from a driveway located at 2328 Sangamon Avenue.

On the morning of June 25, 1982, plaintiff, an 82-year-old woman, walked to a beauty shop located on 24th Street, south of Sangamon Avenue. Plaintiff’s home was on Cahokia Drive and she proceeded to the driveway at 2328 Sangamon Avenue where she waited for traffic to clear so that she could walk across the street. Rebecca Dilley, who was standing in her yard at the corner of Sangamon Avenue and North 24th Street, was an eyewitness to the occurrence. She estimated that plaintiff watched traffic for approximately 10 minutes before she started across Sangamon Avenue. Once she entered the street, Dilley testified that plaintiff did not again check for traffic. When she was nearly across the westbound lane, plaintiff was struck by the vehicle driven by Marvel. She was thrown several feet into the air and landed upon the hood of Marvel’s car. Her body caused sizable dents in both the front of the car and on the back of the hood, near the windshield, where she landed. Dilley was the first person at the scene. She testified that when Marvel exited his car, he said to her three times: “Becky, I didn’t see her.” On one occasion, the statement was overheard by Dilley’s husband, Officer Robert Dilley. Officer Dil-ley rendered assistance to the plaintiff and called emergency vehicles to the scene on a hand-held radio.

At the time of the occurrence the traffic on Sangamon Avenue was heavy. The witnesses who testified concerning the speed of the traffic agreed that it was going about 20 to 25 miles per hour. The car driven by Marvel stopped almost immediately after impact. Marvel contended that he was traveling only 20 miles per hour prior to the accident. He claimed that he first saw the plaintiff when she was about 30 feet away. However, it was established that there were no trees or shrubbery at or near the intersection which would have blocked his view of plaintiff. Marvel testified that he slammed on his brakes but was unable to stop in time. He estimated that he was traveling only five miles per hour at the time of impact.

The jury returned a verdict in favor of both defendants and against the plaintiff. Judgment was entered on the jury’s verdict. The trial court, however, granted plaintiff’s post-trial motion and ordered a new trial.

Defendants argue that the court erred in setting aside the jury’s verdict. Defendants also contend that any impropriety in defense counsel’s closing remarks to the jury did not warrant the granting of a new trial.

The jury in this case was instructed on the law of comparative negligence. Defendants complain that the trial court, when granting the plaintiff's motion for a new trial, improperly determined that Marvel must have been responsible for plaintiff’s injuries to some degree. Relying on cases from other jurisdictions, defendants argue that the apportionment of negligence in comparative negligence cases is a matter within the province of the jury and should be overturned by a reviewing court only when the apportionment is manifestly against the weight of the evidence. (See Jagmin v. Simonds Abrasive Co. (1973), 61 Wis. 2d 60, 211 N.W.2d 810; Bourassa v. Gateway Erectors, Inc. (1972), 54 Wis. 2d 176, 194 N.W.2d 602.) In this case, defendants urge that the verdict of the jury was supported by the evidence.

The case of Coleman v. Hermann (1983), 116 Ill. App. 3d 448, 452 N.E.2d 620, is cited by defendants as analogous. In Coleman, the plaintiff brought suit to recover damages for personal injuries sustained in a pedestrian-automobile accident. The accident occurred on a flat, two-lane highway during early evening. As the plaintiff was driving in an easterly direction, the car in front of him collided with a deer. The plaintiff stopped his car, exited it, and walked towards the deer in the center of the road. He was then struck by defendant’s automobile. The jury found for the defendant, and the trial court entered judgment on the jury’s verdict. The plaintiff appealed, contending, in part, that the verdict was against the manifest weight of the evidence. In affirming the trial court’s judgment, the appellate court held that from the evidence presented, the jury could have concluded that defendant could not be expected to have anticipated the actions of the plaintiff and therefore should not be held negligent. Defendants argue that the holding in Coleman illustrates that, in an appropriate factual setting, a jury may still find for the defendant in an automobile-pedestrian case, even under a system of comparative negligence. Defendants argue that the jury, in the present case, could have found that Marvel was not negligent because he failed to see or look for a pedestrian who unexpectedly appeared in his line of traffic.

However, we do not regard the evidence in this case as establishing a situation in which a pedestrian darted into traffic, thereby causing an unavoidable accident. The law does not permit the driver of an automobile to blindly proceed down a roadway and then claim that he looked and did not see. (Grass v. Hill (1981), 94 Ill. App. 3d 709, 418 N.E.2d 1133.) The evidence established that the 82-year-old plaintiff managed to cross an entire lane of traffic before being struck by Marvel’s automobile. The road upon which Marvel was traveling was straight and level; his view was apparently unobstructed. Marvel admitted at the scene that he did not see the plaintiff in time to avoid the accident. The decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500.) While we agree with defendants that plaintiff’s failure to make sure her way was safe after entering into the street may well have been regarded by the jury as a contributing cause of her injuries, given the evidence of defendant’s negligence, we cannot say that the trial court erred when granting a new trial. This is not to say that application of comparative negligence principles to a personal injury action will always result in a certain degree of fault being apportioned to the defendant. We simply hold that on the facts before us, the trial court did not abuse its discretion when concluding that the jury’s verdict which allocated all fault to the plaintiff could not stand.

The remaining issues may be dealt with summarily. The trial court also found that two remarks made during closing argument to the jury were prejudicial and required a new trial. The first allegedly improper statement by counsel for defendants was as follows:

“Now, the circumstances of those crossings are very bad. The State of Illinois has not placed traffic signals or anything else, but that isn’t the issue in the case. You have to deal with the circumstances that you have and that are existing in the case, and that is what it is. As bad as they are, this is what it is. Whether that should be changed or whether something should be done about it is a time for another court, another jury, another date. It doesn’t have anything to do with this case which is solely concerned with the conduct of Tom Marvel.”

The following comments were made when defense counsel was arguing the question of damages to the jury:

“Now, exercising your duties as jurors and in circumstances like this, could not be — could not be more difficult, but it’s the courage to do this that makes a difference. When you throw a pebble into a pond, the ripples go out and affect a lot of people, a lot of other cases, and I assure you that your verdict in this case will affect a lot of people in a lot of other cases. So, it’s just not acting in terms of one woman, it’s acting in terms — .”

The trial court found that the first remark was prejudicial because it suggested to the jury that plaintiff had another cause of action against another party or parties for her injuries. We note, however, that the remark was unobjected to at trial and in and of itself would not have amounted to reversible error. In the second remark, counsel argued to the jury that the outcome of this lawsuit would have a rip-pie effect upon other cases. This kind of argument is clearly improper and should be avoided upon remand.

Plaintiff also asserts several alternative grounds not relied upon by the trial court which she contends support the granting of a new trial. For the reasons already stated, we are persuaded that a new trial was properly granted. To assist the trial court during retrial, we will address plaintiff’s alternative arguments briefly. She complains that the trial court erred in allowing defendants to amend their answer to her complaint. In their original answer, defendants admitted the following allegation of fact: “At said time and place, Plaintiff was a pedestrian crossing Sangamon Avenue, from south to north, in the crosswalk at the west side of Cahokia Drive.” Defendants were permitted to amend their answer, denying this allegation of fact, thereby requiring plaintiff to proceed with evidence that she crossed Sangamon Avenue at a crosswalk. Plaintiff complains that this error was compounded when she was further prohibited from introducing the prior answer into evidence. We decline to hold that the trial court erred by allowing defendants to amend their answer. However, we believe that the admission contained in the original pleading, even if withdrawn or amended, was admissible against defendants, not as a judicial admission, but as an admission against interest. Accordingly, the refusal of the trial court to admit into evidence the original answer filed by defendants was error. See Grass v. Hill (1981), 94 Ill. App. 3d 709, 418 N.E.2d 1133.

Plaintiff also contends that the trial court committed error in granting defendants’ motion in limine, barring introduction of evidence of a traffic accident report prepared by the city of Springfield police department. When offered to prove the truth of matters recited therein, such reports, like all public records, are hearsay. (Douglas v. Chicago Transit Authority (1972), 3 Ill. App. 3d 318, 279 N.E.2d 44.) Such reports are expressly excluded from the public records exception to the hearsay rule. (See 87 Ill. 2d R. 236.) However, such reports could be admissible under some other exception to the hearsay rule or when offered for purposes other than to show the truth of the matters set forth therein. Whether this evidence should be admitted upon retrial should depend upon the purpose for which it is offered and the foundation which is laid at retrial.

