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11/20/96 CAROLE J. KATZ v. WESTLAWN CEMETERY

November 20, 1996

CAROLE J. KATZ, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS-APPELLANTS/CROSS-APPELLEES,
v.
WESTLAWN CEMETERY ASSOCIATION, INC., A CORPORATION, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; ACACIA PARK CEMETERY AND MAUSOLEUM CORPORATION; MOUNT AUBURN MEMORIAL PARK, INC.; CHAPEL HILL GARDENS (SOUTH); CHAPEL HILL GARDENS (WEST); CLARENDON HILLS CEMETERY; CONCORDIA CEMETERY; EDEN CEMETERY; ELM LAWN CEMETERY; ELMWOOD CEMETERY AND MAUSOLEUM COMPANY; GRACELAND CEMETERY AND CREMATORIUM; IRVING PARK CEMETERY; MEMORIAL PARK CEMETERY; LINCOLN CEMETERY; MONTROSE CEMETERY CO.; MT. EMBLEM CEMETERY; MOUNT GREENWOOD CEMETERY ASSOCIATION; MOUNT HOPE CEMETERY ASSOCIATION, INC.; OAK HILL CEMETERY; OAK WOODS CEMETERY ASSOCIATION; RIDGEWOOD CEMETERY CO.; ROSEHILL CEMETERY CO.; SHALOM MEMORIAL PARK; RANDHILL PARK CEMETERY ASSOCIATION, INC; WOODLAWN CEMETERY OF CHICAGO, INC.; BEVERLY CEMETERY; EVERGREEN CEMETERY & MAUSOLEUM; AND CEMETERIES ASSOCIATION OF GREATER CHICAGO, INC., A CORPORATION, DEFENDANTS-APPELLEES/CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Dorothy Kinnaird, Judge Presiding.

Released for Publication January 15, 1997.

Presiding Justice Tully delivered the opinion of the court. Cerda and Gallagher, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiff Carole J. Katz, individually, and on behalf of a class of similarly situated individuals, filed this class action against defendants, Westlawn Cemetery Association, Inc., on behalf of all others similarly situated, Acacia Park Cemetery and Mausoleum Corporation, Mount Auburn Memorial Park, Inc., Chapel Hill Gardens (South), Chapel Hill Gardens (West), Clarendon Hills Cemetery, Concordia Cemetery, Eden Cemetery, Elm Lawn Cemetery, Elmwood Cemetery and Mausoleum Company, Graceland Cemetery and Crematorium, Irving Park Cemetery, Memorial Park Cemetery, Lincoln Cemetery, Montrose Cemetery Co., Mt. Emblem Cemetery, Mount Greenwood Cemetery Association, Mount Hope Cemetery Association, Inc., Oak Hill Cemetery, Oak Woods Cemetery Association, Ridgewood Cemetery Co., Rosehill Cemetery Co., Shalom Memorial Park, Randhill Park Cemetery Association, Inc., Woodlawn Cemetery of Chicago, Inc., Beverly Cemetery, Evergreen Cemetery & Mausoleum, and Cemeteries Association of Greater Chicago, Inc., a corporation. In her fifth amended complaint, Katz alleged intentional infliction of emotional distress (count I), tortious interference with property rights (count II), breach of contract (count III) and civil conspiracy (count IV). On January 6, 1995, the trial court granted defendants' motion to completely dismiss the complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1994); it is from this order that plaintiff appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court Rule 301 (155 Ill. 2d R. 301). Defendants cross-appeal from the same order pursuant to Supreme Court Rule 303(a)(3) (155 Ill. 2d R. 303(a)(3)).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The genesis of this action is a labor strike by Chicago-area gravediggers, represented by their union, Local Union 106, Service Employees International Union, AFL-CIO, against the 27 defendant cemeteries and the subsequent lockout of strikers by defendants. On December 19, 1991, after contract renewal negotiations between defendants, represented by their collective bargaining agent, the Cemeteries Association of Greater Chicago, Inc. (hereinafter the "Association") and the union broke down, the union went on strike against four defendant cemeteries: Beverly Cemetery, Oak Hill Cemetery, Lincoln Cemetery and Memorial Park Cemetery. In response, defendants locked out their union employees. Consequently, burials in the ordinary course of business ceased.

On January 3, 1992, Mrs. Rose Michaels, plaintiff's mother and an Orthodox Jew, passed away. In 1973, Mrs. Michaels and her husband had purchased burial plots at Westlawn Cemetery. Orthodox Jewish religious tradition requires burial of the dead within 24 hours of death. During the lockout, plaintiff requested that her mother be buried at Westlawn Cemetery, which Westlawn allegedly refused to do due to the lockout. Consequently, plaintiff's family was unable to bury Mrs. Michaels in keeping with Orthodox Jewish tradition. The instant litigation followed.

ISSUES PRESENTED FOR REVIEW

On appeal, plaintiff posits that: (1) the trial court erred in holding that she did not have standing to sue the alleged co-conspirators for tortious acts that resulted in her alleged injury; (2) the trial court erred in holding that her allegations of civil conspiracy were not stated with sufficient specificity; (3) the trial court erred in holding that her claim for intentional infliction of emotional distress was time-barred; and (4) the trial court erred in holding that her claim for intentional infliction of emotional distress and tortious interference with property rights were preempted by the National Labor Relations Act.

OPINION

From the outset of their briefs, defendants argue that all plaintiff's claims are preempted by the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq. (1988)). We note that plaintiff has not appealed from the trial court's ruling that her breach of contract claim in count III was preempted and, therefore, we find the issue has been waived. See Jordan v. Civil Service Commission, 246 Ill. App. 3d 1047, 186 Ill. Dec. 903, 617 N.E.2d 142 (1993). Accordingly, we express no opinion herein as to the viability of such a claim. Nevertheless we agree with defendants that the NLRA preempted plaintiff's tort claims in counts I, II and IV and, thus, on de novo review affirm the judgment of the circuit court.

The Supremacy Clause of the United States Constitution provides that the Federal Constitution, Federal statutes and treaties "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Thus, the Supremacy Clause forbids State encroachment on areas regulated by Congress, whether Congress mandate is "explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977). The NLRA, as an act of Congress, is the supreme law of the land and necessarily preempts any conflicting ...


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