APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Dorothea Kocourek (plaintiff) brought this action for administrative review of a decision of the Illinois Department of Labor and its officers (defendants) finding plaintiff ineligible for unemployment insurance benefits. Defendants moved to dismiss the complaint. After a hearing, the trial court denied defendants' motion. The trial court also found in favor of plaintiff and reversed the decision of defendants.
On appeal by defendants they raise two issues which will be dealt with separately.
Defendants' first argument is that the instant action was not timely filed. Therefore, they contend the trial court erred in denying defendants' motion to dismiss the complaint. Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(e).
In Commonwealth Edison Co. v. Property Tax Appeal Board (1978), 67 Ill. App.3d 428, 429-30, 384 N.E.2d 504, appeal denied (1979), 74 Ill.2d 585, this court stated:
"Administrative [r]review must be sought within 35 days of the date on which `a copy of the decision sought to be reviewed was served upon the party affected * * *.' (Ill. Rev. Stat. 1977, ch. 110, par. 267.) As applicable here, there is the further provision in the same paragraph that `a decision shall be deemed to have been served * * * when deposited in the United States mail, in a sealed envelope * * * with postage prepaid, addressed to the party * * *.'"
Defendants' Board of Review evidenced its decision in a letter dated March 29, 1979. Plaintiff did not file her complaint until May 4, 1979, 36 days after March 29, 1979.
The parties have agreed defendants, as the moving party, bear the burden of establishing March 29, 1979, as the mailing date of the decision. (See Pel-Aire Builders, Inc. v. Jimenez (1975), 30 Ill. App.3d 270, 275, 332 N.E.2d 519.) The parties also agree on the level of proof necessary to establish such a mailing as set forth in the Commonwealth Edison Co. v. Property Tax Appeal Board decision (67 Ill. App.3d 428, 430-31):
"[A] mailing may be proved by evidence of an office custom together with corroborating circumstances relevant to show the custom has been followed in the particular instance. [Citation.] The [affidavits] supplementing the motion and in opposition to it must be examined to see whether under these requirements a mailing on [the relevant date] has been proven. If, considering the affidavits, there remains a material and genuinely disputed question of fact, evidentiary testimony must be taken."
See also Ill. Rev. Stat. 1977, ch. 110, par. 48(3).
Defendants' motion to dismiss was originally supported by an affidavit from Abraham Robinson, the secretary of defendants' Board of Review. Robinson stated only that the decision complained of was mailed to plaintiff "in due course of business" on March 29, 1979. This affidavit was withdrawn at the hearing on defendants' motion and replaced by three new affidavits. In his new affidavit, Robinson detailed the procedures in which dated decisions are prepared and distributed for mailing. He also detailed the safeguards taken to insure decisions are mailed on the day of their date. He stated the usual procedure was followed on March 29, 1979.
On cross-examination, Robinson stated he might see from one to 100 cases each day, but not all cases under review by the Board are seen by him personally. He could not recall the number of decisions he saw on March 29, 1979, and he could have seen from 25 to 100 or more. His conclusion that decisions dated March 29, 1979, were mailed on that day was based on office procedure and the fact that no safeguards were implemented on that day.
In his affidavit, George Knapik, a mail clerk, stated on March 29, 1979, he followed his general procedure of picking up outgoing mail and placing it in the out-mail unit. On cross-examination by plaintiff, Knapik testified he specifically recalled following this procedure on March 29, 1979, but could not remember any other details about that day such as the number of pieces of mail he picked up. On redirect examination, Knapik reiterated he follows the same procedure every day.
Helen Lawrence, defendants' mail room supervisor, in her affidavit detailed the general procedure by which outgoing mail is stamped, sealed and placed at the loading dock for pickup by the United States Postal Service. She concluded this procedure was followed on March 29, 1979. However, she conceded that this conclusion was based solely on general office procedure and not on her personal knowledge. She admitted she did not particularly recall March 29, 1979. ...