She also contends that the trial court erred in giving various instructions which dealt with the standard of care required of a pedestrian when crossing a street. Plaintiff also complains about the omission of an instruction dealing with a defendant’s common law duty of care as the operator of a vehicle. Suffice it to say that we have examined the instructions that were given by the trial court and conclude that they fairly apprised the jury of the applicable law.

For all the foregoing reasons, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re N.W., a minor (The People of the State of Illinois, Petitioner-Appellee, v. N.W., Respondent-Appellant).
    Second District
    No. 2—83—0566
    Opinion filed June 27, 1984.

      G. Joseph Weller, Paul J. Glaser, and Kyle Wesendorf, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

A supplemental petition for adjudication of wardship was filed in the circuit court of Lake County alleging that N.W. committed the offenses of aggravated assault, battery, burglary, criminal damage to property, and theft. Subsequently, the petition was amended to include allegations of resisting a police officer.

After an adjudicatory hearing, the court directed a finding of not guilty on the allegations of burglary, criminal damage to property and two allegations of resisting a police officer. At the close of the evidence, the court found N.W. guilty of aggravated assault and battery of Curlin Pennick, theft of a stereo equalizer and resisting police officer Chrisman.

Following a dispositional hearing, the court entered judgment, committing N.W. to the Department of Corrections.

N.W. appeals raising these two issues: (1) whether the commitment judgment should be vacated because the court failed to adjudicate the minor a delinquent, and (2) whether the court abused its discretion in committing N.W. to the Department of Corrections.

At the adjudicatory hearing, Curlin Pennick testified that on May 23, 1983, he was approached in an alley in the city of Zion by N.W. and William Hughes. He stated that Hughes pointed a pistol at his face and threatened to beat him up. N.W. then grabbed Pennick. Hughes tried to punch Pennick in the face but when he ducked, Hughes hit N.W. instead. N.W. fell to the ground and Pennick ran off.

N.W.’s version of the incident in the alley differed from Pennick’s testimony. N.W. stated that he and Hughes met Larry Davis and Curlin Pennick and that an argument ensued between Pennick and Hughes. During the argument Hughes displayed a “play gun.” N.W. testified that he grabbed Pennick while Davis grabbed Hughes to keep them separated. Hughes then accidently hit N.W. Davis told essentially the same story.

Concerning the theft incident, Michael Harvey testified that on May 23 he was at the home of Ronda Tyson making a tape. He stated that he owned a 1978 Datsun, and he identified a stereo equalizer which he discovered had been removed from his car on May 23.

Robert Tyson and Steven Williams were also with Harvey at the Tyson house. They testified that they saw N.W. and four other boys outside of the house but did not see anyone in the vicinity of the car.

John Chrisman, a Zion police officer, testified that on the evening of May 23 he responded to a call regarding gunshots. He was looking for N.W. and saw him walking down the street with eight other people near 24th and Hebron. Chrisman stated that he observed N.W. reach in his coat and then throw something over a fence. Officer Velden, who also responded to the call, testified that he retrieved a stereo equalizer on the other side of the fence at the point where Chrisman told him N.W. had thrown something.

Chrisman also testified that he approached N.W. and announced that he was under arrest. When he led N.W. back to the squad car to frisk him, he began to struggle. Two other officers, Bridges and Lowery, arrived and helped Chrisman subdue N.W.

N.W. stated that he did not straggle with Officer Chrisman. Steve Gilmore and Jeffrey Dennis also testified that N.W. did not straggle.

Initially, the State contends that N.W.’s failure to raise the adjudication of delinquency issue at trial or object to proceeding to a dispositional hearing or to the entry of the dispositional order waives this issue on appeal. (In re Scott (1978), 62 Ill. App. 3d 367, 368-69.) The law is well settled that issues raised for the first time on appeal may not normally be considered by a reviewing court. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299.) Since the case concerns a matter of statutory interpretation and all the facts necessary for determination of the issue are before the court, this court of review may rule on the issue. Cronin v. Lindberg (1976), 66 Ill. 2d 47, 61; People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 87.

N.W. contends that the commitment order should be vacated because the court failed to adjudicate him delinquent before proceeding to the disposition. N.W. clarifies his challenge by stating that the present case does not concern when such an adjudication must take place, but rather that it did not take place at all. His argument is not supported by the record, for prior to the court’s announcement of disposition, it stated:

“Given the background, I hereby adjudicate him a delinquent ward. I find that [N.W.’s] parents are unable for reasons other than financial circumstances to train or discipline [N.W.] and that the best interests of the minor and the public would not be served by placement under Section 5 — 7.
I find that placement in the Department of Corrections, Juvenile Division, is appropriate, and I order that that be the disposition in this case.”

Therefore, contrary to N.W.’s assertion, we perceive his argument to relate to an alleged failure of the trial court to adjudicate him a delinquent prior to the dispositional hearing itself.

The processing of a petition filed under the Juvenile Court Act involves three separate court determinations. First, at an adjudication hearing, the court must determine whether the minor is delinquent, addicted, requiring authoritative intervention, neglected or dependent as defined in the Act. (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 1.) If the court finds that the minor falls into one of these categories, it must then determine whether it is in the best interest of the minor and the public that the minor be adjudged a ward of the court. (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8(2).) Adjudication of wardship is a prerequisite to disposition of-the minor, the third court determination. Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8(1), (2); In re J.J. (1979), 71 Ill. App. 3d 227.

N.W. states in reference to the Juvenile Court Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 704 — 8), “This section clearly anticipates that some exercise of discretion take place before the court is authorized to proceed with a dispositional hearing.” Before addressing the merits of N.W.’s contention, the State argues that previously on July 13, 1982, N.W. had been adjudicated a delinquent ward of the court in that he had committed the offense of burglary. The same trial judge as in the present case entered that order. The dispositional order of July 13, 1982, set forth a one-year period of probation which was to terminate June 29, 1983. This order of adjudication of delinquent wardship was never vacated; consequently, the State concludes that N.W. was a delinquent ward of the court when he entered the courtroom on June 8, 1983, for the hearing and remained a delinquent ward of the court throughout the course of both hearings. The State specifically referred to N.W.’s status at the beginning of the disposi-tional hearing where it stated:

“MS. MARTIN: As your Honor has pointed out, the minor’s first contact was back in January of 1981, over 2 years ago, at which time he was on a 90-day diversionary program and received services from that.
He also was placed on 704 — 7 supervision from January of ’82 through July of ’82, and then he was adjudicated delinquent on the 13th of July and remained so until it was supposed to terminate this month.”

This statement was met with no objection from the minor.

The case of In re F.S. (1979), 70 Ill. App. 3d 526, is instructive. In that case, the minor appealed from a judgment entered on October 26, 1977, adjudicating him to be a delinquent minor and committing him to the Department of Corrections. Prior to that date, the court had entered an earlier finding and order adjudicating the minor a ward of the court and placing him on probation. The minor contended that the court lacked jurisdiction to proceed to the dispositional hearing because the record neither reflected nor supported a finding by the trial court that it was in the best interests of the minor and the public that he be adjudged a ward of the court. The reviewing court noted that no such determination had been made by the court but stated:

“[T]he record reflects that defendant had previously been found to be a delinquent and that the court had determined it to be in the best interests of the minor and the public that the minor be made a ward of the court in an earlier proceeding ***. We hold that the trial court, because of its earlier and still effective adjudication of wardship of defendant-minor, did have jurisdiction to proceed to a dispositional hearing on the instant matter.” (70 Ill. App. 3d 526, 527.)

In making this finding, the court relied on section 5 — 11 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 705 — 11), which stated:

“(1) All proceedings under this Act in respect of any minor automatically terminate upon his attaining the age of 21 years.
(2) Whenever the court finds that the best interests of the minor and the public no longer require the wardship of the court, the court shall order the wardship terminated and all proceedings under this Act respecting that minor finally closed and discharged. The court may at the same time continue or terminate any custodianship or guardianship theretofore ordered but such termination must be in compliance with Section 5 — 8.”

It is not entirely clear whether the F.S. court considered the prior finding of delinquency as well as that of wardship to be still effective as the State argues in the present case. Nevertheless, the fact that the delinquency finding had to precede the wardship determination might be logically interpreted as extending its effectiveness also.

