author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAN SHELBY, Defendant-Appellant.
    First District (5th Division)
    No. 83 — 225
    Opinion filed March 30, 1984.

      David W. Miesmer, of Levine, Wittenberg, Eisner, Newman & Silverman, of Harvey, for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Michael E. Shabat and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was convicted of home invasion, attempt rape, residential burglary and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11, 8 — 4(a), 19 — 3, 10 — 3, respectively), and was sentenced to terms of 20 years for home invasion, 12 years for attempt rape, and 12 years for residential burglary. He was not sentenced for unlawful restraint. On appeal, he contends that: (1) the trial court erred in denying his motion in arrest of judgment because count III of the information failed to state an offense; (2) his identification was not established beyond a reasonable doubt; and (3) he was not proved guilty of the offenses beyond a reasonable doubt. For the following reasons, we affirm the judgment of the circuit court.

The record discloses that between 10:30 and 11 p.m. on September 13, 1982, the complainant, who lived in a house in Dixmoor with her mother and niece, went to bed. She was wearing a short nightgown. Shortly after midnight, she was awakened by pressure on her bed that felt like someone was getting into bed with her. At the time, she was lying half on her back and half on her side. When she opened her eyes, she noticed that her bedroom window, which she had closed before going to bed, was now open. She then turned to look behind her and saw a hand coming down over her face covering her mouth and heard a voice say, “shish.” She screamed and started kicking and swinging at the hand. The person in bed with her was swinging at her in an effort to grab her hands. The struggle lasted between V-h and 2 minutes, after which the person got out of bed and leaped out the window.

The complainant testified that she saw the side of the intruder’s face as he leaped out of the bedroom window which was illuminated by a street light. She described the intruder as a black man, approximately five feet six inches tall with no facial hair, a muscular build, and wearing dark clothes. She later identified defendant as the intruder. Complainant then got out of bed and went to her niece who was in the living room. Her niece tried to shut the bedroom window, but was unable to do so. Complainant then telephoned the police.

Further testifying, complainant stated that after the police took her statement and left, Reginald Fitzgerald, a neighbor, told her that the man he saw running away from her house was Dan Shelby. She went to the police station the next day, viewed a lineup and identified defendant on the basis of his height, hair and arm muscles. She further stated that she knew defendant before the incident and that he lived within four blocks of her house. Complainant was unmarried and never gave defendant permission to enter her house or her bedroom.

On cross-examination, complainant acknowledged that when she was interviewed by the police prior to the lineup, she did not tell them that Dan Shelby was the person who had entered her bedroom. Further, she did not immediately tell her niece that the person in her room was Dan Shelby.

Antoinette Kimmons, complainant’s niece, stated that she had been watching Monday Night Football and fell asleep on the couch in the living room. She was awakened by complainant’s screams in the hallway outside her bedroom. She further stated that complainant told her that someone was in her room and that she sounded frightened at the time she made the statement. Kimmons walked to complainant’s bedroom and tried to close the window, but it would not close.

Reginald Fitzgerald then testified that on the night of September 13, he was sitting in his automobile, in front of his house, smoking a cigarette and listening to the radio with the windows rolled down when he heard noises coming from complainant’s house, followed by screams. He got out of his car and walked toward the front of complainant’s house. When he got to the front walkway, where there was an opening in the hedge, he stopped, and while standing there, he saw a male peek over the hedge to his left. The man was about 15 feet from where Fitzgerald was standing. Fitzgerald was able to view the man’s face for approximately four seconds and recognized him as defendant. Fitzgerald further testified that defendant was wearing a dark colored T-shirt and dark colored pants. Defendant then ran in a northerly direction on the other side of the hedge from where Fitzgerald was standing and Fitzgerald ran after him.

At trial, Fitzgerald identified defendant as the person he saw that night. He further stated that after defendant ran past complainant’s house, he lost sight of him. However, he thought that defendant had run down the gangway next to a house north of complainant’s house. While searching for defendant, Fitzgerald saw Janice Ratliff standing with a group of people on the corner of 142nd and Marshfield. He knew that Ratliff was acquainted with defendant, but did not inform her as to the name of the person he was chasing.

Further testifying, Fitzgerald stated that he was acquainted with defendant and knew where he lived in Dixmoor. In addition, he stated that he had heard certain things about defendant from people in the neighborhood. After losing sight of defendant, Fitzgerald returned the complainant’s house and saw Irene Riley and Hoover Darden walking up the driveway.

On cross-examination, Fitzgerald stated that he recognized defendant when he first looked at him, but the first person he told that night that the person he chased was defendant was a police officer.

Irene Riley, complainant’s mother, testified that approximately midnight, she was standing across the street from her house talking to Hoover Darden, a neighbor, when she saw two boys running down the street. She recognized the second person as Fitzgerald, but did not recognize the first person who she described as five feet tall, with a muscular build, medium afro, and wearing dark clothing. Irene saw the first person run between the two houses just north of her residence. Fitzgerald later returned, crossed the street, and told her to check on complainant because she was screaming. Irene and Darden then went to Irene’s house and saw complainant sitting on the couch, screaming.

Hoover Darden’s testimony was substantially similar to that of Irene. However, he did not give a description of the first man he had seen running except to say that he was a black man.

Albert Romito, a police officer with the sheriff of Cook County, testified as an expert witness based on his experience as an evidence technician. Romito stated that he was contacted by the Dixmoor police and went to the Dixmoor police department where he dusted a pane of glass for fingerprints and lifted four latent prints.

Joseph Mortimer testified as an expert print examiner and stated that he received the four latent prints and three of them were not suitable for comparison, and the one suitable print had not been made by defendant. Mortimer further testified that this latent print was identical to a print of complainant.

Against this evidence, the defense first presented Mildred Shelby, defendant’s mother. She testified that on September 13, 1982, at 11:45 p.m., she was at her house in Chicago Heights when her son, Daniel Shelby, Jr., arrived and entered the kitchen. He then stayed at the Chicago Heights home. He was wearing a beige shirt, blue jeans and blue gym shoes. Approximately 12:30 a.m., she received a telephone call from her son David who was at their other home in Dix-moor. He wanted to talk to his father, thus Mrs. Shelby woke her husband. After speaking to David, her husband called the Dixmoor police station. Approximately 3 a.m., her husband and Daniel left the house.

On cross-examination, Mrs. Shelby stated that the Dixmoor police did not call her house that night and that her son Daniel did not own a dark shirt. Further, she testified that all of Daniel’s clothes were purchased by her and that they were kept in a closet in the Chicago Heights home.

Daniel Shelby, Sr., defendant’s father, testified that he owns two houses, one located in Dixmoor and the other in Chicago Heights. On the night of September 12, he went to sleep about 11 p.m. and was awakened by his wife’s voice on the telephone about 12:30 a.m. He arose and went to the kitchen where he was told that his son David wished to speak to him. After a telephone conversation with David, he called the Dixmoor police department and was told that the police would like to talk to his son Daniel. He further stated that he first saw Daniel that morning when he walked into the kitchen at 12:30 a.m. and that Daniel was wearing a beige shirt and blue jeans.

On cross-examination, Daniel, Sr., testified that his son Daniel lives at the Chicago Heights home, but his younger children, one boy and three girls, live at the Dixmoor home. Further, he stated that he and his wife buy Daniel’s clothes except when he is employed and able to buy his own clothes. He further testified that Daniel Jr. does own some dark shirts.

The jury returned guilty verdicts on all counts. Prior to sentencing, defendant filed a motion in arrest of judgment which challenged count III of the information. The motion was denied, and the court sentenced defendant on all counts except unlawful restraint.

Opinion

On appeal, defendant first contends that the trial court erred in denying his motion in arrest of judgment because the information on the count III attempt rape charge lacked the specificity necessary to charge him with the offense. We cannot agree.

It is well established that where the sufficiency of a charge is attacked in a motion in arrest of judgment, the standard for determining whether the information is deficient is whether the elements of the offense are set out in the information as required by section 111— 3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 3(a); People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891.) This section requires that the charging instrument be in writing, stating the name of the offense and the relevant statutory offenses violated; setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused, if known, or a reasonably certain description. The section is designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to make certain that the charged offense may constitute a bar to subsequent prosecution arising out of the same conduct. (People v. Simmons (1982), 93 Ill. 2d 94, 99-100, 442 N.E.2d 891, citing People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.) An information which charges an offense in the language of the statute is sufficient when the words of the statute so particularize the offense that by their use alone an accused is informed with reasonable certainty of the precise offense charged. People v. Dickerson (1975), 61 Ill. 2d 580, 582, 338 N.E.2d 184.

