author: JUSTICE KASSERMAN

text:
    GENERAL ELECTRIC COMPANY, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Marjorie Dixon, Appellee and Cross-Appellant).
    Fourth District (Industrial Commission Division)
    Nos. 4—84—0107WC through 4—84—0109WC, 4-84-0111WC through 4-84-0114WC cons.
    Opinion filed November 27, 1984.
    Rehearing denied January 11, 1985.

      Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville (John F. Martin, of counsel), for General Electric Co.
    James J. Marszalek, of Chicago, for Marjorie Dixon.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Marjorie Dixon, filed an application for adjustment of her claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries suffered while she was employed by respondent, General Electric Company (General Electric). An arbitrator awarded benefits for temporary total disability, finding that Dixon’s condition had not yet reached permanency. The Industrial Commission set aside the arbitrator’s award and substituted in its stead, inter alia, an award for a more lengthy period of temporary total disability and an award for the permanent and complete loss of the use of each arm to the extent of 25%. The Industrial Commission also found an injury to the cervical area of Dixon’s spine. On review, the circuit court of Vermilion County remanded the cause to the Industrial Commission with instructions to make more specific findings of fact. In a second decision, the Industrial Commission again rendered an award for permanent and total loss of each arm to the extent of 25%. The circuit court of Vermilion County set aside the award for permanent and total loss of the use of each arm and remanded the cause for consideration as to what award, if any, should be made with respect to the injury to the cervical area of the spine. On remand, the Industrial Commission, inter alia, found Dixon to be permanently partially disabled to the extent of 12%. The circuit court of Vermilion County confirmed the decision of the Commission. From this decision General Electric appeals and Dixon has perfected a cross-appeal.

Dixon’s application for adjustment of her claim, filed February 19, 1976, states that the “accident” occurred on or about July 31, 1975. Her employment was described therein as lifting and pulling racks, and the injury is described as injury of the left upper extremity and shoulders.

Dixon was the sole witness at the June 14, 1977, hearing before the arbitrator. She testified as follows: She had worked for General Electric for 10 years as of October of 1975. She ordinarily worked on second shift. At the time of the injury, she was on the first shift, doing whatever job needed to be done on a given day, so that her duties varied. On July 31, 1975, a Thursday, she was “racking” as the replacement of an absent employee. Asked what “racking” involved, Dixon replied: “Lifting, we had a rack that holds seven units on a rack. And I had to rack about 46 to 4800 a day.” Each unit weighed approximately 15 pounds. On that day she began “giving out” and dropped some units to the floor. She asked for help, but none was available. She experienced pain while working Friday, the next day. She took Excedrin, which she “always” carried in case of headache. Her testimony is unclear as to whether she felt pain on Thursday. On Saturday, she was awakened by pain in her right hip, and “everything went numb on me.” She telephoned the plant doctor and arranged to be seen by him on Monday.

Asked to explain what job she was doing when injured, Dixon testified that she was “pushing on Friday, and this happened Saturday morning, but it come on me as a result from both lifting and pushing as I put down there [in the statement of claim for benefits]. *** I was racking Thursday, when she was off. And he put me to work in her place, and Friday I was pushing the units after doing all that heavy lifting, so Saturday morning I had a reaction, early Saturday morning.”

The plant doctor treated Dixon for one week, then suggested that she see her family doctor. Meanwhile, she was returned to second shift at work, where she did jobs she could do while seated. She testified that she missed no work time during the next two weeks but that she could not perform her work well. According to Dixon’s testimony, she subsequently saw several other doctors, and medical records in evidence indicate that she was seen by other doctors. Dixon subsequently underwent surgery for both hands for what is elsewhere described as carpal tunnel syndrome, the left hand in March 1976, the right in June 1976. She testified that as of the date of the hearing she continued to experience discomfort involving her back, shoulders, left leg, and both arms and hands. She stated that she did not have these symptoms prior to July 31, 1975, and that she had not worked since August of 1975.

The record on appeal includes the following medical records, among others:

A report by radiologist W. M. McCormack, M.D., dated August 12, 1975, notes “evidence of degenerative disc disease at C5-6 with narrowing of the joint space.” An April 2, 1976, hospital discharge report by Dr. Karasik notes the July 1975 injury at work, complaints of pain and numbness in the left hand and arm, and a “final” diagnosis of “C5-C6 nerve root lesion.”

A record from Lakeview Memorial Hospital, dated August 12, 1975, states that Dixon’s left arm was numb, that this condition had started eight to 10 days ago, that she had pain from the neck into the left arm, and that examination indicated weakness of grip in the left hand.

Following an examination on November 26, 1975, Dr. Bipin Bavishi reported as follows: While at work on July 31, 1975, Dixon was lifting and doing other jobs. She developed numbness in the left thumb, index, middle, and ring fingers. She reported the incident to the nurse and the plant doctor. He treated her for seven days and referred her to Dr. Tanner. He had her neck X-rayed, then referred her to Carle Clinic. After tests, she was told that there was pressure on the nerve at the wrist. Presently, she had intermittent pain and numbness in the left thumb, index finger, middle finger, and ring finger. This also radiates to the forearm and elbow, and there is some neck discomfort.

A report of St. Francis Hospital, Evanston, dated June 1, 1976, states that Dixon was admitted complaining of pain and numbness of the right arm and hand; that she previously underwent carpal tunnel release surgery on her left hand; and that she now felt the same symptoms in her right arm and hand.

A report by Dr. Robert C. Busch following an August 24, 1976, examination after surgery to both of Dixon’s hands refers to the July 31, 1975, injury as part of the history. A diagnosis of “[cjontusion and strain injury cervical area. Left cervical tendinitis [sic]. *** Herniated disc syndrome, cervical area. Carpal tunnel syndrome right and left hand” is noted. The report also notes: “Findings resulting from the injury.” The latter remark is also included in a report following a May 5, 1977, examination; the latter report states essentially the same diagnosis and is signed by Dr. Busch and Dr. Hyman J. Hirshfield.

A letter dated December 5, 1975, from Dr. Robert D. Mussey to General Electric states that it was his “feeling that the complaints in her hand were psychosomatic and I did not advise surgery.”

In a letter dated December 3, 1976, to counsel representing General Electric, Dr. James C. Nauman stated: “Carpal tunnel syndrome is more likely attributable to repetative [sic] activity with' reference to the wrist and hand. It would be difficult to state that the carpal tunnel syndrome as apparently documented previously was specifically related to the injury she describes in July of 1975.”

The seven previous decisions in this cause are as follows:

(1) The arbitrator’s decision of June 20, 1977, finding that Dixon’s disabling condition had not yet reached permanency, awarded benefits for temporary total disability and noted that proceedings for further benefits for temporary total disability or for permanent disability would be allowed. The arbitrator’s decision made no reference to the nature of Dixon’s injury, i.e., whether the wrists or cervical spine were involved.
(2) Dixon and General Electric both petitioned for review. The Commission, in addition to an award for a period of temporary total incapacity for work, found that Dixon had sustained a permanent loss of use of both arms to the extent of 25% of each. In this decision, dated July 31, 1978, the Commission did not specify the nature of Dixon’s injury, i.e., whether the wrists or cervical spine were involved.
(3) General Electric petitioned the circuit court of Vermilion County for review of the July 31, 1978, decision of the Commission. In a decision dated April 6, 1979, the circuit court set aside the decision of the Commission and remanded for further proceedings. In so concluding, the circuit court found that “cervical nerve root syndrome” and carpal tunnel syndrome had been diagnosed. The court further found that no sudden trauma appeared to have caused the “disc injury”; however, that injury had not been present prior to July 31, 1975, and thus the events of that date could properly have been found to have caused that injury. As to the carpal tunnel syndrome, however, the court stated its inability to understand the basis for the Commission’s implicit decision that the disability arising out of that condition was compensable. The court remanded for findings of fact as follows:
“If there was a determination of a connection between the carpal tunnel syndrome and the disc injury then the basis should be set forth. If it was based upon judicial knowledge, then the basis of that judicial knowledge should be set forth. If it was based upon judicial knowledge and there is no basis for that knowledge, then additional evidence on that issue may be heard. If the carpal tunnel syndrome is not related to the cervical disc problem and is based upon some other reason, then that reason should be set forth.
If the determination is made that there was no connection shown between industrial injury and the carpal tunnel syndrome, then the Commission should amend the award.”

