APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
508 N.E.2d 351, 155 Ill. App. 3d 616, 108 Ill. Dec. 190 1987.IL.562
Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. LINN, J., concurs. JUSTICE JIGANTI, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiff, William Johnson, Jr., sought administrative review in the circuit court of Cook County of a decision by defendant, the State Employees Retirement System, denying him survivor's benefits. Defendant moved to dismiss the action because plaintiff filed his complaint after the statutory 35-day limit. The trial court denied the motion to dismiss and we granted defendant this interlocutory appeal. The issue before us is whether the notice of defendant's decision, which failed to inform plaintiff of his right to appeal the decision and the 35-day limit for filing an appeal, denied plaintiff due process of law.
The record shows that plaintiff's wife worked for the State of Illinois for approximately 13 years and retired with full retirement benefits. She died in November 1984. Soon thereafter, plaintiff filed a claim with defendant for survivor's benefits under defendant's Survivor's Annuity Benefit Plan. The record before us does not describe the proceedings defendant held regarding plaintiff's claim. The record does show, however, that defendant made a final decision to deny plaintiff's claim., Defendant notified plaintiff of its final decision in a letter dated July 22, 1985, which plaintiff received on July 26, 1985. The letter stated as follows:
"At the July 17, 1985 meeting of the Board of Trustees of the State Employees' Retirement System, the Board ratified the Executive Committee's decision to deny your appeal for Survivor's Benefits.
This constitutes final administrative review of your appeal by the State Employees' Retirement System.
If you have any questions, please contact this office."
At the bottom of the letter was a notation indicating that defendant sent a copy to plaintiff's attorney.
The record further shows that plaintiff brought this action for judicial review of the agency's decision pursuant to the Administrative Review Act (the Act), now codified as article III of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). Plaintiff filed his complaint in the trial court on September 19, 1985, 55 days after he received defendant's final decision. Defendant moved to dismiss the cause, arguing that plaintiff filed the complaint more than 35 days after he was notified of its decision, contrary to the Act (Ill. Rev. Stat. 1985, ch. 110, par. 3-103).
The trial court denied the motion, ruling that the Act required defendant to notify claimants that they have a right to judicial review and that they must exercise the right within 35 days. We granted defendant this interlocutory appeal ...