In the present case, the information charging defendant with the crime stated:

“*** [0]n September 14, 1982, Dan Shelby, Junior, a male person of the age of fourteen years and uowards [sic] committed the offense of attempt in that he, with the intent to commit the offense of rape, attempted to compel one [name omitted], a female not the wife of said Dan Shelby, Junior, to submit to an act of sexual intercourse, by force and against her will.”

To uphold the sufficiency of this information, the State argues that our decision in People v. Testa (1983), 114 Ill. App. 3d 695, 449 N.E.2d 164, involving an identical charging information, is dispositive of the issue. We agree. The charging instrument in Testa read as follows:

“ '*** [0]n January 9, 1980 in Cook County, Illinois Thomas A. Testa a male person of the age of fourteen years and upwards committed the offense of attempt in that he, with the intent to commit the offense of rape attempted to compel one [name omitted] a female not the wife of said Thomas A. Testa to submit to an act of sexual intercourse by force and against her will, in violation of chapter 38, section 8 — 4 Illinois Revised Statutes ***.’ ” (114 Ill. App. 3d 695, 697-98.)

In Testa, we held that our prior decision in People v. Mack (1974), 24 Ill. App. 3d 455, 321 N.E.2d 446, relied on by defendant, was distinguishable due to its peculiar facts. Therefore, we followed People v. Bonner (1967), 37 Ill. 2d 553, 229 N.E.2d 527, and held that the Testa information was sufficient in that defendant was charged with the elements of the offense in the language of the statute, i.e., (1) attempt with intent to commit rape, and (2) a substantial step taken in that direction — the use of force against the complainant’s will.

In Mack, cited by defendant in support of his contention that the information charging him failed to state a cause of action, the charging instrument upon which defendant was convicted was handwritten, filed the day of trial, and failed to meet the requirements of section 111 — 3. In addition, a form, identical to the language in the information in the pending case, was submitted to the trial court and read to the jury. The court in Mack held that the “form” language was sufficient to allege defendant had the specific intent to commit the offense of rape. (People v. Mack (1974), 24 Ill. App. 3d 455, 459, 321 N.E.2d 446.) The record in the pending case is not similar to the confusing record in Mack. However, the information in this case is identical to the information in People v. Testa (1983), 114 Ill. App. 3d 695, 449 N.E.2d 164. Accordingly, we hold that our decision in Testa controls the issue of sufficiency of the information.

In the present case, defendant was charged in the language of the statute with the elements of the offense, i.e., (1) attempt with the intent to commit rape and (2) a substantial step taken in that direction — the use of force against the complainant’s will. (People v. Bonner (1967), 37 Ill. 2d 553, 562, 229 N.E.2d 527.) The information was, therefore, sufficient to allow defendant to prepare his defense and to serve as a bar to future prosecution arising from the same conduct.

Defendant argues that his conviction for attempt rape cannot stand since the state failed to prove beyond -a reasonable doubt that he possessed the specific intent to have sexual intercourse with the victim and that a substantial step was taken toward the commission of the act of rape. We disagree.

The statutory definition of “attempt” is as follows:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).

Defendant was charged with attempting to commit the specific offense of rape. The offense of rape is committed by only one type of activity, sexual intercourse. Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1.

In People v. Bonner (1967) 37 Ill. 2d 553, 229 N.E.2d 527, the court found defendant guilty of attempted rape even though there was no exposure of the genitals or words spoken voicing his intention. There also was no effort made to take the victim’s purse or property. On similar facts, the court in People v. Mayer (1945), 392 Ill. 257, 64 N.E.2d 372, upheld a judgment entered on a jury verdict of guilty for the crime of assault with intent to commit rape, and posed the following rhetorical question:

“Under these circumstances, does the law require the offense to be limited to assault and battery because the intent was not voiced in language, or the victim had not been sufficiently overcome for the assailant’s physical acts to more completely manifest his intentions?” (392 Ill. 257, 259.)

Furthermore, the intention to accomplish intercourse by force and against a female’s will may be inferred by the circumstances surrounding the conduct of the accused, the character of the assault, the nature of the acts done, and the time and place of the occurrence. (People v. Hanley (1977), 50 Ill. App. 3d 651, 659, 365 N.E.2d 676.) Specific intent to rape may be inferred even where the accused did not remove his clothing or the clothing of the victim. (People v. Oetgen (1978), 62 Ill. App. 3d 29, 32, 378 N-.E.2d 1355.) Moreover, the victim’s successful struggle to defeat the assailant’s purposes does not change the nature of the attack or destroy the specific intent to rape. People v. Hanley (1977), 50 Ill. App. 3d 651, 659, 365 N.E.2d 676; People v. Hamil (1974), 20 Ill. App. 3d 901, 314 N.E.2d 251.

The State’s evidence, uncontradicted by any testimony offered by defendant, shows that defendant knew the complainant prior to the incident and that he lived a block and one-half away from her house. He broke into the complainant’s bedroom through a window and got into bed with her while she was asleep. He grabbed her from behind and placed his hand over her mouth ordering her to “shish.” She screamed and started swinging and kicking at his hand. In turn, he was swinging at her in an effort to grab her hands. The struggle in bed went on for Vh to 2 minutes until defendant got out of bed and leaped out of the window. Complainant was able to get a side view of defendant’s face as he leaped out of the bedroom window, well lit by a nearby street light. She stated that the intruder was a black man, wearing dark clothes, approximately five feet six inches tall with no facial hair and a muscular build. Although defendant did not voice his intentions and remained fully clothed, the evidence indicates he knew whose house he was breaking into and also knew the occupant of the room into which he entered.

Reginald Fitzgerald, the complainant’s neighbor, was sitting in his parked car next door to complainant’s house at the time of the incident. When he heard noises and screams coming from complainant’s house, he started walking to the front of the house. When he arrived approximately 15 feet away from the front entrance, he saw defendant peek over the bushes. Because they were standing under two street lights and the light was shining directly on defendant’s face, Fitzgerald had a clear view of defendant. At that point, defendant began to run and Fitzgerald chased him but lost him when defendant ran between two houses. Fitzgerald recognized defendant as being a resident of the neighborhood and when the police arrived, he informed the police that defendant was the assailant.

The next day, the complainant identified defendant in a police lineup on the basis of his height, hair and arm muscles. At trial, both the complainant and Fitzgerald made in-court identifications of defendant as the assailant. Defendant’s mother, however, testified that he arrived home at 11:45 p.m. the night of the incident.

We point out that the assailant entered the complainant’s room through a window. He awakened her as he entered her bed while she was lying half on her back and half on her side. She was dressed in a short nightgown. After opening her eyes she saw a hand coming down covering her mouth and heard defendant say “shish.” A struggle ensued for approximately two minutes until defendant jumped out of bed and leaped out of the window. We further observe that complainant was a woman; defendant knew who she was; the assault was made at approximately midnight in the seclusion of her bedroom; the assault was violent; and the assault only ceased after the complainant successfully fought off defendant. If defendant possessed the requisite specific intent to have sexual intercourse, the act, in view of complainant’s struggle, would obviously have been by force and against her will. All that was required to complete the crime of rape was the consummation. As the aforementioned cases have stated, the facts that the assailant’s intent was not verbalized and the complainant successfully frustrated the assailant’s purpose do not establish a lack' of intent to rape. In our opinion, the very acts to which we have referred constituted the requisite “substantial step” toward commission of the offense of rape. On the basis of such evidence, we believe the jury could reasonably infer beyond a reasonable doubt that defendant intended to rape the complainant. Accordingly, the jury’s verdict should be sustained. We would not be justified in determining that the jury verdict was so palpably contrary to the evidence or unsatisfactory as to indicate that defendant could not have been proven guilty beyond a reasonable doubt on the basis of such evidence. Reviewing courts are not to throw away their common sense when the record clearly demonstrates that the finding of guilty is supported by the evidence beyond a reasonable doubt. People v. Testa (1983), 114 Ill. App. 3d 695, 701, 449 N.E.2d 164.