Neither party appealed from this decision.

(4) On remand, the Commission again found, in a decision dated May 30, 1980, that Dixon had sustained the permanent and complete loss of use of both arms to the extent of 25% of each. The prior award for temporary total disability was adjusted to correct a prior error as to the weekly rate thereof. The Commission also found that on July 31, 1975, Dixon was pushing and lifting objects weighing approximately 15 pounds on a repetitive basis and as a result sustained injury to both the cervical area and to the wrist area of each upper extremity; and that said trauma aggravated a preexisting arthritic condition and caused herniation of the intervertebral disc at “C5-C6” and a carpal tunnel syndrome in both wrists. As a basis for its findings, the Commission indicated that it relied upon: (a) Dixon’s testimony as to the history of the July 31, 1975, accident; (b) the absence of any evidence of record of prior symptoms of the disabilities upon which the claim is based; (c) the findings of the treating doctor made soon after the accident; (d) the steady progression of Dixon’s symptoms after the accident; (e) the findings and conclusions by examining doctors for both parties; (f) the lack of any clear opinion against causal connection with respect to the claimed injuries by any doctors involved, although all were aware of the claimed work-related etiology; and (g) the Commission’s expertise regarding this type of injury and the nature of the trauma described.
(5) General Electric petitioned for review, and the circuit court, in an order dated May 28, 1981, set aside the Commission’s decision of May 30, 1980. The court found that the Commission’s finding that Dixon’s carpal tunnel syndrome was caused by the described accident was contrary to the manifest weight of the evidence; the award for permanent and complete loss of use of the right and left arm to the extent of 25% of each and for temporary total disability and medical expenses associated therewith was therefore set aside, and the cause was remanded for a determination as to what, if any, award should be made concerning the injury to the cervical area. The order also stated that because all matters had not been determined with finality, the court would not certify the cause for appeal to the supreme court pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).
(6) In its decision on second remand, dated October 19, 1982, the Commission found Dixon to be entitled to compensation for a reduced period of temporary total disability and for a reduced amount of compensation for medical expenses. The Commission found Dixon to be permanently partially disabled to the extent of 12%. The Commission further stated:
“However the Commission would note its continuing disagreement with the order of Judge Lund stating that the Commission’s finding of causal connection between Petitioner’s carpal tunnel syndrome and resultant medical expenses, temporary total and permanent disability and her accident on July 31, 1975, was against the manifest weight of the evidence.”
(7) Dixon and General Electric petitioned for review of the Commission’s October 19, 1982, decision. The circuit court of Vermilion County confirmed that decision. Both parties appeal to this court.

General Electric urges that the Commission should have found that Dixon’s wrist and cervical spine injuries did not arise out of and in the course of her employment. Dixon disagrees and contends in her cross-appeal that the May 30, 1980, decision of the Commission should have been confirmed.

The claimant has the burden of proof that his employment was a causative factor with respect to his physical disability. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 261, 461 N.E.2d 1363, 1364.) The question of fact of causal relationship is peculiarly within the province of the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. (CertiServe, Inc. v. Industrial Com. (1984), 101 Ill. 2d 236, 244, 461 N.E.2d 954, 958.) It is for the Commission to draw reasonable inferences and conclusions from competent evidence, and this court will not discard permissible inferences drawn by the Commission merely because it might have drawn other inferences from the facts. Caterpillar Tractor Co. v. Industrial Com. (1984), 124 Ill. App. 3d 650, 653, 464 N.E.2d 1097, 1099.

We agree with the position advanced by petitioner, Dixon, in her cross-appeal, i.e., that the May 30, 1980, decision of the Commission was not contrary to the manifest weight of the evidence. General Electric argues that the only proof of an “accident” was Dixon’s testimony that she “was giving out” on Thursday, July 31, 1975, and dropping lighting units and that on the following Saturday she noticed pain and numbness. However, Dixon also testified that she felt pain on Friday. Furthermore, Dr. Bavishi’s report describes the nature of the tasks Dixon was doing on the date in question, then states that Dixon developed numbness in the thumb and three fingers of her left hand. While none of this evidence taken alone is ideal proof of an accident, together it was sufficient to sustain Dixon’s burden of proof on the issue of whether there was an “accident.”

General Electric also urges that the proof that Dixon’s disability was caused by the claimed accident was insufficient. We disagree. General Electric fails to note any lay testimony or medical evidence contradicting the Commission’s conclusion as to causation. While General Electric argues that Dr. Busch’s opinion does not display the requisite degree of medical certainty, it is well established that a finding of causal relationship may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. (Mason & Dixon Lines, Inc. v. Industrial Com. (1983), 99 Ill. 2d 174, 182, 457 N.E.2d 1222, 1226; Caterpillar Tractor Co. v. Industrial Com. (1984), 124 Ill. App. 3d 650, 654, 464 N.E.2d 1097, 1100.) General Electric also suggests that there was no proof of any incident traceable to a definite time or place, nor any “sudden” giving way of a body structure. However, there need be no external violence to the body to constitute an accidental injury, and compensation may be allowed where one’s existing physical structure, whatever it may be, gives way under the stress of one’s usual labor. Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296, 300, 128 N.E.2d 718, 720; At lantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 141, 364 N.E.2d 83, 85.

General Electric urges numerous easily distinguishable cases for comparison. In Caterpillar Tractor Co. v. Industrial Com. (1983), 98 Ill. 2d 400, 456 N.E.2d 1366, unlike the instant case, the claimant had never stated that he had experienced a work-related injury, nor did he so report to his personal physician or treating specialist; and the medical reports of his physician and surgeon showed no opinion that his condition of ill-being was causally connected to any work-related activity. In Johnson v. Industrial Com. (1982), 89 Ill. 2d 438, 433 N.E.2d 649, none of the medical evidence nor any of the “numerous” medical reports in evidence expressed an opinion that the claimant’s condition was, or could have been, caused as she had claimed. In Caterpillar Tractor Co. v. Industrial Com. (1980), 83 Ill. 2d 213, 414 N.E.2d 740, the claimant’s testimony as to causation was contradicted by her prior inconsistent written statement and was not supported by medical evidence of any kind. In International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 305 N.E.2d 529, the expert medical testimony relied upon by the claimant indicated that the claimant would have had emphysema regardless of his employment, and there was evidence that he had suffered from emphysema prior to the claimed date of injury. In Boland v. Industrial Com. (1966), 34 Ill. 2d 422, 216 N.E.2d 152, the claimant continued to do the same work for several months after the accident claimed to have been the cause of shoulder bursitis and arthritic changes, and, although the other shoulder was not involved in the accident, it showed a similar disability.

In the instant case, none of the medical opinions as to causation are negative; there was no evidence that Dixon’s condition predated the claimed accident; Dixon promptly sought medical assistance; medical reports reveal the claimed accident as part of her history; no inconsistent statements on her part are shown; Dixon has not worked since immediately after the claimed injury. Therefore, the decision of the Commission is not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Vermilion County is reversed, and the decision of the Industrial Commission rendered in this cause on May 30,1980, is reinstated.

Circuit court reversed; Industrial Commission confirmed.

BARRY, LINDBERG, McNÁMARA, and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
      In re ESTATE OF FLORIAN BAJONSKI (William Manhart, Petitioner-Appellant, v. Andrew Bajonski, Adm’r of the Estate of Florian Bajonski, et al., Respondents-Appellees).
    First District (2nd Division)
    No. 83—2866
    Opinion filed November 20, 1984.
    Rehearing denied January 8, 1985.