Following this line of reasoning, since the original order placing N.W. on probation had not expired nor was it terminated by the court and N.W. had not attained the age of 21 years, the order of disposition was subject to modification upon the filing of a supplemental petition under the provisions of sections 4 — 1(6) and 5 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, pars. 704 — 1(6) and 705— 2). (See In re J.J. (1979), 71 Ill. App. 3d 227, 229-30.) To be noted, however, is that a supplemental petition seeking revocation of probation was not filed in the present case. Rather, a petition to begin adjudicatory proceedings anew is present. The reason for this procedure is unclear since the State had to prove the commission of the offenses beyond a reasonable doubt, rather than the lesser burden of preponderance of the evidence. (In re Thompson (1980), 79 Ill. 2d 262, 267-68.) Nevertheless, by so doing the State eliminated the requirement that the court base its subsequent dispositional order solely on the conduct which resulted in the initial finding of delinquency. In re R.P.M. (1983), 113 Ill. App. 3d 376, 378.

N.W. relies on In re Beasley (1977), 66 Ill. 2d 385, for the proposition that a finding of guilt alone is an insufficient basis upon which to proceed to a dispositional hearing. N.W.’s reliance appears misplaced, for Beasley dealt with the standards which must guide a trial judge in assessing the due process sufficiency of juvenile delinquency proceedings wherein minors make admissions of guilt. (66 Ill. 2d 385, 389.) A reading of Beasley finds no reference to a finding of guilt by the court after a complete hearing as in the present case.

It is our opinion that the court’s finding of guilt of the offenses listed in the State’s supplemental petition for adjudication of wardship removed any doubt that the court properly proceeded to the dispositional hearing and commitment order. We find that In re J.N. (1982), 91 Ill. 2d 122, is dispositive of this issue. J.N. involved the issue of whether the circuit court’s order was final. In discussing this order, the court stated:

“While the circuit court did not explicitly find J.N. to be a delinquent, it did find J.N., who was 13 years old, guilty of the offense as charged in the petition for adjudication as a delinquent. The court pronounced the finding of guilt in open court and in a written order that was never vacated. Considering this, we must treat that finding as a finding of delinquency, because the Act defines a delinquent as a minor who ‘prior to his 17th birthday has violated *** any federal or state law ***.’ Ill. Rev. Stat. 1979, ch. 37, par. 702-2.” (91 Ill. 2d 122, 128.)

Additionally, the J.N. court stated that the minor need not be explicitly adjudged to be a ward of the court to give the court jurisdiction. An adjudication of wardship may be implied. (In re J.N. (1982), 91 Ill. 2d 122, 129; In re Scott (1978), 62 Ill. App. 3d 367, 368.) Therefore, we conclude that the trial court explicitly adjudicated the minor a delinquent ward prior to its announcement of disposition and impliedly adjudicated the minor a delinquent at the conclusion of the adjudicatory hearing by its finding of guilt for the offenses alleged. Further, applying the court’s holding in J.N., the finding of guilt, coupled with the order of commitment to the Department of Corrections, also reasonably implied the adjudication of the minor as a ward of the court.

N.W. next contends that the court abused its discretion in three respects by committing him to the Department of Corrections. First, he argues that the order was against the manifest weight of the evidence. Secondly, he states that the order was contrary to statutory intent. Lastly, he claims that the comments of the court indicate that it failed to give adequate consideration to less drastic placement alternatives due solely to a desire to punish him.

It is well established that it is the function of the trial court to determine the dispositional order to be entered and the decision will not be disturbed unless there is an abuse of discretion demonstrated. (In re C.O. (1979), 73 Ill. App. 3d 369, 373, quoting from In re Wilson (1976), 40 Ill. App. 3d 619, 622; In re Young (1978), 63 Ill. App. 3d 897, 898.) Also, the statute gives the juvenile court wide discretion in determining an appropriate disposition. (In re Scott (1978), 62 Ill. App. 3d 367, 370.) A review of the record in the present case indicates that there was ample evidence to support the trial court’s decision to commit the minor to the Department of Corrections.

N.W. argues that the court acted contrary to statutory intent which he perceives as requiring the court to give preference to placement alternatives other than the Department of Corrections as expressed in section 5 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 2). This argument need not be addressed, for the record indicated that the court gave due consideration to less severe placement alternatives as required by section 5 — 10(1) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 10(1)), which provides that a minor may be committed to the Department of Corrections only if the court finds that (a) his parents are unfit or unable for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and (b) the best interests of the minor and the public will not be served by placement under section 5 — 7 of the Act. Although the court expressed regret for the necessity of its commitment decision, it nevertheless found the less restrictive alternatives to commitment to be inappropriate in the present case. Specifically, the record reveals that the court reviewed the total history of the minor from 1981 to the present. That history included assault, aggravated battery and burglary. More importantly for the purposes of this appeal, the court noted the failure of prior placements to help N.W. withstand negative peer pressure, which was conceded by all involved to be the root of N.W.’s problem.

In 1981 N.W. had been involved in a 90-day diversionary program and was also provided with court supervision during that year. In 1982, after being adjudicated a delinquent ward, N.W. was placed at Rosecrance, a residential facility, where he received intensive services. After discharge from Rosecrance, N.W. was found guilty of battery on one occasion and guilty of driving under the influence of alcohol on another. Because of problems in the Zion-Benton school, he was placed by SEDOL in the Adler school in Libertyville. The Chrysalis program in which he was enrolled was based on positive peer-group pressure, as was the Rosecrance program. The court also noted the positive custody report during N.W.’s most recent period in secure detention. Of particular significance was the court’s recognition that N.W.’s family was supportive and extremely cooperative. The evidence before the court indicated that N.W. had been successful in highly structured situations. As N.W. states, such placement had proven effective. However, the court was also cognizant of the central problem in the present case, namely the inability of N.W. to function acceptably in society when out of a highly structured environment. The record reveals that contrary to prior court order, N.W. continued to associate with a peer group which included other delinquent wards of the court. In short, there was extensive evidence to indicate that N.W.’s parents, though highly supportive, were unable to discipline the minor when away from home and among his peers. There was also a history of the failure of other alternatives employed in the past to correct and rehabilitate N.W. in accordance with the purposes of the Juvenile Court Act. In re Beasley (1977), 66 Ill. 2d 385; In re Dow (1979), 75 Ill. App. 3d 1002.

The minor appears to. argue that the court placed too much reliance on his prior contacts with the police when considering proper disposition. A juvenile court, however, may consider a variety of factors such as prior arrests (In re Siebert (1975), 29 Ill. App. 3d 129), station adjustments or curfew violations (In re Sneed (1976), 38 Ill. App. 3d 1041, 1042), and the social investigation (In re Stead (1978), 59 Ill. App. 3d 1012, 1014) in determining whether to commit to the Department of Corrections. The record does not substantiate the minor’s claim that the court desired to punish him. As already noted, the court considered the success of prior dispositions, the supportiveness of the family and the social investigation report, as well as prior police contacts. It expressed regret at what it perceived to be a necessary result.

The dispositional choice of the Department of Corrections was both supported by the evidence and in line with statutory intent. Commitment could have reasonably been viewed by the court as affording the structured setting in which N.W. had been successful in the past while at the same time adequately safeguarding the protection of the public and the best interests of the community in light of the stated purposes of the Juvenile Court Act.

It is our opinion that both the finding of delinquency and adjudication of wardship based on delinquency properly preceded the minor’s commitment to the Department of Corrections. A review of the record further indicates that the juvenile court did not abuse its discretion. The commitment order was neither against the manifest weight of the evidence nor contrary to statutory intent. The court gave adequate consideration to less drastic placement alternatives.

For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.

       Amended by Public Act 83 — 931, effective January 1,1984.


author: JUSTICE LINDBERG

text:
    CORBIT WAYNE GREGORY, Plaintiff-Appellant, v. E. ALLEN BERNARDI, Acting Director, Department of Labor, et al., Defendants-Appellees.
    Second District
    No. 2—83—0591
    Opinion filed June 29, 1984.

      Kevin M. Kane and Barry A. Schultz, both of Prairie State Legal Services, Inc., of Waukegan, and Bernard H. Shapiro, of Prairie State Legal Services, Inc., of Rockford, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien and Patricia Rosen, Assistant Attorneys General, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

A claimant for unemployment compensation benefits brought this action for judicial review of a determination of the Board of Review of the Department of Labor, which denied his claim. The circuit court of Lake County affirmed the decision of the Board of Review. Because the Board of Review employed the proper standard for determining the case and because the Board’s findings are supported by the evidence, we affirm the circuit court’s order.