Defendant’s reliance upon People v. Pitts (1980), 89 Ill. App. 3d 145, 411 N.E.2d 586, in support of his contention that he was not proven guilty beyond a reasonable doubt of attempt rape is misplaced on the ground that Pitts is factually distinguishable from the present case. The court in Pitts determined that the circumstances did not establish an intent to commit the specific offense of rape since defendant made no overt movements toward the victims genital area. Although he threatened to kill the victim if she screamed, he made no reference to sexual intercourse. He obtained sexual satisfaction during the attack in a manner other than intercourse while both he and his victim remained fully clothed. In the pending case, defendant was only prevented from physically manifesting his intent to rape by complainant’s screaming and fighting.

Defendant next maintains that he was not proven guilty beyond a reasonable doubt of residential burglary because the evidence failed to prove that he entered with intent to commit the offense of rape. We find this argument to be without merit in light of our holding affirming the attempt rape conviction. On the basis of the record, defendant’s conviction for residential burglary is upheld because the State proved beyond a reasonable doubt the essential elements of residential burglary which are as follows: (1) knowing and unauthorized entry into the dwelling place of another; (2) with intent to commit therein a felony or theft. Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.

Defendant also argues that he was not proven guilty beyond a reasonable doubt of home invasion because there was no evidence that complainant was injured. Again, defendant’s argument is without merit. The purpose of the home invasion statute is to protect the safety of persons in their homes. (People v. Pavic (1982), 104 Ill. App. 3d 436, 447, 432 N.E.2d 1074.) The statute requires: (1) knowing and unauthorized entry into the dwelling place of another when he or she has reason to know that one or more persons is present; and (2) intentional injury to any person or persons within such dwelling place. Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11.

Here, defendant got into bed behind complainant, placed his hand over her mouth causing her to swing, kick, and scream in an effort to remove his hand. Simultaneously, defendant was swinging at complainant and trying to grab her hands. This was sufficient to cause a battery. (People v. Hamilton (1980), 81 Ill. App. 3d 297, 301, 401 N.E.2d 318.) On the basis of the record, the jury could infer that complainant suffered physical pain during her struggle with defendant and thereby suffered the requisite injury sufficient to find defendant guilty beyond a reasonable doubt of home invasion.

Finally, defendant contends that he was not proven guilty beyond a reasonable doubt because the identification testimony was vague, doubtful and uncertain, particularly in light of his alibi defense. We reject this contention.

Defendant maintains that the testimony presented by complainant lacked credibility because she stated that she was only able to see a profile of the assailant. She described the assailant at trial. However, although she admitted that she had known defendant at the time of the incident, she failed to inform the police that defendant was her assailant when she spoke to them immediately after the incident and on the following day prior to the lineup. Further, complainant admitted that in the description she gave to the police, she stated that the assailant had no facial hair. At trial, however, when confronted with the photograph of the lineup, she selected defendant, who had a moustache, as her assailant. In addition, she admitted that after the police had left her home the night of the incident, Fitzgerald, her next door neighbor, told her that defendant had run from her home. On the basis of this evidence, defendant argues that her later identification of defendant was doubtful and uncertain.

Defendant also points out that Fitzgerald was the only other witness to identify him. Fitzgerald testified that he saw defendant peeking over the bushes in front of complainant’s house. He observed defendant run and pursued him but lost sight of him when defendant ran through a gangway approximately one-half block away from complainant’s home. Although he knew defendant, he never called his name during the time he chased him, and when he met several persons near complainant’s home who knew defendant, he did not ask them if they had seen defendant. Further, Fitzgerald did not tell Irene Riley, complainant’s mother, that defendant was the person he had chased. Therefore, defendant argues that Fitgerald’s identification testimony was too vague and inadequate to establish the identity of defendant as the assailant. Moreover, his alibi testimony established that he was home in Chicago Heights at the time of the incident.

It is well established that where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) The sufficiency, weight and credibility of the identification testimony, as well as all of the other evidence adduced at trial, is a matter to be determined by the trier of fact, and we will not upset its determination unless the evidence of guilt is so unreasonable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. (People v. Barber (1979), 70 Ill. App. 3d 540, 388 N.E.2d 833.) We also bear in mind that any discrepancies or omissions in detail do not destroy the validity of an identification, but rather go to the weight of the testimony and are to be evaluated by the trier of fact. (People v. Mendoza (1978), 62 Ill. App. 3d 609, 378 N.E.2d 1318.) In this regard, it has been recognized that untrained persons may give varying descriptions of another person’s physical characteristics (see People v. Hall (1982), 104 Ill. App. 3d 1064, 433 N.E.2d 1039), and that an identification is not usually made by distinguishing separate features, but by the total impression made upon the witness. People v. Lindsey (1979), 72 Ill. App. 3d 764, 391 N.E.2d 382.

Applying these principles to the case at bar, we believe that the identification testimony presented by the State, if believed by the jury, was sufficient to convict defendant of the offenses. The evidence reveals that two witnesses positively identified defendant. Fitzgerald was positive of his identification of defendant because there was a street light shining on defendant’s face. He informed the police of defendant’s identity and, at trial, made an in-court identification of defendant.

The complainant did not see defendant’s face during the struggle in bed, but she did get a view of his profile when he leaped out of the window, which was illuminated by a street light. The next day she identified defendant in a police lineup on the basis of his height, hair and arm muscles. At trial, she also made an in-court identification of defendant.

Against this evidence, defendant presented alibi testimony by a member of his family which was introduced to show that he was at home in Chicago Heights at the time of the occurrence. The trier of fact is not required to accept defendant’s alibi testimony over the positive testimony by the victim even if the alibi testimony was given by a greater number of witnesses. (People v. Taylor (1981), 99 Ill. App. 3d 15, 424 N.E.2d 1246.) After thoroughly reviewing the record, we find that the inconsistencies noted by defendant are insufficient to raise a reasonable doubt of his guilt, and that there was sufficient evidence to sustain the verdict beyond a reasonable doubt.

For the aforementioned reasons, the judgment of the circuit court is affirmed. The State’s request to assess defendant $50 in costs for defending this appeal is granted. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    JACQUELYN WILBUR, Plaintiff-Appellant, v. THOMAS POTPORA et al., Defendants-Appellees.
    First District (4th Division)
    No. 83 — 33
    Opinion filed March 29, 1984.

      Farrell, Edgerton & Hatfield, of West Chicago (Michael P. Edgerton, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Jacquelyn Wilbur, and defendants, Thomas Potpora and Roger Warning, entered into an installment sale agreement whereby plaintiff agreed to sell and defendants agreed to buy four franchises. As consideration for the agreement, defendants gave plaintiff a down payment and signed a promissory note for the balance of the purchase price, to be paid in monthly installments.

After paying one installment, defendants halted further payment, having concluded that plaintiff had fraudulently misrepresented certain facts concerning the franchises.

Plaintiff filed suit for the balance due on the note. Defendants in turn filed a countercomplaint charging fraudulent misrepresentation. Defendants moved for a directed verdict at the close of plaintiff’s case, and their motion was granted. Plaintiff’s appeal followed.

We affirm in part, reverse in part and remand for a trial on the merits.

Facts

On December 28, 1977, plaintiff agreed to sell and defendants agreed to buy four franchises to publish T.V. Facts, a weekly booklet that lists scheduled television programs and is distributed free to the public. Revenue from a franchise is derived from the sale of advertising space in the booklets.

After a series of meetings in which plaintiff presented to defendants certain financial statements, customer lists and memoranda indicating the revenue generated by the franchises over the past several years, the parties entered into an installment contract in which defendants agreed to pay $90,000 for the rights, title and interest to the franchises. As evidence of past business income, and to aid in securing financing of the purchase, defendants took one of the customer lists supplied by plaintiff to defendants’ bank. Defendants were able to secure a $35,000 bank loan, $30,000 of which defendants gave to plaintiff as a down payment on the purchase. A payment schedule for the balance of the purchase price was evidenced by a promissory note, executed simultaneously with the agreement, in which defendants agreed to pay $1088.08 each month for five years at an annual interest rate of seven percent. The note, signed by defendants, was attached to the last page of the installment agreement.

In January 1978, defendants timely paid the first installment. Thereafter, having concluded that plaintiff had misrepresented her ownership of the franchises, the number of paying customers purchasing advertising space from the franchises, and, correspondingly, the true incoming revenues, defendants refused to pay further installments. On November 17, 1978, after defendants failed to respond to two written demands for payment, plaintiff filed suit in the law division of the circuit court of Cook County. The original complaint was later amended to include a request for injunctive relief and was thereupon transferred to the chancery division.