      Keith A. Ligón, of Chicago, for appellant.
    Sneider & Troy, of Chicago (Richard J. Troy and William G. Hutul, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

On November 1, 1983, the probate division of the circuit court entered an order granting the motions of Andrew Bajonski, administrator of the estate of Florian Bajonski, and Elizabeth Bajonski Harper, heir, to dismiss with prejudice the petition of William Manhart to complete contract of decedent. The. court ruled, as a matter of law, that the contract entered into between Manhart and the decedent required the personal service of the decedent and, consequently, terminated upon his death.

Florian Bajonski died on December 18, 1979, and Andrew Ba-jonski was appointed administrator of the estate. An asset of the estate which forms the subject matter of this litigation is an oil painting known as “The Convinced St. Thomas.” Manhart claims that, on December 15, 1978, prior to Florian Bajonski’s death, he and Florian Ba-jonski had entered into an agreement that was modified on May 28, 1979, in reference to the painting. The agreement purports to give Manhart the exclusive right to sell the painting, receiving a percentage of the sale price as payment for his services. The pertinent provisions of the December 15, 1978, agreement provide as follows:

“I. F. Bajonski hereby give and grant William Manhart exclusive right of sale of my Rembrandt painting entitled [illegible-said to read “The Convinced St. Thomas]. The terms of such sale, encluding [sic] the price shall be subject to my acceptance, there of upon the closing of said sale I shall pay you from the proceeds 10% of gross net price.
Is/ Florian B. Bajonski.”

The agreement was modified on May 28, 1979, as follows:

“In the above contract William Manhart and Florian Bajonski agree to raise the percentage to 20% as of May 28, 1979, due to the fact that William Manhart will be responsible for all expenses connected with this painting as of May 28, 1979. Exclusive begins as of May 28,1979 and ends upon sale of painting.
I si William H. Manhart I si Florian B. Bajonski.”

The record discloses that the primary purpose of the above agreements was to authenticate the painting as a work by the master Rembrandt and to then secure a buyer for the authenticated painting. Neither the authentication nor the sale were completed during the lifetime of Florian Bajonski. Manhart’s petition to complete contract alleges expenditures of $13,613.66 prior to Bajonski’s death, apparently spent by Manhart in his effort to authenticate the painting, and a total of $83,397.00 spent at the time the petition was filed on March 28, 1980.

Subsequent to Florian Bajonski’s death on December 18, 1979, the administrator of his estate entered into a written agreement with Manhart on June 30, 1980, though neither of the copies in the record is signed or executed by either party. This agreement provides in part:

“Whereas, the Estate does not admit the enforceability or legal validity of the aforesaid purported agreements [Manhart’s prior agreements with Florian Bajonski], but is nevertheless willing to establish a viable contractual relationship with Manhart.”

The agreement also provided Manhart with the exclusive right to authenticate and sell the painting, similar in most respects to the prior agreements, at 20% commission. The duration of the agreement was two years ending July 1, 1982. The agreement further secured Manhart’s right to his commission, under stated circumstances, if the painting was sold or donated after termination of the agreement.

On May 11, 1982, the administrator petitioned the circuit court for permission to allow Manhart to exhibit the painting at the World’s Fair in Tennessee. The order granted Manhart permission to exhibit the painting and, during the exhibition of the painting, the agreement between the administrator and Manhart was extended through October 31, 1982, to coincide with the conclusion of the fair.

On March 28, 1983, Manhart filed his petition to complete contract of decedent; in it he outlined the sums expended as a result of the contract, alleged that the value of the painting had increased substantially and that the administrator had refused to acknowledge the validity of the agreement and had interfered with Manhart’s exclusive rights acquired under the agreements.

The administrator filed a motion to dismiss Manhart’s petition, though it is not clear from the face of the pleading whether it was filed as a “Motion with respect to pleadings” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615) or as an “Involuntary dismissal based upon certain defects or defenses” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619). The administrator sought a dismissal because the alleged contract between Manhart and the decedent was personal in nature and, hence, performance was impossible; the agreement between Manhart and the administrator was a novation; and that Manhart’s petition represented a claim against the estate filed after the six-month statutory time period. Elizabeth Harper, one of the heirs to the estate, also filed a motion to dismiss, pursuant to section 2 — 619, raising the same points as the administrator’s motion, as well as arguing that Manhart’s exclusive right acquired under the extension clause terminated upon the sale of the painting, an event which may never occur. The compulsory performance of the contract required of the administrator could thus prevent the estate from ever being closed, allegedly in derogation of the “precatory” language of section 19 — 10 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. llOVa, par. 19 — 10), whereby contracts of a decedent can be ordered performed by the representative.

At the hearing on the motions on November 1, 1983, the court dismissed with prejudice Manhart’s petition to complete the contract because the language of the agreement, viz, “subject to my acceptance,” called for personal performance by the decedent and, consequently, the contract terminated upon his death. An order was entered that day dismissing the petition, and Manhart appeals therefrom.

The issue presented for review is whether the trial court erred in dismissing with prejudice Manhart’s petition. Initially though, an examination is warranted regarding the form of the motions to dismiss and the manner in which the motions were entertained in the court below. The administrator’s motion is not labeled, whereas Elizabeth Harper’s motion is labeled as a section 2 — 619 motion. The trial court treated the motions as motions to strike and dismiss for failure to state a cause of action, indicative of a section 2 — 615 motion. An analysis of the petition and the motions to dismiss, however, discloses that the proper label for both motions is section 2 — 619 and that the motions should have been so treated by the court below. Under these facts, however, this error does not impugn the integrity of the trial court’s decision.

The trial court dismissed the petition because the contract required personal performance by the decedent and therefore terminated upon his death, an allegation included in both motions to dismiss. Under section 2 — 619(a)(9), an action may be dismissed if the claim is “barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1983, ch. 110, par. 2— 619(a)(9).) An affirmative matter within the meaning of that section is “ ‘ “something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” ’ ” (Bertling v. Roadway Express, Inc. (1984), 121 Ill. App. 3d 60, 63, 459 N.E.2d 265, quoting Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 96, 405 N.E.2d 1256.) Discharge of one’s contractual obligations because of death is “in the nature of a defense” that negates the alleged cause of action when the person who died was the one required to render the personal performance. The law in this State is settled that contracts requiring the continued existence of a particular person or thing terminate upon the death or destruction of that person or thing. (People ex rel. Palmer v. Peoria Life Insurance Co. (1941), 376 Ill. 517, 521, 34 N.E.2d 829; Martin Emerich Outfitting Co. v. Siegel, Cooper & Co. (1908), 237 Ill. 610, 615-16, 86 N.E. 1104.) Thus, in the case of a personal service contract, as the trial court here found, the contract terminates upon the death of the party required to render the services. (C. L. Smith v. Preston (1897), 170 Ill. 179, 184-85, 48 N.E. 688.) Consequently, even though this matter was not treated as a section 2 — 619 matter below, it is properly reviewed by the appellate court as such. See Hudson v. Mandabach (1959), 22 Ill. App. 2d 296, 160 N.E.2d 715.

Manhart argues that the present motions must be treated under section 2 — 615 because no supporting affidavits were filed with either motion to dismiss. Pursuant to section 2 — 619(a), however, affidavits are only required when the grounds for dismissal do not appear on the face of the pleading being attacked. (Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 643, 450 N.E.2d 1360.) The allegation of a personal service contract in this case is premised on the allegations of Manhart’s petition, including, and most importantly, the language of the contract attached to Manhart’s petition. Therefore, no affidavits were required.