In January 1982, plaintiff, Corbit Wayne Gregory, was employed by Campbell Cab in its final assembly department. After missing several days of work during that month, he was fired. His claim for unemployment compensation benefits was denied by a claims adjudicator of the Department of Labor, who determined that Gregory was ineligible for benefits because he was discharged for misconduct. See Ill. Rev. Stat. 1981, ch. 48, par. 432.

Gregory then appealed to a referee of the Department of Labor, Division of Unemployment Compensation. The referee conducted a hearing at which three persons testified: Gregory; Mrs. James Campbell, the vice-president of Campbell Cab; and a party referred to in the record as “Ms. Gsemuf,” but whom Gregory’s brief represents to be Gail Grenus. The referee found that Gregory was discharged on January 15, 1982, after missing two days of work due to transportation problems. The referee concluded that no misconduct had occurred and that Gregory was eligible for benefits.

Campbell Cab then appealed the referee’s decision to the Board of Review of the Department of Labor (Board). The Board made findings supportive of the employer, concluded that Gregory had been discharged for misconduct, and reversed the decision of the referee. On October 4, 1982, Gregory filed this action pursuant to the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, pars. 3 — 101, 3 — 112) for judicial review of the Board’s decision.

Gregory first contends that the Board erred in relying upon evidence outside the record, thereby denying him his due process rights of notice, cross-examination and opportunity to rebut regarding the additional evidence. The additional evidence to which Gregory refers is a “summary of events” contained in Campbell Cab’s letter of June 15, 1982, to the Board requesting appeal of the referee’s decision.

Gregory relies upon the rule that an administrative agency cannot base its decision upon facts, data, or testimony which does not appear in the record; findings must be based on evidence introduced in the case, and nothing can be treated as evidence which is not introduced as such. (Cook County Federal Savings & Loan Association v. Griffin (1979), 73 Ill. App. 3d 210, 391 N.E.2d 473; Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 363 N.E.2d 44.) Defendants do not dispute this rule, but rather point out that the Board’s decision explicitly asserted that it did “not deem it necessary to take additional evidence.”

Despite this assertion of the Board, two of its findings of fact have no basis in the record of the proceedings before the referee: (1) that Gregory was late to work on January 11, 1982, and (2) that Gregory did not call in to report his absence on January 12, 1982. Because both of these facts are asserted in the June 15 letter, it is apparent that the Board did consider evidentiary material not properly part of the record. Defendants do not attempt to justify the use of factual material from the letter requesting appeal as the Board’s “tak[ing of] additional evidence in hearing such appeals’ ’ as provided for by statute. (See Ill. Rev. Stat. 1981, ch. 48, par. 473.) By its improper consideration of the June 15 letter as evidence, the Board deprived Gregory of his due process rights with regard to the eviden-tiary material in the June 15 letter. See Cook County Federal Savings & Loan Association v. Griffin (1979), 73 Ill. App. 3d 210, 391 N.E.2d 473; Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 363 N.E.2d 44.

However, we do not believe that the two findings improperly gleaned from the contents of the June 15 letter were enough, by themselves, to affect the decision reached by the Board. The Board recited, in support of its decision, several other instances of Gregory’s failing to be at work and failing to call in and notify his employer that he would be absent. The concept of harmless error is applicable to judicial review of unemployment compensation administrative proceedings. (See Nendza v. Board of Review (1982), 105 Ill. App. 3d 437, 444, 434 N.E.2d 470, 475; Nestle Co. v. Johnson (1979), 68 Ill. App. 3d 17, 20, 385 N.E.2d 793, 796.) We hold that this error, considered alone, caused Gregory no prejudice and does not warrant reversal.

Gregory’s second contention is that the trial court and the Board erred in failing to give substantial weight to the referee’s findings of fact. The Board, in rendering its decision, made an independent assessment of the evidence in the record, rather than merely determining the supportability of the referee’s findings. We must determine what deference the Board and, in turn, the courts owed to the referee’s findings of fact. Neither the statute nor the cases answer this question directly. However, both of these sources, as we shall demonstrate, indicate inferentially that the Board, as final trier of fact, need only consider the findings of the referee, but without giving them the sort of weight a reviewing court must give a trier of fact.

Pursuant to statute, no decision of a referee in an unemployment compensation case is subject to direct judicial review. (Ill. Rev. Stat. 1981, ch. 48, par. 471, and ch. 110, par. 265; see People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043.) To be challenged, the decision of a referee must be appealed to the Board within 30 days. (Ill. Rev. Stat. 1981, ch. 48, par. 471.) The Board may then “affirm, modify, or set aside any decision of a Referee [and] may take additional evidence in hearing such appeals” (Ill. Rev. Stat. 1981, ch. 48, par. 473). The Board is charged with rendering “findings” as well as a “decision.” (Ill. Rev. Stat. 1981, ch. 48, par. 473.) Decisions of the Board are then subject to judicial review in accordance with the provisions of the Administrative Review Law (formerly the Administrative Review Act). Ill. Rev. Stat., 1982 Supp., ch. 48, par. 520.

Thus, the referee is not the finder of fact, but merely one such finder, along with the claims adjudicator (see Ill. Rev. Stat. 1981, ch. 48, par. 451) and the Board, within the Department of Labor’s procedure for determining the validity of unemployment compensation claims. The Board, as the ultimate finder of fact, is not bound by the referee’s decision and may actually expand the record prepared by the referee. It is the decision of the Board, not the referee, which is reviewed by the courts. From this statutory framework, we infer that the Board is to make its own independent assessment of the evidence on record and need not defer to the findings of the referee the way the courts must defer to the findings of the Board.

Consistently with this statutory framework, it has been held that the function of the Board is to determine the facts from all the evidence and circumstances (see Brown v. Board of Review (1972), 8 Ill. App. 3d 19, 23, 289 N.E.2d 40, 43) and that the function of the court is to ascertain whether the Board’s findings, as part of the final administrative decision, are supported by the manifest weight of the evidence (see Brown v. Board of Review (1972), 8 Ill. App. 3d 19, 289 N.E.2d 40; Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 414 N.E.2d 1244; Skirin v. Bowling (1980), 86 Ill. App. 3d 954, 408 N.E.2d 355). While in these cases the Board’s findings did not differ from the referee, two earlier supreme court opinions held that the court’s role was to determine whether the findings of fact as resolved by the Director of Labor were supported by the manifest weight of the evidence, despite the fact that in each case the Director had reversed his deputy’s initial determination. Shell Oil Co. v. Cummins (1955), 7 Ill. 2d 329; Robert S. Abbott Publishing Co. v. Annunzio (1953), 414 Ill. 559.

Gregory cites numerous cases for the propositions that the trier of fact alone should judge the credibility of witnesses and reconcile conflicting evidence and that a reviewing body should not disturb the trier’s findings unless they are against the manifest weight of the evidence. (Stillwell v. Continental Illinois National Bank & Trust Co. (1964), 31 Ill. 2d 546; Badger Building Corp. v. Gregorio (1981), 102 Ill. App. 3d 594, 430 N.E.2d 561; Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604; Marth v. Illinois Weather-Seal, Inc. (1977), 50 Ill. App. 3d 577, 365 N.E.2d 588; Ciolek v. Jaskiewicz (1976), 38 Ill. App. 3d 822, 349 N.E.2d 914; Pittman v. Lageschulte (1963), 45 Ill. App. 2d 207, 195 N.E.2d 394; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814.) All of these cases except the last involved the standard of review of the appellate court over trial courts. Daley v. Jack’s Tivoli Liquor Lounge, Inc. involved review by the appellate court, trial court, and the State’s Liquor Appeal Commission of a liquor license revocation by the local liquor control commission. By statute in that case, the State commission’s review of the local commissioner’s findings was limited to determining whether they were supported by substantial evidence. (Ill. Rev. Stat. 1967, ch. 43, par. 153.) Thus, these cases do not aid Gregory here because the Board itself, unlike an appellate court or the State License Appeal Commission under the circumstances in Daley v. Jack’s Tivoli Liquor Lounge, Inc., is a trier of fact and is not limited to a manifest-weight-of-the-evidence standard of review.