Defendants filed an answer to plaintiff’s complaint, generally denying all allegations and raising the affirmative defense of fraud in the inducement of the agreement. Defendants also filed a countercomplaint, seeking damages from plaintiff for fraudulent misrepresentation and breach of contract.

On December 16, 1982, counts I and II were tried before the trial judge sitting without a jury. Following opening statements, the court heard plaintiff’s case which consisted of the testimony given by plaintiff, by Walter Eisin, the attorney who represented plaintiff following the sale of T.V. Facts to the defendants, and by defendant, Thomas Potpora, called as an adverse witness. Plaintiff then rested her case. Defendants thereupon moved for a directed finding based on the ground that plaintiff had failed to prove she had performed her part of the T.V. Facts contract and had thus failed to establish a prima facie case of breach of contract. Plaintiff argued that the action was on the promissory note and not on the agreement, and that because she had established a prima facie case on the note, it was not proper to direct a verdict for the defendants at the close of her case. The trial court granted defendants’ motion for a directed verdict in their favor. Defendants thereupon took a voluntary nonsuit on the counterclaim.

This appeal followed.

Opinion

Where defendants move, as they did in the trial court, for a directed verdict under section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110), the trial judge must first determine, as a matter of law, whether plaintiff made out a prim a facie case. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 45.) Before the trial court can make this determination, it must first interpret the nature of the cause of action before it.

In the instant case, the lower court found that (1) the present action sounded in contract, and (2) that plaintiff failed to show she performed her part of the contract out of which the action arose. Correctly reasoning that performance of contractual conditions is one of the essential elements of a breach of contract action (Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943, 946, 428 N.E.2d 1028, 1031), and that a directed verdict in favor of the defendants is justified when plaintiff fails to prove an element essential to establish a prima facie case (Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App. 3d 110, 118, 367 N.E.2d 203, 208), the trial court granted defendants’ motion for a directed verdict at the close of plaintiff’s case.

Where a trial court sitting without a jury has ruled on a defendant’s motion for judgment at the close of plaintiff’s case, a court of review should not reverse the trial court’s ruling unless it is manifestly erroneous. (Kellman v. Arthur Rubloff & Co. (1979), 68 Ill. App. 3d 799, 803, 386 N.E.2d 502, 505.) While we find that the trial court’s determination of the nature of the action is not manifestly erroneous, we must necessarily find that, in light of Supreme Court Rule 133(c) (87 Ill. 2d R. 133(c)), the lower court’s decision to grant defendants’ motion for a directed verdict is.

Uniform Commercial Code section 3 — 307(2) (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 307(2)), sets forth the requirements necessary to establish a prima facie case on a promissory note. (Leopold v. Halleck (1982), 106 Ill. App. 3d 386, 389, 436 N.E.2d 29, 31.) “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 307(2).) Plaintiff relies upon this standard in asserting that the present action is on the note rather than on the contract. A closer examination of this standard as applied to the facts of the instant case reveals, however, that while this standard is indeed correct, it cannot be met here.

The word “instrument” as used in the Uniform Commercial Code means a negotiable instrument. (Ill. Rev. Stat. 1983, ch. 26, par. 3— 102(l)(e).) Any writing, to be a negotiable instrument, must be payable either on demand or at a definite time. (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 104(l)(c).) An instrument is payable at a definite time if, by its terms, it is payable on or before a stated date or at a fixed period after a stated date (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 109(l)(a)), or at a definite time subject to any acceleration (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 109(c)). Thus, absent an acceleration clause, a note is due and owing on the date on which it matures. (Mid-States Finance Co. v. Redman (1969), 111 Ill. App. 2d 107, 113-14, 248 N.E.2d 789, 793.) Correspondingly, the right or cause of action of a holder of a note accrues against a maker only when the note matures. Massman v. Duffy (1946), 330 Ill. App. 76, 85, 69 N.E.2d 707, 711.

In the instant case, the promissory note upon which plaintiff claims this action is based was to mature on or before five years from December 28, 1977, namely, December 28, 1982. The complaint in the present suit was filed prior to November 17, 1978, over four years before the note matured according to its terms. Moreover, as plaintiff’s counsel admitted at oral argument and as is readily apparent on the face of the note itself, the note contains no acceleration clause which would provide for automatic acceleration upon default in the payment of an installment. (Mid-States Finance Co. v. Redman (1969), 111 Ill. App. 2d 107, 113-14, 248 N.E.2d 789, 793.) It is clear then that at the time the instant suit was filed, a cause of action on the note had not accrued to plaintiff. However, because the complaint does allege the essential elements of a contract claim and in order to permit the controversy to be determined on its merits, we affirm the trial court’s finding that the instant action sounds in contract. Borushek v. Kincaid (1979), 78 Ill. App. 3d 295, 397 N.E.2d 172, 173.

Thus affirming the trial court’s finding as to the nature of the instant action, we turn to the pleadings to determine their sufficiency. Alleging one of the essential elements in a breach of contract action, plaintiff, in her complaint, stated that she had “performed all the conditions on his [sic] part under the terms of the contract.” This allegation triggered the application of Supreme Court Rule 133(c) (87 Ill. 2d R. 133(c)), which reads as follows:

“In pleading the performance of a condition precedent in a contract, it is sufficient to allege generally that the party performed all the conditions on his part; if the allegation be denied, the facts must be alleged in connection with the denial showing where in there was a failure to perform.”

Defendants responded to plaintiff’s allegation of performance with a general denial, stating only that “Defendants deny the allegations contained in Paragraph No. 4 of Plaintiff’s Amended Complaint Count I and demand strict proof thereof.” Defendants allege no facts in connection with the denial showing how plaintiff failed to perform, thereby failing to satisfy Supreme Court Rule 133(c) (87 Ill. 2d R. 133(c)).

A general denial to an allegation of the performance of a condition precedent is treated as an admission of performance. (Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 669, 422 N.E.2d 1011, 1018.) Because defendants in the instant case responded to plaintiff’s allegation of performance with a general denial, their denial acted as an admission of plaintiff’s performance. Overlooking this legal effect, the trial court found that plaintiff (1) failed to present any evidence showing that she had performed, and (2) consequently failed to make out a prima facie case of breach. Based upon these findings, the lower court granted defendants’ motion for a directed verdict at the close of plaintiff’s case. In light of Supreme Court Rule 133(c) (87 Ill. 2d R. 133(c)) and the legal effect of defendants’ failure to carry out the requirements of that rule (Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 669, 422 N.E.2d 1011, 1018), we must find that the trial court’s granting of defendant’s motion for a directed verdict was manifestly erroneous and reverse the decision of the lower court.

Where a directed verdict for the defendant is reversed, the matter will be remanded to proceed as though the motion had been denied. (People v. Morris (1978), 60 Ill. App. 3d 1003, 1008, 377 N.E.2d 210, 214; 87 Ill. 2d R. 366(b)(3)(iii).) In remanding the present case, we note certain problems posed by the pleadings related to the relief sought which, while not affecting our decision here today, require clarification and are best addressed on remand by the trial court.

Defendants in the present action assert an affirmative defense and bring a countercomplaint on the grounds of fraudulent misrepresentation, claiming that both the agreement and the promissory note were induced by certain fraudulent facts presented by plaintiff concerning the status and number of paying customer accounts and her ownership of the franchises. A false statement of material fact as inducement for the execution of a promissory note (Barrow v. Phillips (1928), 250 Ill. App. 587, 595), or a contract (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 439, 437 N.E.2d 817, 821), is procurement by fraud. One induced to contract through fraud may at his election rescind the contract and recover the consideration that he has paid or affirm the contract and recover the difference between the property received and what he would have received but for the fraud. (In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570, 378 N.E.2d 1345, 1351.) If the defrauded party elects to rescind, he must place the other party in status quo by restoring the property that he has accepted. 62 Ill. App. 3d 563, 570-71.

It is not clear from the pleadings in the present case whether defendants are electing to affirm the contract and sue for damages on the basis of the tort of misrepresentation, or to rescind the contract and cancel the note. Moreover, it is unclear what property has been received by whom, who presently holds title to the property, and who presently has possession. These factual and legal ambiguities impede the trial court’s ability to justly and finally resolve this case and obscure the practical effect of any future judgment rendered.

For these reasons, we feel that a proper trial on the merits is in order and, accordingly, we remand for such proceedings. On remand, defendants may move to reinstate their countercomplaint.