It only remains to determine whether the trial court was correct in holding that this contract required the personal service of the decedent. When reviewing the propriety of a dismissal, the appellate court is concerned only with questions of law. (Circle Security Agency, Inc. v. Ross (1981), 99 Ill. App. 3d 1111, 1114, 425 N.E.2d 1283.) The trial court here construed the contract as being personal in nature as to the decedent. The cases are legion holding that the construction of a contract, that is, the determination of the legal effect of the contract, is purely a question of law when the contract is unambiguous. (See, e.g., United Farm Bureau Mutual Insurance Co. v. Elder (1980), 89 Ill. App. 3d 918, 921, 412 N.E.2d 630.) Similarly, whether a contract is ambiguous, thereby capable of being understood in more than one sense, is also purely a question of law. (Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 1015-16, 452 N.E.2d 667.) A thorough review of the contract in question and the relevant case law indicates that the contract was not ambiguous and that the trial court’s determination was correct.

The trial court found the contract to be personal as to the decedent because of the language “subject to my [the decedent’s] acceptance.” The general rule is that a contract survives the death of a party (Smith v. Wilmington Coal Mining & Manufacturing Co. (1876), 83 Ill. 498, 500) except, as stated above, when the contract requires the continued existence of a particular person or thing for its performance. In those cases, there is always an implied condition that the death or destruction of that person or thing excuses further performance. (Vogel v. Melish (1964), 31 Ill. 2d 620, 624, 203 N.E.2d 411.) The contract in the present case is clearly one of a personal nature as to the decedent.

The language “subject to” generally indicates that a party’s promise is not to be performed unless a condition occurs. (17 Am. Jur. 2d Contracts sec. 320, at 749 (1964).) The trial court’s construction of that language as a matter of law, in conjunction with “my [the decedent’s] acceptance,” as creating a personal service contract was not improper. In Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615, the trial court had determined as a matter of law, pursuant to a section 45 motion to dismiss (now section 2 — 615), that the language “Our purchase is subject to a definitive Purchase and Sale contract to be executed by the parties” was unambiguous and that a formal, written agreement was a condition precedent to the existence of a binding contract. (85 Ill. App. 3d 1094, 1100.) While there are factual differences between Alagna and the present action, the reasoning of that case is instructive. Alagna countenances the construction of similar contractual language, as a matter of law, without requiring the introduction of extrinsic facts or evidence to determine the intent of the parties. The language here, “subject to my [the decedent’s] acceptance,” is as clear and unambiguous as the language in Alagna. The intent of the parties, determined from the face of the writing, contemplated a sale that had to be accepted by the decedent; his continued existence, therefore, was an implied condition such that when he died, his performance was excused. The anticipated performance in this case required the special qualities and characteristics brought by the decedent to the agreement, namely, his personal satisfaction as to any proposed sale. Since the acceptance required the decedent’s personal taste, skill and judgment, the trial court was correct in dismissing the petition because the personal representative was not at liberty to undertake the execution of such an agreement.

Manhart urged below and here that the terms of the same being “acceptable” to the decedent is a condition able to be satisfied on a reasonable and objective basis — an action easily performed by the administrator. Manhart’s argument, however, fails to evaluate .the word “acceptance” in its full and proper context. This agreement clearly contemplates the satisfaction of the decedent, not any other person. Manhart’s position would be well taken in a case involving an ordinary job relating to mechanical work, construction or building according to some sort of architectural plan. (See Erikson v. Ward (1914), 266 Ill. 259, 264-65, 107 N.E. 593.) However, where the subject of the contract involves personal taste, judgment or other characteristics vested exclusively in one party, an agreement conditioning acceptance on that person’s satisfaction, as here, necessarily makes that person the sole judge as to satisfaction and, consequently, the sole person able to accept performance. In such cases, the question as to the reasonableness of performance according to an objective standard never arises. A person entering into such an agreement cannot later be heard to argue its unreasonableness or the inherent unfairness involved. Wolff v. Smith (1940), 303 Ill. App. 413, 421, 25 N.E.2d 399.

Manhart further argues that he was denied due process of law by the trial court’s alleged consideration of extra-record material improperly before the court when ruling on the motions to dismiss. A thorough review of the pleadings and record indicates that Manhart’s argument is without merit.

For the above reasons, we find that the dismissal of the petition was proper. The decision of the lower court is therefore affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT JONES, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2000
    Opinion filed November 27, 1984.
    Rehearing denied January 8, 1985.

      Steven Clark and Karen Michels, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank G. Zelezinski, and Robert J. Prendergast, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In 1977, Robert Jones (defendant) was convicted of the murders of Samuel and Campbell Thompson and sentenced to a term of 100 to 300 years in the Illinois Department of Corrections. Defendant’s convictions and sentence were affirmed by this court in his direct appeal (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112).

In February 1982, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.). Simultaneously, defendant filed an indigency petition and motion for appointment of counsel in which he requested appointment of an attorney who is “a member of the Illinois Bar Association, defínate [sic] not a Public Defender, for a [period] of at least five (5) years.” The case was assigned to Judge Bailey, who had presided over defendant’s trial. The State moved to dismiss the petition. Judge Bailey assigned the public defender’s office to represent defendant.

In June 1983, defendant filed a pro se “Motion for substitution of Judge for Cause” wherein he alleged the trial court was prejudiced against him. The sole factual allegation therein was that the trial judge, when sentencing defendant following his trial in 1977, allegedly stated that he “hoped” defendant would die in prison or he “wanted” defendant to die in prison.

In August 1983, the public defender assigned to defendant’s case filed, instanter, a motion for leave to withdraw as counsel. The motion stated that defendant had filed a complaint against counsel with the Attorney Registration and Disciplinary Commission in which he charged that she was “indifferent” to his post-conviction petition. The motion to withdraw further stated that the defendant’s complaint “would make it difficult to continue to represent [defendant] in an unbiased and fair manner.” Attached to the motion was a letter from the commission which advised counsel that the commission had decided “to proceed no further with this matter.”

In support of her motion to withdraw, defense counsel related that she had met with defendant in prison, and that he thereafter refused to respond to a questionnaire she had given him. She stated further that she had been unable to locate a copy of defendant’s trial transcript and that she had been advised that defendant had filed a Federal habeas corpus complaint “and for those reasons I would like to withdraw as counsel in this matter.”

The court then granted counsel’s motion to withdraw and without appointing substitute counsel dismissed defendant’s post-conviction petition.

On appeal, defendant contends that he was denied adequate repite-,. sentation of counsel because defense counsel failed to comply with Supreme Court Rule 651(c), and because the court dismissed the petition at a time when defendant was without counsel.

The State contends that defendant was not denied adequate representation of counsel, but rather that defendant “refused to cooperate with the public defender properly appointed to represent him and that defense counsel’s alleged failure to comply with Supreme Court Rule 651(c) was also the result of defendant’s own lack of cooperation.”

The relevant section of the Act effective at the time of the adjudication of defendant’s petition provided:

“If the [post-conviction] petition alleges that petitioner is *** without counsel and alleges that he is without means to procure counsel *** [and] appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.” (Ill. Rev. Stat. 1981, ch. 38, par. 122-4.)

Under the circumstances of the present case, defendant was entitled to appointment of counsel. People v. Dye (1971), 50 Ill. 2d 49, 277 N.E.2d 133.

The duties of appointed counsel in post-conviction proceedings are addressed in Supreme Court Rule 651(c) which provides, in part:

“The record filed in [the appellate court] shall contain a showing *** that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 87 Ill. 2d R. 651(c).

This rule “explicitly requires a showing that counsel has examined the trial record.” (People v. Brown (1972), 52 Ill. 2d 227, 230, 287 N.E.2d 663.) It is uncontradicted that in the instant case, appointed counsel did not examine the record of defendant’s trial; defendant was therefore deprived of the assistance of counsel as required by this supreme court rule.

