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06/14/89 Thomas Dechene, v. Firemen's Pension Fund of

June 14, 1989

THOMAS DECHENE, PLAINTIFF-APPELLANT

v.

FIREMEN'S PENSION FUND OF THE CITY OF BLUE ISLAND ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

540 N.E.2d 881, 184 Ill. App. 3d 828, 133 Ill. Dec. 15 1989.IL.888

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and CERDA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff Thomas DeChene appeals from an order of the circuit court dismissing his declaratory judgment action for lack of jurisdiction. Plaintiff argues that the trial court erred in ruling that he was required to seek administrative review prior to bringing his action in the circuit court.

Plaintiff was hired as a fire fighter by the Blue Island, Illinois, fire department in 1969, and in the following year he became a member of the Firemen's Pension Fund (Fund). In January 1978, plaintiff was injured in the line of duty. Plaintiff returned to work in July 1978, but was reinjured in September. Plaintiff was on disability leave between September 1978 and September 1979. During that time, plaintiff received full payment of his wages plus temporary disability payments, pursuant to the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), in the amount of $807.65 per month.

In October 1979, the Fund awarded plaintiff a line of duty disability pension, entitling him to monthly payments of $960.11. However, relying on a 1977 amendment to the Illinois Pension Code that provided for the offset of workers' compensation benefits against municipal disability benefits (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 4-143 (repealed by Pub. Act 83-1440, § 2, eff. Jan. 1, 1985)), the Fund deducted plaintiff's monthly workers' compensation payments from this amount, reducing his monthly pension payments to $152.45 a month. In September 1983, plaintiff received a lump sum award of $45,000 under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). Subsequently, the Fund suspended plaintiff's monthly pension for three years and eight months, to offset the $45,000 award.

In December 1986, plaintiff filed this action against the Fund and the board of trustees of the Fund in the circuit court of Cook County. Plaintiff's action sought a declaration that because he was hired before the 1977 amendment to the Pension Code, his right to receive municipal disability benefits was vested and not subject to the offset provisions enacted in 1977. Defendants filed a motion to dismiss plaintiff's complaint on the ground that the court lacked jurisdiction to hear a declaratory judgment action seeking review of an administrative decision. The court granted defendants' motion and this appeal followed.

Plaintiff argues that the circuit court erred in dismissing his declaratory judgment action. He contends that his action merely requested that the court construe section 4-143 of the Pension Code and that the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) were therefore inapplicable. We disagree.

Section 2-701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701) provides that in cases of actual controversy, a court may make a declaration of rights, including the determination of the construction of any statute. However, section 3-102 of the Administrative Review Law provides that the provisions of the act shall apply to and govern every action to review judicially a final decision of any administrative agency. (Ill. Rev. Stat. 1985, ch. 110, par. 3-102.) This section, which was made applicable to the decisions of a pension board in section 4-139 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 4-139), does not require a formal decision to support an action for administrative review. Pearce Hospital Foundation v. Illinois Public Aid Comm'n (1958), 15 Ill. 2d 301, 154 N.E.2d 691.

Plaintiff claims that the Administrative Review Law applies only where a determination of fact, or the application of the law to certain facts, is at issue. He argues that because he was seeking construction of a statute, not a determination of fact, and because the court merely would be deciding a question of law and not preempting an administrative board's right to make a factual determination, the court erred in dismissing his action. Defendants argue that the Administrative Review Law makes no distinction between issues of fact and law and that plaintiff should not be allowed to use the declaratory judgment statute to avoid the purpose and effect of the Administrative Review Law. Both parties rely on Gualano v. City of Des Plaines (1985), 139 Ill. App. 3d 456, 487 N.E.2d 1050, and Peifer v. Board of Trustees (1976), 35 Ill. App. 3d 383, 342 N.E.2d 131, in support of their arguments.

In Peifer, plaintiff, a member of the Winnetka police force, filed a declaratory judgment action seeking to determine his right to retire and receive a regular pension after receiving a disability pension for several years. The appellate court reversed the dismissal of Peifer's complaint, holding that an actual controversy existed between Peifer and the board.

In Gualano, plaintiff, a Des Plaines fire fighter, was hired in 1969 and injured in the line of duty in 1979. As in the present case, Gualano's pension award was reduced by the amount of his workers' compensation award, pursuant to the 1977 amendment to the Pension Code. Gualano filed a declaratory judgment action in the circuit court, alleging in count I that the reduction of his pension benefits was improper. In count II, Gualano alleged that the pension board's computation of his pension failed to take into account accumulated vacation and sick days. The trial court granted defendants' motion for summary judgment as to count I and dismissed count II on the ground that it was barred due to Gualano's failure to comply with the Administrative Review Law. The appellate court affirmed the dismissal of count II, holding that the failure to comply with the act ...


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