Affirmed in part, reversed in part, and remanded.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BARTLETT, Defendant-Appellant.
    Second District
    No. 83 — 96
    Opinion filed April 11, 1984.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Richard Bartlett, appeals from an order of the circuit court of Du Page County denying his petition for habeas corpus relief brought under the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 10 — 124(2)).

On June 1, 1979, defendant was convicted of the offense of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)) and on August 7, 1979, was sentenced to incarceration with the Department of Corrections for a term of four years to four years and one day. Notice of appeal was filed August 21, 1979, and defendant’s conviction and sentence were affirmed by this court on December 12, 1980 (People v. Bartlett (1980), 91 Ill. App. 3d 138). Defendant’s petition for leave to appeal was denied by the Illinois Supreme Court on March 30, 1981 (83 Ill. 2d 571), and the supreme court issued its mandate to this court on April 23, 1981. Our mandate was issued April 29, 1981, and filed in Du Page County on May 1,1981.

Defendant thereafter remained free on his appeal bond, and on July 15, 1982, the State’s Attorney moved to remand the defendant for commencement of sentence pursuant to our mandate. Defendant appeared that day, the mittimus was stayed, and the matter was continued. On August 12, 1982, defendant filed a petition for habeas corpus relief. In his petition, he did not challenge the validity of his conviction and sentence, but he alleged that, after the mandate issued, he received no communication from the court or the State’s Attorney’s office relative to surrendering himself and received such notice only after he went to the county clerk’s office in June 1982 and informed them that he did not actually serve four years in the penitentiary as their records apparently showed. During that time, he stated, there had been substantial changes in his life, which he set forth, and to require him to return to the penitentiary 15 months after the issuance of the mandate would result in a substantial denial of his constitutional rights of due process of law.

The State filed a motion to deny the petition on the basis that there had been no substantial changes in his life so as to entitle him to discharge. The State maintained that to allow the defendant to go free without serving his sentence would be to reward him for an oversight which occurred because he had been granted the privilege of being released on appeal bond. A hearing was held on November 23, 1982.

At the hearing, no testimony was taken but both sides agreed as to the facts presented by the defense, which basically expanded on the allegations of the petition. However, the defense added the new and significant facts that, after the mandate issued, the defendant was aware it had issued and that he had lost his appeal, but his attorney told him that he was going to “take it up further,” and defendant was never aware that he should surrender himself. The trial judge found that, under the circumstances, jurisdiction to enforce the sentence properly imposed was intact, and the habeas corpus petition was denied.

On appeal, defendant argues that the State’s 14-month delay, following the circuit court’s receipt of this court’s mandate, in notifying him to surrender himself from bail pending appeal, during which time he lived a law-abiding and productive life, entitled him to be discharged from custody. He relies in the main on People ex rel. Millet v. Woods (1973), 55 Ill. 2d 1, and People v. Ripa (1983), 115 Ill. App. 3d 1. We find this case to be distinguishable from Millet and Ripa and affirm the trial court order denying defendant’s petition for habeas corpus relief.

We agree with the conclusion in Ripa that the standards set forth in Millet are dispositive: the reasonableness of a delay and adequacy of its explanation must rest upon examination of the circumstances of each case (People ex rel. Millet v. Woods (1973), 55 Ill. 2d 1, 4). In Millet, the unexplained passage of time of almost five years between the filing of the supreme court mandate in the appellate court and the filing of the appellate court mandate in the circuit court was an extraordinary circumstance requiring careful scrutiny. The State had the responsibility to move that the appellate court mandate be spread of record in the circuit court and was less than diligent in that regard. Until that was done, defendant could not fairly be charged with delay.

In the case at bar, though, the appellate court mandate was promptly filed in the circuit court, and defendant was aware that it had issued and that he had lost his appeal. Further, the delay here was approximately 14 months compared to five years in Millet. This case is, therefore, more similar to Ripa, where the appellate court mandate was promptly filed but I8V2 months elapsed thereafter before the defendant was ordered to surrender himself and complete service of sentence.

In Ripa, the trial court heard testimony from the defendant that, when his drug convictions were affirmed, he was so informed by his attorney, who also told him that he would receive a letter advising when to surrender to complete his sentence; that he had worked for the same employer for five years and lived at the same address for two years; that he had married and his wife was pregnant and employed; that they depended on their employment for income; and that he had not been arrested nor in any trouble since the 1976 charges for which he was sentenced. His wife testified that her father and sister had died, that she and her mother required psychological treatment as a result thereof, that defendant was very supportive and took her mother into their home and handled family affairs, and that it would be difficult after losing her father and sister to also lose her husband. Her mother’s testimony essentially corroborated hers, and defendant’s employer testified that defendant was at that time one of their finest employees and that he had changed his life style and was no longer involved with drugs or his prior associates.

The facts here were that defendant’s grandfather died, and the family consisting of his mother, two sisters and their children had to move out of the grandfather’s house and into an apartment; that his mother, who was ill when he was sentenced, was diagnosed to have cancer; that defendant had had several different jobs but was employed on a regular basis; and that his income went to support his family. However, as defendant himself admits in his reply brief, his life style did not change as drastically as Ripa’s. Defendant’s assertion that his family relies on him for psychological and economic support, while in all .probability accurate, is not as compelling a factor in the situation here as it was in Ripa.

As the trial judge observed, defendant’s petition does not state that he was not advised by his former attorney that the appeal had been lost and the sentence was due to be served. In fact, he was aware of it but was told by his attorney that he would “take it up further.” This statement does not equate with the statements by Ripa’s attorney that he would receive a letter advising him when to surrender. Moreover, such notification was apparently shown to be a local practice in Ripa (People v. Ripa (1983), 115 Ill. App. 3d 1, 5), and the record here does not establish such a practice. We also note and consider that one of the statutory conditions of the defendant’s bail, while he appealed his conviction and sentence, was that if the judgment was affirmed, he would forthwith surrender to the officer from whose custody he was bailed. Ill. Rev. Stat. 1981, ch. 38, par. 110--10(c)(5).

An examination of the circumstances of this case, as required by Millet in such cases, supports the trial court’s determination that defendant was not entitled to discharge, and we conclude that the trial court properly denied the habeas corpus petition. See People v. Cheek (1982), 93 Ill. 2d 82, 93-94.

Affirmed.

LINDBERG and HOPE, JJ., concur.


author: PRESIDING JUSTICE RIZZI

text:
    NANCY G. LIPMAN, Plaintiff-Appellant, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR, Defendant-Appellee.
    First District (3rd Division)
    No. 82 — 2340
    Opinion filed March 30, 1984.

      James A. Rooney, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Nancy G. Lipman, appeals from the order of the trial court affirming the decision of defendant, Board of Review of the Department of Labor (the Board), in which the Board denied plaintiff’s claim for antedated unemployment compensation benefits because the claim was not timely filed. On appeal plaintiff argues that the Board’s construction of Regulation 17F of the Division of Unemployment Insurance, Department of Labor, is unreasonable. Alternatively, plaintiff argues that if the Board’s construction of Regulation 17F is permissible, then the regulation is unconstitutionally vague and overbroad. We reverse and remand.

On October 8, 1981, plaintiff applied for extended antedation of her unemployment compensation benefits for the period January 11, 1981, through October 3, 1981, based on Regulation 17F of the Division of Unemployment Insurance, Department of Labor. This regulation provides:

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

Plaintiff’s claim was denied by the claims adjudicator on the basis that plaintiff had not filed her claim within the prescribed time limits. The claims adjudicator found that plaintiff’s delay in filing her claim was due to her “failure to investigate [her] eligibility status through the usual channels.”

Plaintiff applied for reconsideration of the claims adjudicator’s determination. A hearing was held at which plaintiff testified that she had been unemployed from January 11, 1981, to October 1, 1981. Plaintiff stated that she had not sought unemployment compensation benefits immediately after she lost her job because she had been working for the Federal government, and she did not think that Federal employees who lost their jobs were eligible for benefits under the State’s unemployment compensation program. Plaintiff further stated that she filed her claim in October after a friend suggested that she might be eligible for State benefits.

The referee upheld the claims adjudicator’s determination that plaintiff’s application was not timely filed and that such failure was not due to any of the reasons set forth in Regulation 17F. Plaintiff then appealed the referee’s decision to the defendant Board, which affirmed the referee’s decision. In making its determination the Board stated:

“It is the claimant’s contention that because she believed federal employees could not receive unemployment insurance benefits, she was ‘unaware of her rights’ as prescribed under Regulation 17F — 1, and that she was entitled to have her claim for benefits antedated. However, unawareness of rights under which extended antedation may be granted means unawareness of the existence of an unemployment compensation program, not ignorance as to whether a claimant is eligible to receive benefits. Under the circumstances of this case, the claimant’s mistaken belief is not sufficient basis to allow extended antedation of her claim for benefits.”