We believe also that the trial court erred in dismissing the post-conviction petition at a time when defendant was not represented by counsel. The motion by defendant’s counsel for leave to withdraw was filed instanter on the day the motion was heard. The record reflects no notice of motion addressed to defendant nor does the report of proceedings indicate defendant was ever advised of his attorney’s request to withdraw. Defendant was not in court on the day the motion was heard. In such situations, it has been held that the trial court “should have appointed other counsel or, at the least, determined that defendant did not desire other counsel.” (People v. Partee (1980), 85 Ill. App. 3d 679, 682, 407 N.E.2d 215.) “The failure to adequately notify the defendant of this motion and to give him sufficient time to respond thereto resulted in eifectively depriving him of any representation at the hearing which ultimately ended in the dismissal of his petition.” People v. Sherman (1981), 101 Ill. App. 3d 1131, 1133, 428 N.E.2d 1186.

It is the State’s contention that defendant’s claim of inadequate assistance of counsel is without merit because it “was due to his refusal to cooperate with counsel,” citing to People v. Curtis (1971), 48 Ill. 2d 25, 268 N.E.2d 29. In that case the supreme court held “[w]here a petitioner refuses, as here, to cooperate with counsel he cannot properly complain of possible inadequacy of representation which is attributable to his own deliberate conduct.” (48 Ill. 2d 25, 30.) In Curtis, the court found that defendant had written to his appointed counsel and stated he would not be “compatible” with counsel; refused to give counsel a copy of the trial transcript; and complained to the bar association concerning what defendant believed was counsel’s inadequate representation. In contrast, in the instant case the only facts alleged by counsel as the basis for her motion to withdraw were: (1) that defendant “refused to send in” copies of unspecified questionnaires; and (2) that the defendant had complained to the Attorney Registration and Disciplinary Commission that counsel appeared “indifferent” to his case because, since her appointment as counsel more than 10 months before, she had failed to consult with him despite several requests from defendant, and had merely continued his case seven times. We do not find these two facts sufficient to establish a refusal by defendant to cooperate. (Compare with allegations of Curtis and People v. Sullivan (1972), 6 Ill. App. 3d 814, 286 N.E.2d 605, where the defendant refused to speak with his appointed counsel and refused to allow them to amend his pro se post-conviction petition.)

For the aforestated reasons, we find that defendant was denied his right to counsel, and this case must be reversed and remanded for further proceedings.

We observe that an indigent defendant does not have a right to appointment of counsel other than a public defender. He is entitled to appointment of an attorney other than a public defender “only upon a showing of good cause *** and, in the absence of a showing of good cause, it is within the trial court’s discretion to deny such a request. [Citation.]” People v. Drew (1976), 36 Ill. App. 3d 807, 810, 345 N.E.2d 45.

We note that the provisions of the Post-Conviction Hearing Act have been substantially amended since the adjudication of defendant’s petition. The newly amended provisions will control subsequent proceedings in this case. (People v. Ward (1984), 124 Ill. App. 3d 974, 464 N.E.2d 1144.) While at the time of the adjudication of defendant’s petition the appointment of counsel was mandatory, this no longer applies. Newly enacted section 122 — 2.1 of the Act now provides:

“(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry,
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122— 6.
(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122 — 2.1.)

Section 122 — 4 now provides:

“If the petition is not dismissed pursuant to Section 122 — 2.1, and alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, and the petition is not dismissed pursuant to Section 122 — 2,1, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.” (Additions underscored.) (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122 — 4.)

Thus, in the instant case, whether defendant is entitled to appointment of counsel will depend upon, inter alia, the trial court’s adjudication pursuant to section 122 — 4.

Defendant has urged in this appeal that the trial court erred in failing to rule on defendant’s motion for a substitution of judge. We note that newly enacted section 122 — 8 of the Act mandates that post-conviction proceedings “shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction.” (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122 — 8.) We therefore find it unnecessary to address defendant’s contention that the trial judge should have ruled on defendant’s motion for substitution of judge.

For the aforestated reasons, the trial court’s order dismissing defendant’s post-conviction petition is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STAMOS and DOWNING, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN CLARK et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 82—2414 and 83—381, cons.
    Opinion filed November 26, 1984.
    Rehearing denied January 17, 1985.
    James J. Doherty, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Edward A. Stephens, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, judgment was entered on defendants’ convictions of attempted murder and murder. Defendant Kent Clark was sentenced to concurrent terms of imprisonment of 40 years for murder and 20 years for attempted murder. Calvin Clark and Dwayne Moorehead were each sentenced to concurrent terms of 35 years for murder and 20 years for attempted murder. On appeal, defendants contend: (1) They were denied their right to present a defense and confront witnesses, and (2) they were not proved guilty of murder beyond a reasonable doubt.

We affirm.

Sharvis Pipes, Bobby Pipes and Leroy Morffett suffered gunshot wounds during a shooting incident which occurred at about 7 p.m. on March 23, 1982, in the 1500 block of South Drake in Chicago. Leroy Morffett died in April 1982. In addition to the charges of attempted murder and aggravated battery arising from the shooting of Sharvis and Bobby Pipes, defendants were also charged with the murder of Leroy Morffett.

At trial, Geneva Morffett, wife of the deceased, testified that as she and her husband stepped onto the porch of their home, she saw a large crowd standing nearby and heard several gunshots. A bullet grazed her left arm, and her husband was shot in the abdomen. Mr. Morffett was hospitalized because of his injury and was released from the hospital on April 9,1982. Mrs. Morffett did not see the gunman.

Brian Ashford and Terrence Harris testified they were playing basketball in the alley behind the 1500 block of South Drake when four men walked past them. Ashford recognized all three defendants, and Harris recognized Kent Clark. The four men stopped where Thomas Harris and Kewane Smith were playing basketball. Ashford testified that Kent Clark placed a gun to Thomas Harris’ head. Ash-ford and Harris saw the four men run into a gangway toward Drake Street. Both witnesses testified they heard gunfire shortly thereafter and ran home.

Thomas Harris testified that on the evening in question, he was playing basketball in the alley with Kewane Smith. Kent and Calvin Clark and two other men ran towards them. Kent Clark aimed a gun at Harris and told him he would shoot if Harris moved. Kent Clark then followed the other three men through a gangway. As Harris ran home, he heard about ten gunshots.

David LeFlore testified that prior to the incident he was standing in front of 1510 South Drake with Sharvis and Bobby Pipes and about 15 other people. Defendants and a fourth person appeared from a gangway and began firing gunshots into the crowd. Each defendant carried a gun. Bobby Pipes was injured and taken to the hospital.

Sharvis Pipes testified a crowd had gathered to watch a fight among several girls. Calvin Clark, Dwayne Moorehead and another person ran from the gangway. Clark and Moorehead were carrying guns. About 15 shots were fired, one of which struck Pipes in his leg. Police took Pipes to the hospital, where he identified Calvin Clark as one of the gunmen. Later at the police station, he identified Moore-head.

Bobby Pipes was also among those who had gathered on the street on the evening in question. He testified that at 7 p.m., Calvin and Kent Clark and two other people ran towards the crowd and began firing guns. Bobby Pipes was shot in his left arm and required surgery to remove the bullet.

Officer Henry Jackson testified he interviewed Sharvis Pipes at Mount Sinai Hospital. Pipes stated he was shot by defendant Calvin Clark. Officer John Kohles testified that after speaking to Sharvis Pipes and Officer Jackson at the hospital, he returned to the scene of the crime, spoke to Kent Clark, and took Kent Clark and two others to the hospital. Sharvis Pipes could not identify any of the three. Later that evening, Sharvis Pipes identified Calvin Clark and Dwayne Moorehead.

Dr. Robert Kirschner conducted a post-mortem examination on Leroy Morffett on April 18, 1982. His internal and external exams revealed that Morffett had suffered recent gunshot wounds to his abdomen, small intestine, colon and liver. The immediate cause of death was the presence of two blood clots in the pulmonary arteries. Kirsch-ner explained that blood clots in the major blood vessels of the lungs completely prevent blood circulation in the lungs and cause immediate heart failure and death. Kirschner testified that the gunshot wound, surgery and prolonged convalescence caused the clots to form. They initially formed in the victim’s left leg and traveled to his lungs.

