APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
This is the second appeal in this class action filed by two former employees of the Chicago American Publishing Company (company), publishers of the Chicago Today, a newspaper of general circulation in the Chicago area until 1974. In our prior opinion (65 Ill. App.3d 10, 382 N.E.2d 309), we held that plaintiffs' amended complaint, when liberally construed, stated a cause of action. That amended complaint had alleged: that Edward H. Kenneke, Edward Waszak and the other members of the class, were employed by the company as drivers of newspaper delivery trucks; that their employment was terminated when the company ceased publishing the newspaper; that the defendants were the First National Bank of Chicago, trustee of the Chicago Newspaper Publishers' Association Union Pension Plan (plan), and members of the Pension Administrative Board of the plan; that in 1959, pursuant to a collective bargaining agreement between the union and the company, the company agreed to compensate the plaintiffs and the class by making them eligible for benefits under the plan; that each member of the class received partial compensation from the company in the form of payments to the plan; that the company agreed to and did pay large sums of money to the plan for the benefit of the plaintiffs and the class; that the trustee of the plan holds the monies which are the subject of this suit; that the plan retains the use and benefit of the payments which were made exclusively for the benefit of plaintiffs and the class; and that the plaintiffs and other members of the class have been informed that they have no interest in the plan nor rights thereunder.
On remand from this court, a second amended complaint was filed in this matter. Edward Waszak was the only named plaintiff. The first count of this complaint, in effect, restated the above allegations of the amended complaint. The second count named the Chicago Tribune Company (Tribune), as an additional party defendant, and in addition to the above alleged: that the Tribune employed all the members of the class at the time the company ceased doing business; that shortly thereafter there was a mass termination of said Class members; that the plan is funded by employer contributions made by contributing employers, including the Tribune; that by reason of the contributions to the plan made on behalf of class members and their subsequent termination, there existed an actuarial surplus in the plan; that the Tribune was credited with such surplus, and as a consequence, its contributions to the plan, made on behalf of its employees, were, for a long time, substantially reduced; and that the Tribune has been unjustly enriched to the extent of the reductions in its obligations to the plan.
Subsequently, the defendants filed a motion for summary judgment on the ground, inter alia, that, as a matter of law the express terms of the plan and the collective bargaining agreement between the plaintiff's union and the Chicago Newspaper Publishers' Association, an association which included both the Tribune and the company, precluded recovery on a theory of unjust enrichment. A supporting affidavit, not contradicted by counteraffidavit, stated that plaintiff Waszak had completed 10 years, 11 months of credited service by the end of 1974, and that except for provisions dealing with payment of disability benefits not in issue here, section six of the plan, as amended, provided that a participant must have at least 20 years of credited service in order to qualify for any pension benefits. The trial court granted defendants' motion and dismissed the second amended complaint with prejudice. It is from this order that this appeal is taken.
• 1 It is not disputed that plaintiff Waszak did not qualify for pension benefits under the terms of the pension plan. In fact, plaintiff's pleadings do not seek a pension under the plan, but rather seek quasi-contractual relief. The sole issue presented on this appeal is whether section 30 of the collective bargaining agreement, or section 11.2 of the pension plan entitled the defendants to summary judgment. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), summary judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Fooden v. Board of Governors (1971), 48 Ill.2d 580, 586, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L.Ed.2d 766, 92 S.Ct. 2846.) We conclude that section 30 of the collective bargaining agreement and section 11.2 of the pension plan did not entitle defendants to a judgment as a matter of law and that the trial court erred in granting their motion for summary judgment.
Section 11.2 of the pension plan provides:
"11.2 Vested Interests. Neither the Association, any Employer, Participant, nor the Union, nor any member of the Union, nor any person claiming by, through or under any of them, shall have any right, title or interest in or to the Pension Trust Fund, or any part thereof, excepting the right of a Participant to benefits as provided hereunder."
Section 30 of the collective bargaining agreement provides:
"Section 30. In the event of merger, consolidation or suspension of any newspaper covered by this Agreement, all regular employees having one year or more of regular employment with such newspaper who thereby are deprived of such regular employment shall receive suspension or merger pay as follows:
Employment of 1 year __________________________________ 1 week Employment of 2 years _________________________________ 2 weeks Employment of 3 years _________________________________ 3 weeks Employment of 4 years or more _______________________ 4 weeks."
• 2, 3 As a preliminary matter, the parties disagree as to whether our prior holding in this case precludes us from considering section 11.2 on this appeal. Plaintiff argues that that section was urged upon this court as part of the first appeal and that we in our prior opinion held that that section was not a bar to recovery. We reject this argument on the basis of language in that opinion defining the scope of our holding:
"We also note here that we reach this holding on the basis of plaintiffs' first amended complaint and defendants' motion to strike and dismiss, neither of which set forth the actual provisions of the plan itself. Our decision is merely that the first amended complaint without an examination of the Plan states a proper cause of action on a theory of unjust enrichment; we are not passing upon how this case will be affected if either party chooses to introduce the terms of the pension fund agreement itself into evidence as this proceeding develops." (65 Ill. App.3d 10, 11-12.)
We note that although defendants' motion to strike and dismiss plaintiffs' first amended complaint does not quote section 11.2, a copy of that section was attached to defendants' previous motion to strike and dismiss and motion for summary judgment as an exhibit. However, our prior decision was clearly based on the first amended complaint without an examination of the plan. Under the doctrine of "law of the case," an appellate court is bound by its former final decision and judgment upon the same record, subject to certain exceptions not applicable here. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App.3d 967, 970, 326 N.E.2d 773; Knowles Foundry & Machine Co. v. National Plate Glass Co. (1939), 301 Ill. App. 128, 153, 21 N.E.2d 913.) Our prior opinion did not consider the effect of section 11.2 in determining that a cause of action was stated, and accordingly, we conclude that the issue of whether section 11.2 of the pension plan prevents the granting of quasi-contractual relief to plaintiff is properly before this court for determination at this time.
In holding that the first amended complaint stated a proper cause of action for unjust enrichment, we relied upon Lucas v. Seagrave Corp. (D. Minn. 1967), 277 F. Supp. 338, and Bernstein, Employee Pension Rights When Plants Shut Down: Problems and Some Proposals, 76 Harv. L. ...