Plaintiff next filed a complaint for administrative review. The Board’s decision was affirmed by the circuit court.

Plaintiff’s first contention is that the Board’s construction of Regulation 17F is unreasonable and violates the public policy embodied in the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 300). We agree.

The Unemployment Compensation Act (the Act) was enacted pursuant to the State’s police powers, and it is to be liberally construed in order to effectuate the legislature’s public policy, announced in section 1 of the Act, of protecting against the severe economic consequences resulting from involuntary unemployment. (See Dienes v. Holland (1979), 78 Ill. 2d 8, 11, 397 N.E.2d 1358, 1359; Ross v. Cummins (1956), 7 Ill. 2d 595, 597, 131 N.E.2d 521, 523.) The Board acknowledges the remedial purpose underlying the Act, but argues that liberal construction of the Act must be applied in light of the requirements imposed by the Act. In this regard, the Board points out that section 500 of the Act (Ill. Rev. Stat. 1981, ch. 48, pars. 420 A through C) mandates three conditions that must be met before a claimant may collect benefits for any given week. The conditions are: (1) registering for work at and reporting to an employment office; (2) making a claim for benefits and (3) being able to work, being available for work and actively seeking work. The Board contends that “Regulation 17F permits the claimant, in effect, to circumvent the weekly requirements imposed by the legislature to insure the integrity of the Act.” Therefore, the Board states, “[it] has permitted such noncompliance only under compelling circumstances. In the case of section 1, such compelling circumstances exist where the individual has no knowledge that he has a right to file for unemployment compensation benefits, not where the individual has failed to file because he didn’t think he was eligible.”

While the interpretation given by an administrative agency to its rules and regulations is entitled to respectful consideration, an erroneous construction by the agency is not binding. (See Rosenbaum v. Johnson (1978), 60 Ill. App. 3d 657, 661, 377 N.E.2d 258, 260; Heifner v. Board of Education (1975), 32 Ill. App. 3d 83, 87-88, 335 N.E.2d 600, 603-04.) We believe that the Board’s interpretation of Regulation 17F is clearly erroneous. Under the Board’s interpretation, the only claimants who could receive benefits under section 1 of Regulation 17F would be those who could show that they were unaware of the Act’s existence. Even apart from the fact that virtually no one could qualify under the Board’s interpretation since, as counsel for the Board admitted at oral argument, most people are aware of the Act, the Board’s interpretation is too narrow in view of the public policy underlying the Act and the plain meaning of the wording of the regulation.

Section 1 provides that extended antedation may be allowed where the claimant failed to file or report at an earlier time “due to [his] unawareness of his rights under the Act.” (Emphasis added.) As plaintiff points out, the regulation does not state that extended antedation would only be allowed if the claimant’s failure to file or report was “due to his unawareness of the Act.” In construing regulations promulgated by an administrative agency, the same rules used in the construction of statutes are applicable. (May v. Pollution Control Board (1976), 35 Ill. App. 3d 930, 933, 342 N.E.2d 784, 787.) The supreme court has stated that the language of a statute is to be given its plain and ordinary meaning and that where the intendment of the statute is clear from the language itself, a court will not resort to judicial construction by “ ‘ “reading into a statute exceptions, limitations or conditions which conflict with clearly expressed legislative intent.” ’ ” (Dienes v. Holland (1979), 78 Ill. 2d 8, 15, 397 N.E.2d 1358, 1361.) Since the Board’s interpretation of Regulation 17F — 1 does not comport with the plain meaning of the regulation’s terms, the Board’s interpretation is clearly erroneous.

In addition, we find no merit in the Board’s argument that when section 1 is viewed in light of the other three sections of Regulation 17F, it is apparent that Regulation 17F was meant to apply only to those people who did not timely file for benefits due to “compelling circumstances.” The plain language of the regulation simply does not support the Board’s contention. Nor do we agree with the Board that the decision in Nendza v. Board of Review (1982), 105 Ill. App. 3d 437, 434 N.E.2d 470, recognized a “compelling circumstances” requirement as part of Regulation 17F. In Nendza, employees of a division of Rockwell International Corporation voted to strike on August 1, 1975. Some of the employees, but not the plaintiffs, filed for benefits under the Unemployment Compensation Act shortly after the strike began. The claims were initially denied by claims adjudicators, but the denial was reversed by the Director of Labor on April 20, 1977. When the plaintiffs learned of the Director’s decision, they immediately filed antedated claims for benefits commencing August 2, 1975. The referee, relying on the one-year limitation period under Regulation 17F, denied plaintiffs’ claims because they were not timely filed. This decision was affirmed, in turn, by the Board of Review, the circuit court and the appellate court.

We fail to see how the decision in Nendza mandates that Regulation 17F be applied only where there are compelling circumstances. Rather, the Nendza decision supports the position of the plaintiff here since the implication of the Board’s arguments in Nendza is that there is a one-year limitation period generally applicable to unemployment compensation claims.

Defendant also argues that a broad interpretation of Regulation 17F — 1 would permit abuse of the unemployment compensation system because claimants would delay filing for benefits until disqualifying facts have become hidden by the passage of time. We disagree. In Illinois, the receipt of benefits under the Act is a conditional right, and the claimant has the burden of proving his or her eligibility before the Board. (Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 892-93, 414 N.E.2d 1244, 1247.) Thus, it is the claimant who will be disadvantaged by any delay in filing a claim.

We therefore conclude that the Board’s interpretation of Regulation 17F is erroneous because it is contrary to the plain meaning of the regulation and because it does not foster the remedial purpose of the Act, which is to aid people who have become involuntarily unemployed.

Accordingly, the order of the circuit court is reversed and this case is remanded for further proceedings consistent with this opinion. In view of our decision, we need not address the constitutional argument raised by plaintiff.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.


author: JUSTICE McNAMARA

text:
    PATRICK J. SAMMON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (F.W. Woolworth Co., Appellee).
    First District (Industrial Commission Division)
    No. 84 — 376
    Opinion filed March 30, 1984.
    Patrick J. Sammon, of Tinley Park, pro se, for appellant.
    Roddy, Power & Leahy, Ltd., of Chicago (John P. Roddy, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of Cook County, which confirmed a decision by the Industrial Commission. In that decision, the Commission denied Patrick J. Sammon’s petition filed under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)). Petitioner sought additional compensation for increased disability under a previous award for injuries sustained at work on April 6, 1976. While denying the section 19(h) petition on the ground that petitioner had not shown an increase of disability, the Commission awarded petitioner $381.37 for related medical expenses under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). After the circuit court confirmed the Commission’s decision, petitioner brings a pro se appeal to this court.

Prior to the 1976 injury, petitioner had received an award under the Act for a 1975 injury for permanent and complete loss of the use of 10% of his left leg and 20% of his right leg. Petitioner then filed a claim for compensation for injuries he sustained on April 6, 1976, to his back and legs arising out of and in the course of his employment with respondent, F.W. Woolworth Company. On review of the arbitrator’s award for the 1976 injury, the Commission increased the earlier award by granting compensation for an additional loss of use of 10% of the left leg. No appeal of the order was taken. On September 28, 1979, petitioner filed the present petition seeking additional compensation for increased disability.

At the initial arbitration hearing on the 1976 injury, petitioner testified that he injured his lower back while bending over to lift an item of freight merchandise from a lower bin. He complained of pain and numbness in his back and legs. Petitioner was hospitalized and a myelogram and discogram were performed. He was placed in traction at this time. Petitioner was again hospitalized with complaints of pain and numbness, and a second myelogram was performed. A back brace and stimulator were prescribed.

In 1977, petitioner testified at the review hearing on his 1976 injury that he still had numbness in his legs every morning and when he stood or sat too long. He also had lower back pain when lifting. In addition, petitioner stated that his arms were worse and that he had been given a shot for bursitis in his right arm.