Defendant Dwayne Moorehead testified he was at home between 5:30 and 8:35 p.m. on the evening in question. He denied involvement in the shooting incident. Defendant’s mother Katherine Moorehead, his sisters Patricia and Jacqueline Moorehead, and his aunt Acerlean Moorehead corroborated defendant’s testimony.

Defendant Calvin Clark testified that he left his girlfriend’s house at 4:30 p.m. He arrived home at about 6:15 p.m. and spoke to his girlfriend 10 minutes later. He denied being present when the crime took place. His girlfriend, Darlisa Miller, corroborated his testimony. His sister, Vivian Clark, and his brother, Charles Clark, testified defendant was home from shortly after 6 p.m. until police arrested him.

Defendant Kent Clark testified he and his friends Dwayne Cook and Raymond Ford were taken into custody at 7:30 p.m. on March 23, 1982. Police took them to the emergency room at Mount Sinai Hospital. Sharvis and Bobby Pipes were in the emergency room and Sharvis told police that Calvin Clark was one of the gunmen. Kent Clark further testified he knew Terrence and Thomas Harris well. He did not see either of them on the evening in question and did not participate in the crime.

Brenda Clark, Kent Clark’s girlfriend, testified that she lived about 21k blocks from the scene of the shooting. Her brother Dwayne and defendant Kent Clark were at her home from 5 p.m. until 7:10 p.m. on the day in question playing cards with her. James Cook, Brenda’s father, corroborated the testimony that defendant was at the Cook residence between 5 and 7 p.m.

Defendants were found guilty of attempted murder and aggravated battery of Sharvis and Bobby Pipes and the murder of Leroy Morffett. The trial court vacated defendants’ convictions of aggravated battery upon a finding that they merged into the attempt convictions.

On appeal, defendants first contend they were denied their constitutional right to present a defense and confront witnesses where the trial court granted the State’s motion in limine to prevent defendants from testifying or questioning witnesses about membership in street gangs. They maintain the evidence was relevant to the issue of credibility.

In opposing the State’s oral motion in the trial court, defendants argued that one of the Pipes was a member of a gang which had been involved in an altercation with defendants earlier on the day in question. To retaliate against defendants, the victims deliberately lied about the identities of their assailants. Additionally, defendants argued that evidence of the victims’ gang membership was an important factor for the jury to consider in assessing the credibility of the witnesses. After reviewing a preliminary hearing transcript in which one of the victims apparently admitted gang membership, the trial court granted the State’s motion. It found that gang membership was irrelevant to any issue in the case.

Before granting a motion in limine, the trial court must be certain that such action will not unduly restrict the opposing party’s presentation of its case. (People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837, citing Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268.) Nevertheless, the use of such motions is encouraged in criminal cases to exclude collateral or extraneous matters. (People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804.) The decision to limit cross-examination is within the discretion of the trial court, and a conviction will not be reversed unless the trial court’s decision resulted in manifest prejudice to the accused. People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804.

In this case, we find no abuse of discretion. As noted by the trial court, the primary issue in the case was identification, and the relevancy of the victims’ gang membership to this issue was highly speculative. Furthermore, defendants were not precluded from presenting evidence of the altercation which allegedly took place earlier in the day and which allegedly motivated the victims to intentionally misidentify their assailants, but defendants chose not to introduce such evidence. Under these circumstances, defendant cannot claim prejudice. See People v. Grady (1982), 107 Ill. App. 3d 970, 438 N.E.2d 608.

Second, defendants contend they were not proved guilty of murder beyond a reasonable doubt where the State failed to prove a causative relationship between the gunshot wound and the pulmonary embolism causing Leroy Morffett’s death. They argue that Dr. Kirschner’s conclusion on the cause of death was not supported by medical facts and was thus insufficient to prove causation.

The State is not required to prove that defendants’ acts were the sole and immediate cause of death; rather, it is sufficient to show that the acts were a contributing cause such that death did not occur from a source unconnected with defendants’ acts. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 432 N.E.2d 1316; People v. Brown (1973), 9 Ill. App. 3d 730, 293 N.E.2d 1.) Here, Dr. Kirschner testified his autopsy revealed that Morffett had suffered serious gunshot wounds. He detailed the surgical repairs required by the injuries and stated that prolonged bed rest is required after such surgery. Kirschner further testified that a person who has suffered injuries requiring surgery and prolonged convalescence may develop blood clots which ultimately cause his death. This evidence was sufficient to prove that death occurred from a source connected with defendants’ acts.

Defendants rely on People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459, in support of their argument. In Brown, the court reversed a murder conviction because the State failed to prove a relation between defendant’s act and the cause of death. The court held that reversal was required because there was no evidence of an autopsy, no description of the physical condition of the deceased at the time of death, and no explanation of the reasons for the cause of death. Unlike Brown, the State in this case elicited evidence of an autopsy, the physical condition at the time of death, and the reasons underlying the cause of death. Thus, Brown is inapposite.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE WHITE

text:
    STEVEN SWIETON, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—1319
    Opinion filed December 5, 1984.

      Neville, Pappas & Mahoney, Ltd., of Chicago (George Pappas, of counsel), for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellees city of Chicago and Chicago Fire Department.
    Jacobs, Burns, Sugarman & Orlove, of Chicago (Robert S. Sugarman and Stephen B. Horwitz, of counsel), for appellee Chicago Fire Fighters Union, Local 2.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Steven Swieton, initially brought this action against the city of Chicago, the Chicago fire department, William Blair, the fire commissioner, and James R. Fahey, the director of personnel of the fire department (hereinafter sometimes referred to collectively as City), alleging that he had been wrongfully discharged from his employment as a fire fighter with the department and seeking reinstatement and back pay. Subsequently, the trial court determined that the Chicago Fire Fighters Union, Local No. 2, International Association of Fire Fighters, AFL-CIO, the collective bargaining agent representing fire fighters employed by the department, was a necessary party and ordered that the union be joined as a defendant. Pursuant to that order, Swieton filed his second amended complaint, adding the union as a defendant and alleging, in part, that the union breached its duty under the collective bargaining agreement between the union and the city, to provide him with fair representation throughout the grievance procedures. Thereafter, the trial court granted motions to dismiss filed by both the union and the City, ruling that Swieton failed to exhaust the internal union appeals procedures under the constitution of the International Association of Fire Fighters and that the allegations of the second amended complaint, that the union breached its duty of fair representation, were couched in conclusory terms, and were not sufficient to state a cause of action against the union. Swieton now appeals from the order dismissing the second amended complaint as to the City and the union.

The second amended complaint alleges that Swieton was employed as a fire fighter by the Chicago fire department; that during the fire fighters’ strike of 1980, a fire occurred on February 14, 1980, at 4144 North Kenmore in Chicago; that this fire was investigated by the internal affairs division of the department; that on March 5, 1980, and on at least one occasion thereafter, the supervisor of the internal affairs division of the department, who held the rank of captain, sought the cooperation of Swieton, then a member of the department, in the investigation of the fire; that on March 5, 1980, and on at least one occasion thereafter, this captain, who was responsible for conducting the investigation, informed Swieton’s attorney that Swieton’s position as a fire fighter in the department would be secure and Swieton would not be disciplined or discharged if he cooperated with the investigation and provided certain information concerning his knowledge as to how the fire started; that this captain assured Swieton’s attorney that Swieton would remain employed as a fire fighter in the department if he cooperated in the investigation and prosecution of the individuals responsible for starting the fire; that Swieton, through his attorney, relied on these representations and promises; that Swieton cooperated fully in the investigation of the parties responsible for setting the fire; that Swieton was never charged with a criminal offense in connection with the fire; that contrary to the aforementioned representations, defendant Fahey notified Swieton that he was discharged from his employment as a fire fighter in the department; that Swieton, as a member of the union, sought reinstatement to his position through the three-step grievance procedure of the collective bargaining agreement between the city of Chicago and the union; that Swieton advised the union of the promises made to him; that the union employed the first two steps of this grievance procedure in an effort to have Swieton reinstated to his position, but the City and department refused to reinstate Swieton; that only the union or the City had the power to invoke arbitration under the third step of the collective bargaining agreement. With respect to arbitration, the second amended complaint alleges:

“18. The Union, without any explanation to plaintiff for its decision, has wrongfully refused to invoke arbitration as set forth in Step III of said agreement *** even though plaintiff has made oral and written demands upon the Union *** that it invoke arbitration on behalf of plaintiff so that he is afforded a hearing by the American Arbitration Association concerning the propriety of defendant’s decision to discharge plaintiff.
19. Plaintiff has made every effort to exhaust all grievance and arbitration procedures as set forth in said collective bargaining agreement, but the Union has wrongfully refused to process plaintiff’s grievance under Step III of the collective bargaining agreement. Furthermore, the Union has breached its duty to represent plaintiff fairly in the resolution of plaintiff’s grievance with the other defendants.”

