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06/08/88 Glen Behling, v. the Department of Labor Et

June 8, 1988

GLEN BEHLING, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF LABOR ET AL., DEFENDANTS-APPELLANTS (BURNS INTERNATIONAL SECURITY SERVICES, INC., DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

525 N.E.2d 1021, 171 Ill. App. 3d 804, 121 Ill. Dec. 714 1988.IL.891

Appeal from the Circuit Court of Cook County; the Hon. Marilyn R. Komosa, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Defendant, Illinois Department of Labor (Department), appeals from a judgment of the trial court in favor of plaintiff, Glen Behling. On appeal, defendant argues that: (1) the dismissal for want of prosecution of Behling's original action divested the circuit court of jurisdiction to entertain an action for administrative review when that action was refiled within one year of dismissal of the original action but more than 35 days from the Department's decision and (2) the trial court erred in reversing the decision of the Board of Review to impose on Behling a disqualification under section 603 of the Illinois Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 433). We affirm.

Behling was employed by Burns as a full-time security guard for approximately 3 1/2 years. As a security guard for Burns, Behling was assigned to work at Warner Brake and Electric in Beloit, Wisconsin. When Burns terminated its security agreement with Warner Brake and Electric, Behling was laid off. Following his layoff, Behling applied for unemployment insurance benefits. However, Behling's request for benefits was denied by the claims adjudicator at the local unemployment insurance office. The claims adjudicator's reason for denying Behling benefits was that under section 603 of the Act, benefits are to be denied if an employee refuses an offer of work from the former employer and that refusal is without good cause. Ill. Rev. Stat. 1985, ch. 48, par. 433.

Behling appealed the claims adjudicator's decision and requested a hearing with the Board of Review. In the hearing, alleging that Behling had refused work offered by Burns, Burns urged the Board of Review to affirm the decision of the claims adjudicator. Burns stated that it had offered Behling work at one jobsite, but Behling refused because he did not have transportation to that jobsite. Burns further stated that it offered Behling work on holidays and part time at another jobsite, Beloit Power System. This work, according to Burns, was offered "during Thanksgiving, Christmas, two weeks during the summer shift hours and so on." However, Burns did not state what the terms and conditions of the job at Beloit were with respect to the hours, rate of pay, benefits, supervision, job duties or type of work.

Behling acknowledged that Burns had mentioned possible employment positions to him, but stated that he could not ascertain the specific terms of the job offers. These terms included what the hours were, what shifts were to be worked, how many days were involved and how the work would affect his unemployment status. There was evidence that the plant at which full-time employment was allegedly available was approximately five miles from Behling's residence. There was no public transportation from Behling's home to this jobsite, and Behling had no means of private transportation.

Following the hearing, the Board of Review affirmed the decision of the claims adjudicator. Within 35 days, Behling filed for administrative review of the Board of Review's decision in the circuit court of Cook County. However, Behling's complaint was dismissed for want of prosecution without notice to either Behling or the Department. Both Behling and the Department were ready to proceed with oral arguments when it was discovered from the court file that the case had in fact been dismissed. Thereafter, the court denied Behling's motion to reinstate the original action. Thus, Behling refiled his action pursuant to section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-217).

Upon review of the Behling's case, the court denied the Department's motion to dismiss and reversed the decision of the Board of Review's referee. The court found that based upon the transcript and the evidence before it, no definite offer of employment was made by the employer, and even assuming that one had been, the employment offered was unsuitable under the Act. This appeal followed.

Department first argues that when the court dismissed Behling's first action for want of prosecution, the circuit court lost jurisdiction to entertain an administrative review action that was refiled more than 35 days from the Department's decision. To support this position, the Department argues that section 13-217, which grants plaintiffs the right to refile within one year following dismissal of their cases for want of prosecution, does not extend the special and limited jurisdiction conferred on the circuit court to review an administrative decision. (Ill. Rev. Stat. 1985, ch. 110, par. 13-217.) We disagree.

Section 3 -- 103 provides in part:

"Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the ...


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