When petitioner filed his section 19(h) petition, he again testified as to his physical condition. He consulted Dr. James Lambur in December 1977, with complaints of pain and numbness in his lower back and legs as well as his right shoulder and arm. In June 1978, he saw Dr. Victor Berger. At this time petitioner was receiving therapy for his shoulder. In September 1978, Dr. N. S. Martinez performed thoracic outlet surgery on petitioner. Petitioner continued to see Dr. Lambur, as well as several doctors at the Veterans Administration Hospital.

Dr. Lambur’s testimony was given in the form of an evidence deposition in which he stated that the various tests, such as reflexes, sensation and neurological, were essentially normal at all times. Petitioner’s straight leg raising had improved, and abnormalities in the electromyographic studies had subsided. There was no overt muscle atrophy. Petitioner’s complaints were compatible with degernative lumbar disc disease. Bending and stooping would not cause a thoracic outlet syndrome. In March 1978 Dr. Lambur treated petitioner’s arm and shoulder and diagnosed bursitis.

Dr. Berger testified by means of an evidence deposition that he treated petitioner for thoracic outlet syndrome and mild carpal tunnel syndrome. In Dr. Berger’s opinion these conditions could not be caused by bending over and reaching, and there would have had to be an intervening cause after the 1976 injury. In 1977, petitioner’s only complaint was about the lower back.

It was stipulated that Dr. Marshall Matz would testify that there was no relationship between petitioner’s complaint of thoracic outlet syndrome and the 1976 injury. Dr. Matz found no change in petitioner’s condition between an examination in March 1977 and one performed in March 1980.

The parties also stipulated that Drs. Martinez and Barnett would testify that there might or could be a causal connection between petitioner’s complaints and treatment for right arm and shoulder pain and the injury in April 1976.

Section 19(h) of the Act provides in pertinent part as follows:

“[Ajccidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission *** on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h).

Under section 19(h), petitioner had the burden to show that there had been some change in his condition and that it had recurred or increased, causing additional disability. The issue of whether petitioner’s disability had increased, entitling him to additional compensation, was a question of fact for the Commission to decide based on conflicting medical evidence, and its decision will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (See Martin v. Industrial Com. (1982), 91 Ill. 2d 288, 437 N.E.2d 650.) We will not substitute our judgment for that of the Commission where the record clearly supports its findings that petitioner’s arm and shoulder complaints were unrelated to his lower back injury. The Commission had before it the opinions of Drs. Lambur, Berger and Matz that petitioner’s disability had not increased. Petitioner complains that the Commission considered only Dr. Lambur’s testimony, but even if that were so, his testimony was sufficient to support the Commission’s decision. Moreover, the decision includes findings which indicate that it also accepted Dr. Berger’s testimony. The findings of the Commission were not against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Cook County confirming the Industrial Commission’s decision is affirmed.

Judgment affirmed.

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


author: JUSTICE STAMOS

text:
      In re CUSTODY OF RONALD JEDYNAK, JR. (Ronald Jedynak, Petitioner-Appellee, v. Barbara Lawrecki (Jedynak), Respondent-Appellant).
    First District (2nd Division)
    No. 83 — 2697
    Opinion filed April 10, 1984.
    Victor Brown, of Legal Aid Bureau, of Chicago, for appellant.
    Alan D. Hoffenberg and Jerome Marvin Kaplan, both of Chicago, for appellee.
   JUSTICE STAMOS

delivered the opinion of the court;

Respondent Barbara Lawrecki appeals from an order denying her motion to dismiss a petition to modify a child custody judgment on the grounds that modification is barred by the two-year limitation of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 610(a)). We dismiss the appeal because there was no final order.

The minor whose custody is disputed in this case was born to respondent and petitioner Ronald Jedynak on April 12, 1979, and in September 1981 respondent filed a complaint to establish the paternity of the child. On January 19, 1982, a consent paternity judgment was entered in paternity court, which found petitioner to be the father of the child, granted custody to respondent and provided for child support and visitation.

On December 30, 1982, when the child was visiting petitioner in Chicago, petitioner obtained an ex parte order granting him temporary custody and setting the matter for a hearing. This order was vacated on January 12, 1983, and the child was ordered to remain with petitioner pending a full custody hearing.

On March 24, 1983, respondent moved to dismiss petitioner’s petition as barred by section 610(a) of the IMDMA. Respondent’s motion was denied and she appeals.

Before considering an appeal on its merits, it is our duty to determine whether the appeal has been properly taken so as to invoke our jurisdiction. (In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 1147, 419 N.E.2d 487.) “[F]or an appellate court to have subject matter jurisdiction, an appeal must generally be taken from a final order which either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof.” (94 Ill. App. 3d 1145, 1147-48; see 87 Ill. 2d Rules 301, 304.) An order which leaves a cause still pending and undecided is not a final order. In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145,1148.

In the instant case, the appeal is from an order denying a motion to dismiss the petition to modify custody. Such an order is not final and appealable. (Coble v. Chicago Health Club, Inc. (1977), 53 Ill. App. 3d 1019, 1021, 369 N.E.2d 188.) It did not dispose of the controversy or any definite part thereof and no determination as to the custody of the child was made. Therefore, the order is not final and appealable and we must dismiss the appeal.

Dismissed.

BERLIN and DOWNING, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
    PAUL E. SCOTT, Petitioner-Appellee, v. THE BOARD OF REVIEW, Illinois Department of Labor, et al., Respondents-Appellants.
    Fourth District
    No. 4 — 83—0525
    Opinion filed April 4, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellants.
    Irvin L. Masching, of Gomien, Root & Masching, of Dwight, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Unemployment insurance.

The question: Can a corporate officer qualify for unemployment insurance benefits?

Yes — under these conditions.

We affirm.

Paul Scott brought this action seeking judicial review of the determination of the Board of Review of the Illinois Department of Labor (the Board) that he was ineligible for unemployment insurance benefits. The circuit court reversed the Board’s decision — and properly so.

Scott is the corporate secretary for Scott Brothers Contractors, and he believes that he is a director. He is not remunerated as an officer, but receives wages only when he works as a laborer. Scott Brothers is in the general contracting business, which customarily experiences a slack period during the winter months. The business shut down in January of 1982, and Scott applied for unemployment insurance benefits. Between January 3 and March 13, 1982, Scott performed no work as a laborer or officer, and he received no wages.

A claims’ adjudicator denied Scott’s application for benefits solely because Scott had retained his position as corporate secretary. After an administrative hearing a referee, and later the Board, affirmed this decision. Scott filed a petition for judicial review, and the trial court reversed. The Board asserts that the court erred in holding that Scott was eligible for benefits.

The purpose of the Unemployment Insurance Act (the Act) is to protect against economic insecurity due to involuntary unemployment. (Ill. Rev. Stat. 1981, ch. 48, par. 300.) The Act is intended to benefit those who are unemployed through no fault of their own and who are willing, anxious, and ready to obtain employment. (Mohler v. Department of Labor (1951), 409 Ill. 79, 86, 97 N.E.2d 762, 765-66.) While the Act is to be liberally construed (American Steel Foundries v. Gordon (1949), 404 Ill. 174, 180, 88 N.E.2d 465, 468), its purpose will be perverted if its benefits are paid at the compulsory expense of others to persons who are not intended beneficiaries. Fleiszig v. Board of Review (1952), 412 Ill. 49, 54,104 N.E.2d 818, 821.

In order to achieve its purpose, the Act sets up an insurance program. Employers are compelled to contribute with respect to wages payable for “employment.” (Ill. Rev. Stat. 1981, ch. 48, par. 550.) “Employment” includes services an officer performs even if the officer is also a stockholder or director of the corporation. (Ill. Rev. Stat. 1981, ch. 48, par. 316.) Scott Brothers, therefore, was required to contribute to the program based upon the wages it paid Scott as a laborer.

An individual must meet two conditions to be eligible for benefits. Similar to any other insurance program, an individual is entitled to benefits only if contributions to the fund are made for him. An individual whose employer does not contribute cannot get benefits under the Act. (Ill. Rev. Stat. 1981, ch. 48, pars. 346, 420.) The individual must also be “unemployed.” (Ill. Rev. Stat. 1981, ch. 48, par. 420.) An individual is “unemployed in any week with respect to which no wages are payable to him and during which he performs no services.” Ill. Rev. Stat. 1981, ch. 48, par. 349.

The Board asserts that Scott is not an intended beneficiary of the Act. The Board reasons that because Scott is an officer of a closely held, family corporation, he has retained control over his employment. Thus, his unemployment cannot be involuntary. The Board, therefore, concludes that Scott is not an “unemployed individual.” Under this interpretation, Scott can never be eligible for benefits, though the corporation is still compelled to contribute based upon his wages.