In the prayer for relief, Swieton asked for both reinstatement to his position as a fire fighter and compensation for lost wages from the time of his discharge from employment.

The trial court dismissed the second amended complaint for the reasons stated at the outset of this opinion. We first consider the trial court’s ruling that the allegations regarding the union’s breach of its duty to provide representation were couched in conclusory terms and were not sufficient to state a cause of action against the union. We disagree.

Section 13.3 of collective bargaining agreement between the union and the city describes the union’s duty of fair representation. It provides:

“The Union recognizes its responsibility as bargaining agent and agrees to fairly represent all employees in the bargaining unit without discrimination, interference, restraint or coercion. The Union’s duty of fair representation shall be carried out in conformity with the standard enunciated by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171.”

In Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903, the Supreme Court stated:

“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. ***
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.” (Vaca v. Sipes (1967), 386 U.S. 171, 190-91, 17 L. Ed. 2d 842, 857-58, 87 S. Ct. 903, 916-17.)

(See also Archie v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (7th Cir. 1978), 585 F.2d 210, 219-20.) Moreover, “[m]ere negligence cannot rise to the level of misconduct necessary to support an action for breach of the Union’s duty of fair representation.” Hoffman v. Lonza, Inc. (7th Cir. 1981), 658 F.2d 519, 523.) According to the Seventh Circuit’s opinion in Hoffman, conduct which is merely negligent is not arbitrary, discriminatory or in bad faith. 658 F.2d 519, 523.

In our opinion, Swieton’s second amended complaint alleges more than mere negligence, and pleads sufficient facts which, if proved, would support an inference of discrimination and bad faith in the union’s handling of this grievance. The second amended complaint alleges that the union was made aware during the initial stages of the grievance procedure that Swieton was promised that he would not be fired from his job if he cooperated in the arson investigation and that Swieton cooperated fully in the investigation. It alleges that the union, at plaintiff’s insistence, employed Steps I and II of the collective bargaining agreement grievance procedure in an effort to have plaintiff reinstated to his position, but that the City has failed to reinstate him, and that Swieton made repeated demands upon the union to invoke Step III, so that he would be afforded an arbitration hearing by the American Arbitration Association on the propriety of defendant’s decision to discharge plaintiff but the union did not do so; and the union never gave Swieton any explanation for its decision not to invoke arbitration. Moreover, exhibits attached to the second amended complaint would support a conclusion that Swieton’s grievance was processed in a perfunctory fashion. They tend to establish that, although under the collective bargaining agreement the union had 15 days to invoke arbitration after Step II of the grievance procedure was denied, it was not until after the 15-day period had expired that the union grievance committee met to consider arbitration of the grievance, and it was not until four days after this meeting that Swieton received a letter from the union indicating that the union would not seek arbitration.

In short, we are of the opinion that under the allegations of the second amended complaint, facts could be proved which would establish that the union breached its duty of fair representation. Accordingly, we conclude that the trial court erred in ruling that the allegations of the second amended complaint concerning the union’s breach of its duty of fair representation were not sufficient to state a cause of action.

We next consider the trial court’s second reason for granting the motions to dismiss, i.e., that Swieton failed to exhaust the internal union appeals procedure. The constitution of the International Association of Fire Fighters in article XVIII, sections 3, 4 and 5, provides a three-step procedure to be followed in appealing a decision of a local union. These steps are: appeal to the international president; appeal to the executive board; and appeal to the international convention. Swieton argues that under the facts and circumstances of this case, exhaustion of these internal union remedies should not be required to get judicial review of the decision of Local No. 2 not to invoke arbitration.

Although Swieton does not appear to dispute that exhaustion of internal union remedies is generally required, he relies upon Clayton v. UAW (1981), 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088, to argue that the exhaustion requirement can and should be excused in the instant case. In Clayton, the United States Supreme Court held that where internal union appeals procedure cannot result in a reactivation of the employee’s grievance or an award of the complete relief sought in his suit under section 301 of the Labor Management Relations Act, exhaustion will not be required with respect to either a suit against the employer or a suit against the union. In reaching this holding, the court stated:

“[Cjourts have discretion to decide whether to require exhaustion of internal union procedures. In exercising this discretion, at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing of his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks under sec. 301; and third, whether exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee’s failure to exhaust.” 451 U.S. 679, 689, 68 L. Ed. 2d 538, 548-49,101 S. Ct. 2088, 2095.

The City and the union contend that Clayton is not applicable to the instant case because it “involved issues arising under federal labor law and did not seek to address the question of labor relations in the public sector — which is exclusively an area of local — not federal — concern.” Although we may not be bound by the Supreme Court’s decision in Clayton, we believe that the public policy of Hlinois supports the Supreme Court’s recognition of the discretion of courts to excuse the requirement of exhaustion of internal union procedures. Accordingly, we believe that the Illinois courts should consider the factors set forth in Clayton in deciding whether to require exhaustion of internal union procedures.

Swieton contends that all three of the factors stated in Clayton are present in the instant case. We, however, do not consider whether the first and third factors exist in this case, because we are of the opinion that the second factor clearly exists and that is sufficient to excuse Swieton’s failure to exhaust the internal union procedures.

In this action, Swieton seeks reinstatement as well as monetary relief. While we cannot say whether monetary relief may be had through the internal union procedures, it is clear that the union, through its internal procedures, could not reinstate Swieton in his job. Thus, the internal procedures could not award Swieton all the relief he seeks. Moreover, the length of time it would have taken Swieton to exhaust the internal procedures would bar him from receiving an arbitration hearing because the collective bargaining agreement requires that arbitration be invoked within 15 days after Step II is denied. Since Swieton could not obtain under the internal procedures either the substantive relief he seeks or reactivation of his grievance, we believe that requiring exhaustion of these procedures would be a useless gesture. It would delay judicial consideration of Swieton’s action, but would not eliminate it, because the employee would still be required to pursue judicial means to obtain the relief he seeks. {Clayton v. UAW (1981), 451 U.S. 679, 693, 68 L. Ed. 2d 538, 551, 101 S. Ct. 2088, 2097.) Accordingly, we conclude that the trial court abused its discretion by ruling that Swieton was required to exhaust the internal union appeals procedure under the union constitution.

The City and the union argue, however, that this court can affirm the judgment of the court below if that judgment is supported by any reason appearing in the record, regardless of whether the particular reason given by the trial judge was correct or sound. Accordingly,-they argue that the union’s refusal to arbitrate was manifestly reasonable and that they were entitled to summary judgment. In this regard, they observe that the union had moved for summary judgment in the court below. The trial court never passed on the union’s motion for summary judgment because it granted motions to dismiss filed by both the union and the City. Moreover, it is unclear from the record whether Swieton had adequate opportunity to respond to the motion for summary judgment before the trial court decided to grant the motions to dismiss. Under these circumstances, we decline to address this issue at this time.