However, while the Board is to make an independent assessment of the evidence, it also appears that the Board must give consideration to the findings of the referee. Where a hearing examiner in an administrative proceeding is required by statute to make a report, that report is part of the record and must be considered by the reviewing court. (Ramos v. Local Liquor Control Commission (1978), 67 Ill. App. 3d 340, 384 N.E.2d 912.) But where an administrative agency and not the hearing examiner is responsible for the decision, the agency need not reverse only when the examiner’s findings are “clearly erroneous”; rather, the agency must make its own decision based on the evidence in the record. (67 Ill. App. 3d 340, 344-45, 384 N.E.2d 912, 916.) Gregory’s argument that the hearer of testimonial evidence is the only proper judge of witness credibility has been answered in the administrative law context by the requirement that the hearing officer must convey his findings, conclusions and impressions of conflicting testimony to the decision-making body. (Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102; American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 435 N.E.2d 761.) The decision-making body is not bound by such findings, but the findings would be of unquestionable value to the body where the decision-makers took no part in the actual presentation of evidence. (Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 80, 303 N.E.2d 606, 616, aff’d (1975), 60 Ill. 2d 204.) Thus, the Board here was required to consider the findings of the referee as part of the record, but was free to consider the whole record in order to reach its own independent findings.

Gregory’s final contention is that the Board’s decision is against the manifest weight of the evidence and that the referee’s decision is supported by substantial evidence. In an unemployment compensation case, the court’s function is limited to ascertaining whether findings of the Board are supported by the manifest weight of the evidence; the court may neither substitute its own judgment nor overturn the Board’s findings unless they are without substantial support in the record. (Flores v. Board of Review (1979), 74 Ill. App. 3d 667, 393 N.E.2d 638; Skirin v. Bowling (1980), 86 Ill. App. 3d 954, 408 N.E.2d 355.) Thus, whether the referee’s decision is supported by substantial evidence is not relevant to this court’s determination. Pursuant to the previous discussion, however, the referee’s findings are relevant as part of the record that the Board should have considered.

The Board’s findings were as follows:

“The claimant was employed by the appellant from October, 1981 through January 11, 1982, at a final wage of $5.00 per hour. The claimant was discharged because of attendance. On January 6, 1982, he called in to advise that he was sick and would not be at work until January 11, 1982. He was late to work on January 11, 1982, and the following day he was absent without calling in. The claimant was also absent from work January 13, 14, and 15, 1982. The employer’s representative testified they had arranged for the claimant to get a ride into work on January 15, 1982, because he stated he was unable to get into the plant due to car trouble. The claimant did not show up at the pick-up point for the ride. He was not at work the following week January 18, 1982, through January 22, 1982, and was thereafter discharged. The claimant responded that he was either sick or unable to get to work because of the extreme cold and could not get his car started.
The claimant’s discharge was for misconduct. He showed a disregard of his responsibilities toward his employer by his failure to be at work and, additionally, on frequent occasions, by his failure to even call in and notify them that he would not be there. He complained that he was unable to get his car started, however the employer had arranged for the claimant to get a ride. The claimant is ineligible for benefits from March 14, 1982, and thereafter, until he has been re-employed and has had earnings in each of four calendar weeks which equal or exceed his current weekly benefit amount, under the provisions of Section 602 of The Illinois Unemployment Insurance Act.”

Besides the two minor findings discussed in the first issue as unsupported by the evidence, Gregory challenges three major findings of the Board: (1) that he was fired for failing to appear or call at work for the week of January 18, 1982; (2) that he did not meet the ride arranged for him on January 15, 1982; and (3) that he often failed to notify his employer when he did not come to work.

Gregory’s characterization of the first finding is not totally accurate: the Board did find that he was discharged because of attendance problems, but the Board noted absences on January 12 through 15 as well as those of the following week. The dispute between the parties is more precisely the question of when Gregory was actually fired. Gregory testified that when he called into work Monday the 18th to report that he still could not come in to work because of his car troubles, he asked his supervisor if he was terminated and received an affirmative reply. This was supported by Ms. Grenus’ testimony that she spoke to the supervisor on Friday the 15th and was told that “he [Gregory] comes in Monday for sure or he would be fired.” Mrs. Campbell, on the other hand, testified that Gregory was not terminated until January 21 because “we have to wait for four days,” presumably meaning four days of unreported absences. Mrs. Campbell thought that Gregory’s supervisor had notified Gregory, but did not know how Gregory had been terminated. The referee apparently believed Gregory because he found that the claimant was discharged on January 15,1982, after missing just two days of work.

Findings of an administrative agency on questions of fact are to be held prima facie true and correct and, if the issue is merely one of conflicting testimony and credibility of a witness, the agency’s determination should be sustained. (Batley v. Kendall County Sheriff’s Department Merit Com. (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201.) Mrs. Campbell’s testimony adequately supports the Board’s finding that Gregory was not fired until his second week of missing work.

With regard to the ride arranged for Friday the 15th, it is undisputed that Gregory failed to meet the ride. Gregory explained that he arrived at the pickup point a few minutes late because of the severe wintry conditions. Further, he tried to hitchhike but was unsuccessful. Gregory argued that the evidence on this point shows no intentional harm to his employer’s interest. The fact remains that Gregory failed to meet his ride and, when considered in the context of his other conduct, supports the inference that “[h]e showed a disregard of his responsibilities toward his employer ***.”

Finally, with regard to Gregory’s failures to call in to report his absences, he points out that he called in on January 13 and 14 and he argues that whether he called in the following week is irrelevant because he was already fired. However, Mrs. Campbell testified that Gregory called in late on both the 13th and 14th and that he failed to call in at all on the 15th and on the following four work days. Gregory conceded that he did not call in after missing his ride on the 15th, but explained that Ms. Grenus had already talked to his supervisor. Most importantly, since it was found that Gregory was not fired until later in the week of the 18th, his failures to call in that week are indeed relevant.

In sum, the Board’s findings, with two minor exceptions, are supported by the manifest weight of the evidence. Those findings support the determination of the Board that Gregory was discharged for misconduct. Accordingly, we affirm the order of the circuit court of Lake County which affirmed the Board’s decision.

Affirmed.

SEEDENFELD, P.J., and HOPF, J., concur.

      Subsequent to oral argument, defendants asked leave of this court to cite Starkey v. Civil Service Com. (1983), 97 Ill. 2d 91, as supplemental authority. We grant leave and observe that Starkey supports our position. There, our supreme court noted that the Industrial Commission, regardless of whether it hears additional evidence, is not bound to accept the findings of the arbitrator in the workers’ compensation area and held that this was analogous to the comparative roles of the Civil Service Commission and its hearing officer in the State employee discharge area (97 Ill. 2d 91, 101). Such an analogy is also appropriate to the comparative roles of the Board and the referee here.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE CITY OF ROCKFORD, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Second District
    No. 2—83—0673
    Opinion filed June 27, 1984.

      Charles E. Box and Ronald N. Schultz, both of City of Rockford Department of Law, of Rockford, for petitioner.
    Donald L. Shriver, of Downey, Yalden, Shriver & Walden, of Rockford, for respondents.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

We review the order of the Illinois Pollution Control Board (PCB) approving the location of a site for a liquid industrial waste regional pollution control facility in Rockford to be constructed by Frink’s Industrial Waste, Inc. (Frink’s).

The city council of Rockford, as the governing body of the municipality, charged by statute with determining site location suitability (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039.2), denied the Frink’s application. The PCB on review (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1040(a)) granted approval. Rockford appeals.

The proposed facility is designed to treat four types of liquid waste: alkaline water, coolant and cutting oils, chromium and zinc phosphate effluents, and solvent-water mixtures.

Frink’s proposes to collect from industries generating these wastes in the Rockford area and to carry them to its facility in 5,000 gallon capacity trucks. These trucks would unload their contents into covered tanks of various sizes at the proposed facility. From these tanks, Frink’s would treat the wastes, reclaim some chemicals, discharge waste water into the Rockford Sanitary District sewers, and haul sludges to a landfill.

Frink’s proposes to locate the facility in South By-Pass Industrial Park, at the southwest corner of Kishwaukee Street and Boeing Drive, in the city of Rockford, Illinois. Kishwaukee Street is a four-lane highway running north and south. Boeing Drive runs east and west, and serves as access to the Industrial Park. Several industrial concerns are already located in the Industrial Park, including one firm that processes industrial oils by filtration.

