APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 10, 1976.
Ralph E. Peifer (plaintiff) appeals the dismissal of his declaratory judgment complaint brought to determine his right to retire from the Village of Winnetka police force and receive a regular pension, after having been on a disability pension for a number of years.
Plaintiff became an active member of the Winnetka Police Department on January 10, 1949. He was promoted in 1952 to sergeant and in 1960 to lieutenant. In 1964 plaintiff underwent major surgery and applied for a disability pension as a result of his condition. In accord with plaintiff's request, the pension board of the Winnetka Police Department (defendant) placed plaintiff on "disability status."
In May 1973, while still on disability, plaintiff wrote to defendant inquiring as to the amount he would receive if he elected to retire from the police force according to section 3-114 of the Illinois Pension Code. (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 3-114.) The letter also referred to an opinion by this court in People ex rel. Anastasia v. Civil Service Com. (1st Dist. 1973), 10 Ill. App.3d 583, 586-87, 295 N.E.2d 127, which construed section 3-114. This court held that a policeman on disability who elects to retire would receive a regular pension of 50% of the salary attached to his rank for one year immediately prior to his retirement rather than one year prior to his disability leave. On October 19, 1973, defendant informed plaintiff he did not qualify for the election to retire referred to in plaintiff's letter and pointed out recent amendments to the statute.
While plaintiff was on the disability pension, there were several changes in the applicable Illinois Pension Code. When plaintiff was placed on disability, section 3-114 provided:
"Whenever a policeman becomes physically or mentally disabled to an extent which necessitates the suspension of his duty on, or retirement from, the police force, he shall be paid a pension * * *. If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force, be paid a regular pension in lieu of such disability pension."
In 1973 the Illinois legislature enacted Public Act 78-317, effective October 1, 1973, which repealed section 3-114 of the pension code and replaced it with section 3-114.1, 3-114.2 and 3-116.1. The new provisions altered the amount a disabled policeman was entitled to receive upon electing to retire. Section 3-116.1 provides:
"A policeman who completes 20 years of service and is age 50 or more, and who is on the disability pension roll * * * may * * * continue to receive, in lieu of any amounts which otherwise would be payable to him * * * a retirement pension * * * of 1/2 of the salary attached to his rank on the police force at the date of his retirement on disability."
As the result of the defendant's letter of October 19, 1973, plaintiff filed a declaratory judgment suit (Ill. Rev. Stat. 1973, ch. 110, par. 57.1) asking the circuit court to determine his right to elect to retire pursuant to the provisions of section 3-114 and to be paid a regular pension under the provisions of section 3-111 of the pension code. *fn1 Defendant filed a motion to dismiss and for involuntary dismissal. This motion cited section 45 of the Civil Practice Act which allows the dismissal of a complaint where it is substantially insufficient in law, and section 48(1)(i) of the Civil Practice Act which provides a complaint may be involuntarily dismissed where the claim against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand. (Ill. Rev. Stat. 1973, ch. 110, pars. 45, 48(1) (i).) Defendant based its motion on the following theories: (1) Public Act 78-317 repealed section 3-114 and added section 3-114.2; (2) plaintiff has never made the election he is now urging and therefore there is no justiciable controversy; (3) plaintiff retired because of a permanent disability in 1964 and may not elect to retire again; and (4) plaintiff did not satisfy the 20-year creditable service requirement for retirement.
Upon the trial court's granting the motion to dismiss, the plaintiff appeals, raising the following issues: (1) whether a declaratory judgment action was proper in this case; (2) whether application of Public Act 78-317 to plaintiff's situation violates the 1970 Illinois Constitution; and (3) whether plaintiff qualified for the provisions of section 3-114 which were applicable to persons on disability status, thereby enabling him to retire under section 3-111.
• 1 Defendant's motion to dismiss questioned the propriety of plaintiff's action for a declaratory judgment to determine plaintiff's retirement benefits while plaintiff was still on disability. Plaintiff cited People ex rel. Anastasia v. Civil Service Com. (1st Dist. 1973), 10 Ill. App.3d 583, 586, 295 N.E.2d 127:
"[T]he plaintiff asked the trial court to construe the Illinois Pension Code to determine the amount of the pension he would receive if he elects to retire from the force. An actual controversy existed in the dispute between the plaintiff and the defendants over the amount to be paid. * * * [T]he lower court properly rendered a declaratory judgment to resolve the controversy."
The case at bar also presents an actual controversy between plaintiff and defendant regarding plaintiff's right to elect to retire from the force and the amount to be paid upon such retirement. Plaintiff's complaint sets forth the facts pointing out the controversy which had arisen with respect to his pension situation. The prayer for relief requested the circuit court to find and declare plaintiff's rights under the statute. Thus the plaintiff has satisfied the criteria of section 57.1 of the Illinois Civil Practice Act. This is a proper case for ...