Lastly, we address the City’s argument that if we reverse the trial court’s order dismissing Swieton’s complaint, we should also hold that if the trial court on remand finds a breach of the duty of fair rep-reservation, then the propriety of the decision to discharge Swieton must be determined by arbitration.

We find the decision of the United States Supreme Court in Vaca v. Sipes instructive on this issue. In that case, the Supreme Court stated:

“We think that another situation when the employee may seek judicial enforcement of his contractual rights arises if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. ***
*** [W]e think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” (Vaca v. Sipes (1967), 386 U.S. 171, 185-86, 17 L. Ed. 2d 842, 855, 87 S. Ct. 903, 914.)

We think that this position allowing judicial enforcement of contractual rights is sound, and accordingly we reject the City’s argument. Moreover, the City’s argument assumes that the trial court will find that the union breached its duty of fair representation. If this finding is ultimately made, we are concerned that the union may not adequately represent Swieton at an arbitration hearing.

For the aforementioned reasons, the judgment of the trial court is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.

      Other pleadings state that Swieton cooperated in the prosecution of two striking firemen charged by indictment with arson and that these individuals were convicted.

      Section 10.2 of the collective bargaining agreement, in relevant part, provides:
      “Step III. If the grievance remains unresolved within fifteen (15) business days after the reply of the Fire Commissioner is due, either party may, by written notice to the other party, invoke arbitration.”
      We believe that this sentence should read as if there was a comma after the word “unresolved.”

      See Note 2.

      See Note 2. We also observe that the City would not have invoked arbitration within the 15-day period.


author: JUSTICE O’CONNOR

text:
    FELICITAS CAMARILLO, Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2798
    Opinion filed December 10, 1984.
    Loyola University Community Law Center, of Chicago (Susan Burzawa, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Chicago (Paul P. Biebel, Assistant Attorney General, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Felicitas Camarillo, brought this action for administrative review seeking to reverse a decision by the defendant Board of Review of the Department of Labor (Board), which denied her unemployment insurance benefits. The trial court affirmed the Board’s decision and entered judgment in its favor on October 19, 1983. Plaintiff now appeals.

Plaintiff worked for Saga Food Services (Saga) from August 14, 1978, until December 11, 1980. During her employment with Saga, she performed a variety of food preparation duties, and during the final six months of her employment, worked preparing salads. On December 10, 1980, plaintiff was assigned to the dishroom for 40 minutes per day, in between her salad-making duties. She objected to the change in job duties and quit her job that same day.

Plaintiff filed a claim for unemployment insurance benefits and was determined eligible on May 18, 1981. The determination by the adjudicator stated that plaintiff’s reason for leaving was for good cause and attributable to her employer. It is undisputed that Saga received notice of this determination, and that, pursuant to section 800 of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 470), the appeal period for Saga expired on June 17, 1981. The record contains only a memo dated June 22, 1981, filed on Saga’s behalf by Rosalind Mason, an employee of Saga’s representative, Gates, McDonald & Co. (Gates), which refers to an attached “original appeal letter” dated June 17, 1981, also written by Mason, in which plaintiff’s social security number was allegedly incorrectly stated. Each of these documents is stamped “received” on June 26, 1981, by the home office of the Department of Labor’s Division of Unemployment Insurance. Accompanying the documents is Gates’ mailing envelope postmarked June 22, 1981. The record also contains a notice of reconsideration and appeal completed by the Department of Labor, which cites the date of filing of Saga’s appeal as June 22,1981.

A hearing on the matter of Saga’s appeal was held on July 16, 1981, at which time the referee stated that the issues before him were the timeliness of the appeal and plaintiff’s involuntary leaving. Present at the hearing were Christian Mets, a representative of Gates, Judy Plate, plaintiff’s direct supervisor, plaintiff and plaintiff’s husband.

Mets was questioned first as to the timeliness issue. He stated that he was not aware that the Gates appeal envelope contained in the record was postmarked on June 22. He then testified generally as to the usual mailing procedures at Gates. In response to questioning as to company policy for mailing letters postmarked on a particular day, Mets stated only that he “believed” it was the policy to mail such letters on that same day. He admitted, however, that it was possible for a letter dated one particular day to be mailed the next day. The record contains no evidence of Mets’ position or job duties at Gates, nor does it contain any basis for his testimony as to Gates’ mailing procedures. At no time did Mets even suggest that he was in any way involved in the handling of correspondence at Gates or that he had any basis for familiarity with the appeal letter in question.

Plaintiff and her supervisor were then questioned as to the conditions which preceded plaintiff's leaving her job with Saga. Plaintiff testified that she had left once previously due to multiple job pressures and her inability to take breaks or lunches, and had returned based on representations that her working conditions would improve. Plate testified that plaintiff’s newly assigned dishroom duties were actually intended to ease plaintiff’s workload. At the conclusion of the hearing, the referee set aside the adjudicator’s determination and concluded that plaintiff had failed to show that the work duties assigned to her were unsuitable, and that she therefore left without good cause attributable to the employer.

Plaintiff made a timely appeal to the Board, claiming that Saga’s appeal to the referee was not timely and that she did not receive a fair hearing. The Board summarily adopted the findings of fact and decision of the referee. Plaintiff then instituted this action for administrative review. Oral arguments were heard and on October 19, 1983, the circuit court affirmed the decision of the Board.

On appeal, plaintiff again raises as issues the timeliness of Saga’s appeal and the denial of her right to a fair hearing. We find that the record lacks substantial evidence to support the referee’s determination that Saga’s appeal was timely filed, and we therefore reverse.

The Illinois Unemployment Insurance Act provides that “[u]n-less the claimant or any other party entitled to notice of the claims adjudicator’s ‘finding’ or ‘determination’ *** within 30 calendar days after such notification was mailed to his last known address, files an appeal therefrom, such ‘finding’ or ‘determination’ shall be final as to all parties given notice thereof.” (Ill. Rev. Stat. 1981, ch. 48, par. 470.) This paragraph, which sets forth the time limitations for appeals, is mandatory rather than directory. Hernandez v. Department of Labor (1981), 83 Ill. 2d 512, 517, 416 N.E.2d 263.

Defendant argues that the hearings referee, because he decided the merits of plaintiff’s claims, was undoubtedly satisfied that the appeal was timely and that such actions by the hearings referee constituted findings of fact by an administrative agency which are to be taken as prima facie true and correct. Although defendant’s assertion has a certain surface appeal, we overturn those “findings of fact” on administrative review because we find that they lack substantial foundation in the record and are contrary to the manifest weight of the evidence. Francois v. Regional Board of School Trustees (1981), 97 Ill. App. 3d 112, 424 N.E.2d 617, appeal denied (1981), 85 Ill. 2d 564; Dugan’s Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 371 N.E.2d 1116.

It is well established that mere evidence of office custom, standing alone without corroboration, is insufficient to establish a date of mailing. Rather, the law requires evidence of an office custom together with corroborating circumstances relevant to show that the custom has been followed. Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 313, 421 N.E.2d 397, appeal denied (1981), 85 Ill. 2d 565, citing Commonwealth Edison Co. v. Property Tax Appeal Board (1978), 67 Ill. App. 3d 428, 384 N.E.2d 504, appeal denied (1979), 74 Ill. 2d 585.

In the instant case, Mets’ testimony falls far short of the corroborating circumstances requirement cited by the court in Kocourek. Further, because he was not the Gates employee responsible for preparing the appeal letter in question, he would not have been competent to testify as to the mailing particulars of the letter had he attempted to do so. We therefore conclude that the record lacks sufficient evidence to establish the existence of Saga’s timely filed appeal, and that the adjudicator’s determination became final as to the parties involved. Both the referee and the Board therefore lacked jurisdiction to reach the merits of Saga’s appeal.

Based on the foregoing, the decision of the circuit court of Cook County is reversed and remanded with directions to dismiss defendant’s appeal.

Reversed and remanded.

McGLOON and CAMPBELL, JJ., concur.