Immediately to the north of South By-Pass Industrial Park is a four-lane, east-west highway known as Route 194 By-Pass, U.S. 20, which is elevated as it crosses Kishwaukee Street. North of Route 194 and west of Kishwaukee Street is the Rockford Sanitary District Treatment Plant and an industrial subdivision fronting on Kishwaukee Street. Riverdahl School is approximately 2,000 feet east of this subdivision across Kishwaukee Street and elevated Route 194". South of Route 194 and directly east of South By-Pass Industrial Park is a largely vacant tract owned by the Rockford Local Development Corporation. Sundstrand Corporation has recently built an industrial building on one part of the Local Development Corporation tract, along the east side of Kishwaukee Street.

I

Rockford first argues that the PCB erroneously reweighed the evidence and substituted its findings for those of the governing body of the municipality, although the contrary decision of the municipality was supported by sufficient evidence.

We first address the standard of review applicable to the proceedings before the city council. Rockford agrees that the manifest weight of the evidence standard applies, and contends that the council’s decision denying site approval was not against the manifest weight of the evidence and should have been approved on review. This court has held that the manifest weight of the evidence standard applies to the review of site location decisions made by a governing body under section 39.2 of the Environmental Protection Act. Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039.2. See E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 608, appeal allowed.

Frink’s contends that the PCB decision overruling Rockford’s denial of site location approval was proper under the manifest weight of the evidence standard. It argues, however, that E & E Hauling is wrongly decided on this issue, and that the manifest weight of the evidence standard should only be applied to an administrative agency with recognized pollution control expertise, and not to the city council. It reasons that the declared purposes of the Environmental Protection Act are to establish ecologically sound regional pollution control facilities to ease the recognized difficulty of disposing of refuse and to establish a unified statewide program for environmental protection. See Ill. Rev. Stat. 1983, ch. 1111/2, pars. 1002(a)(ii), 1020(b); see also Carlson v. Village of Worth (1975), 62 Ill. 2d 406.

Pending supreme court review, we adhere to the manifest weight standard.

Our conclusion is supported by an analysis of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1001 et seq.). Section 3(a) of the Act defines “Agency” as the Environmental Protection Agency and defines “Board” as the Pollution Control Board. (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1003(a), (c).) Section 39 deals with the issuance of permits. (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039.) Section 39(a) allows the Board to require permits and requires the agency to issue permits upon proof that the applicant has complied with the Act. (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039(a).) Section 39(c) requires the applicant who proposes to develop or construct a new regional pollution control facility first to obtain proof that the local government entity has approved the site location in accordance with section 39.2 of the act. (Ill. Rev. Stat. 1983, ch. 1111/2, pars. 1039(c), 1039.2.) Section 39.2, at issue in this case, requires the local governing entity to approve site location suitability considering six listed criteria which together have the effect of making a uniform set of zoning standards for the location of regional pollution control facilities throughout the State. Houlihan & Flynn, The Siting of Sanitary Landfills and Other Waste Management Facilities — The Legislature Acts, 70 Ill. B.J. 434, 437 (1982).

Comparing section 39(a), granting the agency general authority to issue permits, with section 39.2, granting the local governmental entity authority to approve site location, it appears that the local governmental entity has been given the adjudicatory function otherwise located in the agency itself. The fact that the statute contains parallel review procedures in section 40 (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1040, providing for Board review of Agency denial of permits), and in section 40.1 (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1040.1, providing for Board review of local governmental entity denial of site location approval), reinforces the view that in site location decisions the local governmental entity performs an adjudicatory function. Adjudicatory decisions made by an administrative agency are reviewed under a manifest weight of the evidence standard. See Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill. 2d 226, 234; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 77.

II

We conclude that the PCB properly found Rockford’s siting decision to be against the manifest weight of the evidence.

The Pollution Control Act provides criteria which the local governing bodies are to apply in deciding site location suitability. (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039.2(a)(i-vi).) The council’s resolution adopting the amended recommendation of the Rockford Committee on Community Development found that the criterion that the proposed facility was necessary to accommodate the waste needs of the area it was intended to serve was met, noting the express needs of the durable goods manufacturers in the area, the strict State and Federal laws for proper disposal of industrial wastes, and the high cost of disposal outside the area. Applying the remaining statutory criteria, the resolution found that: the facility was outside the boundary of the 100-year flood plain by one-quarter of a mile; the facility was designed to minimize the danger to the surrounding area from fires, spills or other operational activities, by incorporating “many safety features” and “numerous backups” with monitoring of operations by the Rockford Sanitary District and the EPA; the traffic patterns for the facility, characterized as a capital, not labor, intensive operation, were designed to have minimal impact on existing traffic flows.

The area of controversy is relatively narrow and involves only the particular location and the compatibility of the operation with the character of the surrounding area. Respecting the criterion of health, safety and welfare, the council’s resolution states that “[t]he design of the plant incorporates many features to protect the health and safety of the public and was made by a well qualified engineering firm,” and that “[t]he proposed operation of the facility would appear to protect the public health, safety and welfare if such operation is performed properly.” It concluded, however, that the particular criterion had not been met because:

“Location
Testimony received at the January 24, 1983 public hearing and the application itself evidence the extremely hazardous nature of the chemicals to be handled. Therefore despite many favorable design features, the risk to public health should any of these design features fail or accidents in transport occur must be considered. Riverdahl School is located approximately 2,000 feet northeasterly of the proposed site and is served by well water. The risk to the health and safety of the children of this school, considering the hazardous waste to be treated and its largely unknown effects, is unacceptable. The public’s overwhelming concern about the site location in relation to River-dahl School is evidenced in the public hearing of January 24, 1983.”

It also concluded that the further criterion relating to the location of the facility so as to minimize incompatibility with the character of the surrounding area and minimize the effect on value of surrounding property had not been met. The amended report indicated that the opinion of appraiser Dale Scott, stating that devaluation of the property will not occur, is undisputed, but noted that:

“2. Correspondence received'from Honeywell, which has a facility on an adjacent parcel, indicates incompatibility due to the existence of one pollution control facility in the Industrial Park already. Therefore, the use of this area for general industrial purposes may deteriorate into an exclusive site for disposal facilities.
3. The site is incompatible with the nearby location of River-dahl School, due to the inherent risks of handling hazardous wastes. Short of relocating the school, it is doubtful that satisfactory measures could be taken to further minimize this incompatibility.”

First, any adverse effect of the facility on surrounding property values is neither evident from the record nor emphasized by Rockford. It concedes in its brief, in fact, that “it is very likely that the proposed site in this case would have been approved were it not for the school being in such close proximity.” Letters from many of the surrounding industrial neighbors approving the location of the facility are in evidence. Of these, only one, from Honeywell, opposed the facility because it believed that an existing facility, namely Interstate Pollution Control Company, in the Industrial Park, was sufficient and that a second waste facility might cause the area to deteriorate into an exclusive site for disposal facilities. The undisputed testimony of the real estate appraiser, W. Dale Scott, was that any detrimental effect on nearby residential values had already occurred as a result of the existing industrial uses and that the proposed site in the industrial area was appropriate for a waste treatment facility.

It is apparent that the decision to deny approval is largely based on the Riverdahl School objection. There was testimony that the school is 2,000 feet downwind from the proposed site and is served by a ground water well, and that trucks carrying hazardous waste to and from the site will travel on Kishwaukee Street, in front of the school and on the elevated highway just south of the school. The principal of the school, however, agreed that there are other existing industrial uses within the neighborhood including Honeywell to the west, Sund-strand to the south, and Gates Rubber to the east, and that railroad tracks lie directly behind the school.

There was evidence that the system would be entirely enclosed with separate piping, tanks and processing systems for each type of waste treated which would allow prompt discovery and repair of any leaks. The plan includes curbing around the tank areas to contain spills, a ventilation system which passes through activated carbon to prevent odors and fumes from escaping, and a negative air flow within the system to minimize risk of explosion or fire. Evidence also showed that the waste, before treatment, will be approximately 90% water, and that the recovered products are less flammable than other hazardous materials commonly transported on Rockford streets. Frink’s documentation supports its position, and there is little scientific documentation of the risks that the city fears.

