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Creamer v. Police Pension Fund Bd.

OPINION FILED DECEMBER 5, 1978.

WILLIAM J. CREAMER, PLAINTIFF-APPELLANT,

v.

THE POLICE PENSION FUND BOARD OF MOUNT PROSPECT ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE BROWN*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS PREPARED BY JUSTICE BROWN WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.

Mr. JUSTICE BROWN*fn1 delivered the opinion of the court: *fn1 Justice Brown participated pursuant to assignment by the Illinois Supreme Court.

This case involves the jurisdiction of the circuit court of Cook County to review a decision of an administrative agency pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.). The plaintiff appeals from an order of the circuit court dismissing his action for lack of jurisdiction.

The issue presented on appeal is whether the circuit court retained jurisdiction of plaintiff's action to review when it remanded it to the administrative agency for a hearing de novo due to the lack of an adequate transcript.

The facts are not in dispute.

On March 12, 1976, plaintiff, William J. Creamer, filed a complaint for Administrative Review requesting judicial review of the Police Pension Fund Board of the Village of Mount Prospect finding that an injury sustained by plaintiff, a former Mount Prospect police officer, had not occurred in the line of duty.

On October 5, 1976, the circuit court entered an order remanding the cause for a hearing de novo due to the lack of a transcript. On April 29, 1977, a new hearing was held before the Police Pension Fund Board. Following the hearing, the Board rendered its decision and served the same on plaintiff on May 16, 1977.

On June 20, 1977, the 35th day following service on plaintiff of the Board's decision, the plaintiff mailed a notice of motion to defendants' counsel advising that on July 5, 1977, he would move for leave of court to file the transcript of the hearing and to substitute attorneys. No motion was attached to the notice. The notice of motion was not filed with the clerk of the circuit court until July 5, 1977, 50 days after service on plaintiff of the Board's decision.

On July 5, 1977, plaintiff orally moved for leave to file the transcript of the second hearing and to substitute attorneys. Defendants objected, claiming that a proceeding under the Administrative Review Act could not be commenced by such a motion, and that even if it could, the action was not commenced within 35 days of service of the decision as required by the Act.

On August 9, 1977, the court denied the oral motion and dismissed the action to review with prejudice. Thereafter, plaintiff filed a timely notice of appeal.

Plaintiff contends that the circuit court retained jurisdiction of his action to review when it remanded it to the Police Pension Fund Board for a hearing de novo and, therefore, his motion for leave to file the new record was proper.

Defendants maintain that the circuit court terminated its jurisdiction over plaintiff's action to review when it entered its order without expressly reserving jurisdiction. As a result, plaintiff would be required to follow the procedure outlined in section 4 of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 267). That act requires that every action to review a final administrative decision shall be commenced by the issuance of summons and the filing of a complaint within 35 days from the date that a copy of the decision sought to be reviewed was served upon the plaintiff.

As authority for his position, plaintiff cites section 9(c) of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 272(c)) which provides:

"If the cause is remanded to the Administrative Agency and a review shall thereafter be sought of the administrative decision, the original and supplemental record, or so much thereof as shall be determined by court order or the ...


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