The issue, then, is whether the legislature intended to deny benefits to one whose wages are the subject of employer contributions.

The court, in Garland v. Department of Labor (1984), 121 Ill. App. 3d 562, recently addressed this same issue. In Garland the plaintiff applied for unemployment benefits after she was laid off by her employer corporation. She continued to hold corporate office, although she performed no services and received no wages. The Bureau of Employment Security denied her benefits because it concluded that as president of a closely held, family corporation, she controlled her employment status, and thus, her unemployment was voluntary. The court, however, noted that the Act establishes an insurance program, and not a tax. The court went on to state that unlike a tax, the benefits of an insurance program should be payable to all for whom contributions are made. (121 Ill. App. 3d 562, 564.) The court, therefore, held that the plaintiff was eligible for benefits because the corporation had contributed on her behalf.

The Board urges us to reject the Garland approach and to follow other jurisdictions which bar an officer of a closely held, family corporation from receiving benefits. (See, e.g., DeVivo v. Levine (1976), 51 App. Div. 2d 619, 377 N.Y.S. 2d 309; De Priest v. Unemployment Compensation Board of Review (1961), 196 Pa. Super. 612, 177 A.2d 20.) The Board cites these cases as persuasive authority, but it chooses to ignore other jurisdictions which allow a person in Scott’s position to be eligible for benefits. (See, e.g., Springer v. Daniels (1981), 1 Ark. App. 103, 613 S.W.2d 121; Rector v. Director of Department of Employment Security (1978), 120 R.I. 802, 390 A.2d 370; In re Archer (1975), 133 Vt. 279, 336 A.2d 172; Eytchison v. Employment Security Agency (1956), 77 Idaho 448, 294 P.2d 593.) Instead the Board asserts that Garland was incorrect in assuming that those whose wages are used in calculating their employers’ contributions are intended to benefit under the Act. The Board relies primarily on Bag ley & Huntsberger, Inc. v. Employer Accounts Review Board (1978), 34 Pa. Commw. 488, 383 A.2d 1299, which declared that no quid pro quo relationship between payment of the unemployment tax and entitlement to benefits exists in Pennsylvania.

While Pennsylvania appears to treat their contributions as taxes, Illinois does not. The Act sets up a system for unemployment insurance not for unemployment taxation. The Act provides “for the setting aside of reserves during periods of employment to be used to pay benefits during periods of unemployment.” (Ill. Rev. Stat. 1981, ch. 48, par. 300.) We cannot ignore the legislature’s recent amendment by Public Act 79 — 98, which substituted the word “insurance” for “compensation” in both the title of the Act and the declaration of public policy. Ill. Rev. Stat. 1981, ch. 48, pars. 300, 820.

Contributions to an insurance program are paid for a guarantee that those for whom the contributions are made will be entitled to future benefits. Employers contribute now so that their employees will be protected against unemployment in the future. The legislature defined the class of individuals entitled to receive benefits in its definition of “employment.” (A. George Miller, Inc. v. Murphy (1942), 379 Ill. 524, 527, 42 N.E.2d 78, 80.) The services which Scott provided are included in this definition. The involuntary contributions that employers make are not general taxes; rather, they are trust funds, and there is no statutory warrant for collecting more funds than is necessary to satisfy the possible future demands of the beneficiaries for whom contributions are currently being made. (Lindley v. Murphy (1944), 387 Ill. 506, 511, 56 N.E.2d 832, 835.) If an officer of a closely held, family corporation cannot receive benefits, then common sense would dictate that the employer corporation should not be compelled to contribute on his behalf.

The Board asserts that affirmance of the lower court would only encourage manipulation of closely held corporations so that officers could schedule a period of corporate inactivity and then apply for unemployment benefits. The Garland court acknowledged this potential for abuse, but held that the legislature must eliminate opportunities for manipulation. (Garland v. Department of Labor (1984), 121 Ill. App. 3d 562, 566.) Indeed, the legislature has previously eliminated such opportunities. For instance, service performed by an individual for his parent, child, or spouse has been exempted from the definition of “employment.” (Ill. Rev. Stat. 1981, ch. 48, par. 328.) If the legislature had intended to remove officers of closely-held, family corporations from the ameliorative provisions of the Act, it undoubtedly would have employed language appropriate to accomplish its objective. (Peasley v. Murphy (1942), 381 Ill. 187, 192, 44 N.E.2d 876, 879.) We cannot exclude Scott from eligibility for benefits merely to prevent corporate manipulation when the legislature has chosen not to do so.

While the Board asserts that we must not ignore the reality of the situation, the Board itself exalts form over substance. Scott’s unemployment stems from the seasonal nature of his work, not from anything he can control as corporate secretary. The Board complains that Scott chose to risk seasonal losses, yet the same is true for all seasonal workers. A seasonal worker is not per se ineligible for benefits; rather, he is subject to the same eligibility requirements as all other workers. (Mohler v. Department of Labor (1951), 409 Ill. 79, 86, 97 N.E.2d 762, 765.) Because we hold that Scott can be an “unemployed individual,” those same eligibility requirements must be applied to him.

We accordingly affirm the judgment of the circuit court.

Affirmed.

TRAPP and MILLER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL PUMPHREY, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0705
    Opinion filed April 5, 1984.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Marlene Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Pumphrey was convicted of attempted armed violence and placed on probation for three years. His probation was later revoked, and he was sentenced to four years’ imprisonment. He was also ordered to pay $300 as reimbursement for the cost of providing a public defender.

On appeal, Pumphrey does not challenge either his conviction, his probation revocation, or his prison sentence. These we affirm.

He does, however, contend (1) that the order for reimbursement of appointed counsel fees is unconstitutional, (2) that the trial court erred by imposing the obligation upon him to pay such reimbursement without a hearing, and (3) that the trial court erred by ordering that his bond deposit in a separate, dismissed case be used for reimbursement of public defender fees in this case.

I

We recently addressed Pumphrey’s first issue in People v. Kelleher (1983), 116 Ill. App. 3d 186, 452 N.E.2d 143, where we expressly found that section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1) was constitutional. No error.

II

Pumphrey next contends that the trial court erred in ordering him to reimburse the county for the costs of the public defender in the amount of $300 since the basis of the trial court’s computation of $50 per hour is not contained in the record. We agree. In People v. Bramlett (1983), 118 Ill. App. 3d 1056, 1062, 455 N.E.2d 1092, 1095, this court held that any reimbursement obligation under section 113— 3.1 must be computed on the basis of the actual cost of providing a public defender, not upon the reasonable value of the legal services:

“The crucial point is that evidence of the county’s cost of providing services of the public defender must be presented in some form, and the amount of reimbursement should be calculated on the basis of this evidence. In the case at bar, no evidence of the county’s costs was offered; therefore, remandment for a redetermination of the appropriate amount of reimbursement is required.”

Our holding here is the same.

Ill

Next, this court has held that when a motion for reimbursement of attorney fees is filed, the trial court must determine whether the defendant has the ability to pay recoupment. {Kelleher.) Although a strained reading of the record could indicate that the trial court found an ability to pay, it is less than clear. Upon remand, the trial court will undoubtedly consider Pumphrey’s financial ability to pay and enter an appropriate order.

IV

Finally, Pumphrey argues that the trial court erred by ordering that his bond deposit in a separate, dismissed case should be used for reimbursement of public defender fees in this case. Again, we agree. In our recent opinion in People v. Martin (1983), 120 Ill. App. 3d 581, 583, 457 N.E.2d 1372, 1373, we held that section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) prevents use of bond deposited in one case to satisfy financial obligations incurred in another case in which a sentence of imprisonment has been imposed:

“Upon consideration of section 110 — 7 concerning the deposit of bail security in its entirety, we hold that the trial court’s authority to order deductions from the bail monies is limited to those obligations arising in the case for which the bail was posted as security.” (People v. Martin (1983), 120 Ill. App. 3d 581, 583.)

Consequently, the trial court had no authority to apply any bond deposit in No. 83-CM-956 to the reimbursement order in this case, and any bail deposit in No. 83-CM-956, less the 10% statutory fee, should be returned to the defendant.

For the above reasons, we vacate the reimbursement order and remand this cause for a new hearing on the motion for reimbursement in accord with this disposition.

Affirmed in part, vacated in part and remanded with directions.

TRAPP and MILLER, JJ., concur.