The PCB found “that the risks posed by the Frink’s wastes are mitigated by the fact that they are diluted with water from 10% to 90%, depending upon the type of waste, and by the containment methods included in the facility design.” The PCB concluded in its report that “[rjeduced to its essence, the conclusion [of the city council] is that any element of risk is unacceptable, and that no ‘satisfactory measures could be taken to further minimize [the] incompatibility’ of the proposed Frink’s site with the school since there is no way to guarantee that failures and accidents will not occur.” As Frink’s argues and we agree, this conclusion by the city council does not support its denial under the statute. The statute speaks of minimizing incompatibility and danger from accidents, it does not speak of guaranteeing no increase of risk concerning any of the criteria. Ill. Rev. Stat. 1983, ch. 1111/2, par. 1039.2; and see E & E Hauling v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 614.

We also find no basis for Rockford’s claim that the PCB substituted its own conclusions rather than basing its review on the record. The tenor of the decision of the PCB was that there were no special circumstances which could support the city’s conclusion that the proposed site was located too close to the Riverdahl School based “on its own review of the record.”

The manifest weight of the evidence indicates that a contrary result from that reached by Rockford is clearly evident. (See Jenkins v. Universities Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 219.) We therefore affirm the decision of the Illinois Pollution Control Board.

Affirmed.

LINDBERG, and HOPE, JJ., concur.

      Frink’s also argues that City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 680, is wrongly decided on this issue. This opinion does not discuss that decision, however, because the Illinois Supreme Court has dismissed the appeal of the cause and vacated the decision of the appellate court as moot. City of East Peoria v. Pollution Control Board (No. 59110, May 24,1984, unpublished order).


author: JUSTICE NASH

text:
    BENJAMIN SAVAGLIO, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF OAK BROOK et al., Defendants-Appellants.
    Second District
    No. 2—83—0737
    Opinion filed June 29, 1984.

      John H. Brechin, Village Attorney, and Richard N. Williams, both of Oak Brook, for appellants.
    Aldo E. Botti and Peter A. Monahan, both of Botti, Marinaccio & Maksym, Ltd., of Oak Brook, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, board of fire and police commissioners of the village of Oak Brook, appeals from an order of the circuit court which reversed the decision of the board that plaintiff, Benjamin Savaglio, be discharged from his employment as a police officer and ordered his reinstatement with back pay. The board contends (1) that its findings and conclusion in the administrative hearing were not contrary to the manifest weight of the evidence, as determined by the trial court; (2) that the introduction of polygraph evidence at the administrative hearing was not reversible error; and (3) that the trial court exceeded its authority in ordering plaintiff reinstated and awarding him back pay. The board also appeals from an order of the trial court which awarded plaintiff attorney fees incurred in pursuit of a rule to show cause against the board for its alleged contempt in failing to comply with the order of reinstatement.

On December 28, 1981, charges were filed by the chief of police with the board against plaintiff which stated that on October 14, 1981, while on duty, plaintiff, without authority, entered a vehicle parked on private property, thus committing criminal trespass to a vehicle (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 2); tampering with a motor vehicle (Ill. Rev. Stat. 1981, ch. 951/2, par. 4 — 102(a)(2)); and official misconduct (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3). It was also charged that plaintiffs unauthorized entry of the vehicle violated certain rules and regulations of the village of Oak Brook police department.

In hearings conducted by the board, it was disclosed that Christopher Higgins owned an inoperable 1978 Ford van which he stored on the parking lot of his employer, Champion Auto Parts Rebuilders in Oak Brook. Higgins worked on the van in his spare time using his employer’s tools, and it had been parked on the lot for about 10 months. On October 13, Higgins worked on the van from 5 until 7:30 p.m., and he testified that he left three sets of socket wrenches in the unlocked van. He stated that when he returned the next day after 5 p.m., the wrenches were missing and that they were valued at about $250. As there had been numerous thefts in and around the premises, the parking lot was surveyed by video cameras which, at intervals, recorded views of the area. Higgins viewed the tape for the night of October 13, and it revealed that an Oak Brook squad car had appeared in the parking lot at 1:10 a.m., 1:21 a.m., 3:10 a.m. and 5:58 a.m. On two of the observations of the squad car it had its headlights out and on one occasion it stopped near the van for about a minute. The quality of the tape was not good, and it did not show anyone enter or go near the van that night. The tape did show several other persons and vehicles around the van during the day; the tape was removed about 2:30 p.m. on October 14 and no further surveillance was done until after discovery of the alleged theft.

Higgins called the police and filed a theft report. He expressed the opinion that a policeman must have stolen the tools because a squad car was observed to have stopped near the van with its lights out. Lieutenant Janik interviewed all officers working the 11 p.m. October 13 to 7 a.m. October 14 shift and determined the only officer in the lot during that period was plaintiff.

On October 22, plaintiff was called to Lieutenant Janik’s office and questioned whether he had made patrol trips to the lot and if he had done so at any time without headlights. Plaintiff responded that he had patrolled the lot and did drive through it with his headlights off and stopped next to a white van. Plaintiff stated that he looked inside the van and saw an engine, parts and some tools. He told Lieutenant Janik that he took nothing out of the van and inquired what was wrong. Lieutenant Janik then advised plaintiff that he had a video tape which had been reviewed by the victim who claimed he was missing tools from the van; he did not ask plaintiff why he had entered the van. Janik testified at the hearing that plaintiff’s demeanor was not “normal” during the interview and he had determined that plaintiff should be ordered to take a polygraph examination. Plaintiff first declined to submit to it, but after being advised by the police chief that he would be terminated if he refused, the test was conducted. At the hearing, the polygraph examiner testified it was his opinion there was evidence of a purposeful noncooperation by plaintiff throughout the test which indicated that he was not telling the truth.

Lieutenant Janik also testified that the police radio logs for the shift in question did not show a report by plaintiff of any unusual incidents at Champions’ lot which, Janik stated, would be the proper practice for an officer upon leaving his vehicle to investigate or to enter a suspicious car. Lieutenant Janik stated that police department procedure regarding searches of or entry into motor vehicles requires that an officer transmit that information to the commanding officer in the police station. He noted that plaintiff also failed to file a written report. Other officers testified that it was customary to call the base on the radio if action was to be taken with regard to an incident and that a written report would thereafter be made.

Plaintiff testified on his own behalf at the hearing that he had observed the van on the lot for over six months and had checked its license and registration 4Nz months previous to the night in question. He stated that as the Champion company had suffered a number of burglaries and thefts, its lot was regularly patrolled by police. While on his second check of the lot on October 14 he thought he saw a movement of shadows or figures out of the corner of his eye in the vicinity of the van. He made a quick right turn and turned off his headlights and then thought he saw movement from the rear of the van. Plaintiff stated he got out of his squad car to check and first looked through the van’s windshield. He observed an engine, some tools and a lumpy black tarp and considered someone could be hiding under the tarp. Plaintiff saw that the door was unlocked and opened it, put his head in and, when he didn’t see anyone, closed the door and left. He testified he took nothing from the van and only put his head inside. On his third cruise of the lot later that morning he again turned his headlights off. Plaintiff stated he was not aware of any department procedure which would require calling in before opening a vehicle door.

In its decision, the board found plaintiff to be guilty of criminal trespass to a motor vehicle for entering the van without authority and guilty of official misconduct for entering the vehicle without consent. In addition, the board found plaintiff guilty of violating rules and regulations of the village police department by entering the van without the owner’s consent and failing to submit a report regarding the entry. In reaching its decision, the board noted that it placed great weight upon the video tape, the immediate report of the theft of tools by Higgins, plaintiff’s failure to call in, and found that plaintiff’s conduct when questioned by Lieutenant Janik was not consistent with his innocence. The board specifically noted that in making its findings it gave no legal consideration to the testimony of the polygraph operator. The board concluded that plaintiff’s continuance in office would be detrimental to the department and ordered his immediate discharge.

On administrative review, the circuit court found that the polygraph test was incompetent and prejudicial and by itself sufficient to require a reversal of the findings and order of the board. The trial court also found that the competent evidence contained in the record of the hearings before the board did not support its findings which were against the manifest weight of the evidence as to all charges for which the board found plaintiff guilty. The court thereupon reversed the order of the board and remanded the cause to it with directions to reinstate plaintiff with back pay. The board appeals.

In arguing that its decision was not contrary to the manifest weight of the evidence heard by it, the board contends that the trial court improperly reweighed the evidence submitted at the administrative hearing and the credibility of the witnesses, substituting its judgment for that of the board.

It is well settled that the scope of judicial inquiry of factual determinations made by an administrative agency is limited to determining whether the agency’s decision was contrary to the manifest weight of the evidence. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115; Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358-59, 307 N.E.2d 371.) While the agency findings are considered prima facie true and correct, they must be based upon facts established by competent evidence. (Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 309, 450 N.E.2d 314, cert, denied (1983), 464 U.S. 960, 78 L. Ed. 2d 335, 104 S. Ct. 391.) Where a crime is charged in an administrative proceeding, the requisite burden applicable to prove such crime is by clear and convincing evidence. (Drezner v. Civil Service Com. (1947), 398 Ill. 219, 227, 75 N.E.2d 303; Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 908, 420 N.E.2d 618, appeal denied (1981), 85 Ill. 2d 575.) An administrative agency’s decision will not be disturbed unless the opposite conclusion is clearly evident and the trial court may not reweigh the evidence. DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 489, 202 N.E.2d 522.

In making its findings, the board noted it placed great weight on certain evidentiary matters:

The video tape of portions of the night of October 13-14, however, offers no evidence of misconduct on the part of plaintiff. While it shows a police vehicle in the lot, plaintiff advised Lieutenant Janik he had patrolled there during that night and he did so before he had been told of the tape or accused of misconduct. Plaintiff’s presence in the lot was in routine performance of his police duties; the record discloses one visit was in response to a false burglar alarm that night. The tape establishes nothing contrary to plaintiff’s account of his activities, although it does demonstrate many other persons were near the unlocked van during the day and did not record anyone entering it.

The fact Higgins promptly reported a theft is irrelevant as plaintiff was not charged with theft. The weight given to that fact suggests, however, the board considered whether plaintiff was guilty of that offense in evaluating the evidence.

Nor did the evidence establish that the department rules and regulations required plaintiff to call in to the station or thereafter file a report after investigation of the van. Although Lieutenant Janik testified that was required, Officer Delise, a training officer for five years, testified he knew of no custom, protocol or directive requiring such action when an officer opened a car door to investigate and nothing was found. Other officers testified there was a custom of reporting an “incident” and calling in where action was taken, but no requirement to call the station before opening a vehicle door. Officer Malee testified he had entered a truck parked on business premises that same night, while on patrol, to locate its identification numbers. Malee later called the station to make a registration check of the truck, action not necessary for plaintiff as he had checked the van’s registration several months earlier. We have also considered the General Orders of the department relied upon by the board and do not find they required plaintiff to call in before examining the van or make a report of his fruitless investigation.

The “not normal” demeanor of plaintiff when questioned by Lieutenant Janik, could not assist the board in evaluating the evidence. He had been ordered in for questioning at the end of his shift and made aware suspicion of theft was directed at him. If plaintiff’s demeanor was not then normal, alternate explanations other than guilt were apparent.

We also find that the evidence was insufficient to support the board’s findings plaintiff committed a criminal trespass of the van or that his actions constituted official misconduct.

The gravamen of the offense of criminal trespass to a vehicle is the knowing entry of the vehicle without authority or the consent of the owner. (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 2; People v. Pettis (1982), 104 Ill. App. 3d 275, 277, 432 N.E.2d 935; People v. Slaughter (1980), 87 Ill. App. 3d 1066, 1068, 409 N.E.2d 508.) Criminal knowledge is an element of the offense, just as it is of theft. (People v. Owes (1972), 5 Ill. App. 3d 936, 938, 284 N.E.2d 465; People v. Chandler (1967), 84 Ill. App. 2d 231, 236, 228 N.E.2d 588.) Where a defendant has entered a vehicle not knowing it was stolen, criminal trespass has not occurred. People v. Posey (1980), 83 Ill. App. 3d 885, 888, 404 N.E.2d 482; People v. Owes (1972), 5 Ill. App. 3d 936, 284 N.E.2d 465.

The evidence here is that plaintiff while on routine patrol in an area where thefts had occurred checked a vehicle near which he believed he saw furtive conduct. On noting the van was unlocked, he opened the door and looked inside to determine if someone was there. These facts do not, in our view, permit the conclusion the police officer thus violated the criminal trespass statute; it is manifest that in the performance of their duties police officers routinely make such investigations and, in these circumstances, a “criminal” knowledge on the part of plaintiff may not be inferred. See People v. Gardner (1984), 121 Ill. App. 3d 464, 459 N.E.2d 676.

Nor does the evidence support the finding of the board that plaintiff was guilty of official misconduct (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3). As the trial court noted “[tjhere is no evidence whatsoever that the police officer knew he was forbidden to perform an act, to-wit, opening a door, nor that he had any intent to obtain personal advantage for himself nor that the act was in excess of his lawful authority as a police officer.” The evidence considered by the board did not establish any mandatory duty which plaintiff failed to perform, a knowing performance of an act forbidden by law or an act done with intent to obtain a personal advantage for himself or another. See People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E.2d 1057.

We conclude that the findings of the board were against the manifest weight of the evidence and were correctly reversed by the trial court.

The board next contends that the introduction of the polygraph evidence was not error as the board stated in its findings that it gave no consideration to it.

In Kaske v. City of Rockford, (1983), 96 Ill. 2d 298, 450 N.E.2d 314, cert, denied (1983), 464 U.S. 960, 78 L. Ed. 2d 335, 104 S. Ct. 391, our supreme court held that polygraph evidence was inherently deficient and was inadmissible in an administrative proceeding. The introduction alone of such evidence is reversible error. (See also Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 121, 429 N.E.2d 901, appeal denied (1982), 91 Ill. 2d 557.) The trial court correctly held in the present case that the introduction of polygraph evidence at the hearing also required reversal.

The board’s contention that the trial court exceeded its authority in ordering plaintiff reinstated and awarded back pay is meritorious. As this court noted in Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App. 3d 8, 438 N.E.2d 685, rev’d on other grounds (1983), 96 Ill. 2d 252, 449 N.E.2d 845:

“The administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 274) sets forth the powers of the trial court. While the court can affirm or reverse a Board decision, we can find no authority for the trial court to order reinstatement without a Board hearing. Further, because the record contains no evidence regarding salary, back pay, benefits or set-offs, the court was without authority to enter an order in that regard. [Citations.] The trial court lacked jurisdiction to order Kloss reinstated or to award him back wages.” (108 Ill. App. 3d 8, 14, 438 N.E.2d 685, 689-90.)

(See also Drezner v. Civil Service Com. (1947), 398 Ill. 219, 231, 75 N.E.2d 303; Dorner v. Civil Service Com. (1980), 85 Ill. App. 3d 957, 963, 407 N.E.2d 750; Basketfield v. Daniel (1979), 71 Ill. App. 3d 877, 880, 390 N.E.2d 492, appeal denied (1979), 79 Ill. 2d 609.) That portion of the trial court’s order must be vacated.

The board finally contends the trial court erroneously awarded his attorney fees to plaintiff for costs incurred in presenting a petition for rule to show cause directed to the board when it refused to reinstate plaintiff after judgment below.

The trial court stayed its judgment as to plaintiff’s back pay after the board filed a notice of appeal to this court, but denied the board’s request for a stay of that portion of the judgment directing plaintiff’s reinstatement and set a hearing date for his petition for rule to show cause. When this court thereafter entered an order staying the entire judgment, the trial court discharged plaintiff’s petition, but awarded him the attorney fees incurred in its preparation.

Where there has been a finding of civil contempt, a court may order reimbursement of the complainant’s attorney fees incurred in bringing the violation to the court’s attention. (Frank B. Hall & Co. v. Payseur (1981), 99 Ill. App. 3d 857, 862, 425 N.E.2d 1002.) Here, however, the court lacked authority to award reinstatement or back pay to plaintiff, and defendant could not be guilty of contempt for failing to comply with its order. (Faris v. Faris (1966), 35 Ill. 2d 305, 309, 220 N.E.2d 210; People v. Joseph (1982), 105 Ill. App. 3d 568, 570, 434 N.E.2d 453.) The order awarding fees must be vacated.

Accordingly, the judgment of the circuit court reversing the order of the board and remanding the cause is affirmed; in all other respects the judgments are reversed. On remand, the board will consider a request for reinstatement or for back pay, if made by plaintiff.

Affirmed in part; reversed in part; remanded with directions.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.