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Burns v. Department of Employment Security

August 12, 2003

HELEN BURNS, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR, THE DEPARTMENT OF EMPLOYMENT SECURITY; THE DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW; AND PRN HEALTHCARE SERVICES, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County 99 L 51272 Honorable John A. Ward, Judge Presiding

The opinion of the court was delivered by: Presiding Justice McBRIDE

UNPUBLISHED

This is an appeal from the circuit court's dismissal of Gloria M. Burns' (Burns) *fn1 complaint for administrative review of the Illinois Department of Employment Securities' (Department) denial of her request for unemployment benefits. PRN Healthcare Services, Inc., n/k/a Novastaff Healthcare Services, Inc. (PRN), Burns' former employer, objected to the court's jurisdiction on the grounds that Burns had failed to serve PRN at its principal place of business as required under the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq., (West 2000)). The court agreed that Burns had failed to strictly comply with the Review Law. Additionally, the court held that Burns failed to show that the good-faith exception applied to excuse her noncompliance. Thus, it dismissed her complaint for review.

The record reveals that on June 11, 1999, Burns was terminated from her employment by PRN, allegedly for "excessive cancellations of assigned shifts." Ten days later, she filed a claim with the Department, seeking payment of unemployment benefits. PRN appeared in that proceeding through its agent Unemployment Consultants, Inc. (Unemployment Consultants), which is located in Arlington Heights, Illinois. Unemployment Consultants was authorized as PRN's designated agent with regard to Burns' claim in the Department and accordingly received notices in the administrative proceeding on behalf of PRN.

Unemployment Consultants' address was the only address of record for PRN in the administrative proceeding. *fn2 Only one page in the administrative record reflects any other address for PRN, and that page is the termination letter issued to Burns. The top of the letterhead says "PRN Healthcare Services Inc." The letter is signed by a "Vice President," and the bottom of letter shows a number and street address in Oak Brook, Illinois, and telephone and facsimile numbers. The letter does not identify the address as PRN's only place of business or its principal place of business. Apparently the last location at which Burns worked for PRN was Hinsdale Hospital in Hinsdale, Illinois.

The Board of Review of the Department (Board) mailed its final decision (Decision) affirming the referee's denial of Burns' request for unemployment benefits on November 3, 1999. It was sent to Burns and to PRN, care of Unemployment Consultants. A document that generally described the procedures and time limitations for judicial review of the Decision accompanied the copy of the Decision mailed to Burns. The only address listed for PRN on the Decision was the address of Unemployment Consultants.

On December 7, 1999, Burns appeared at the office of the circuit clerk of Cook County seeking to appeal the Decision. When Burns approached the clerk with her copy of the Decision, the clerk directed her to the pro se desk for assistance in preparing the necessary papers for filing. At the pro se desk, an attendant took the copy of the Decision and, based on the information contained therein, drafted a complaint for review and a summons. The attendant addressed the summons to the Board, the Director of the Department (Director), and PRN, care of Unemployment Consultants at the Arlington Heights address listed for PRN on the Decision. Burns then took the complaint and summons to the clerk, who filed the complaint and issued the summons to the Board, the Director, and PRN.

Unemployment Consultants forwarded the summons and complaint to PRN, which filed its "Special and Limited Appearance of Defendant PRN Healthcare Services, Inc. for Purposes of Objecting to the Court's Jurisdiction over the Person of PRN" (Objection) on January 19, 2000. PRN attached the affidavit of Joanne M. Phillips, its president and sole shareholder, to the Objection. The affidavit identified PRN's place of business only as Oak Brook, Illinois, and did not provide a street address or post office box to which mail could be delivered. PRN argued that the court lacked jurisdiction because Burns failed to serve it at its principal place of business as required under the Review Law. Burns conceded that she did not serve PRN at its principal place of business, but instead served it at the address of Unemployment Consultants, its designated agent in the administrative proceedings. She claimed that she acted properly and in good faith in serving PRN through Unemployment Consultants, that any error in service was inconsequential, and that the legislature intended for appeals of administrative decisions to be heard on their merits. Thus, she claimed, the court should excuse any noncompliance with the Review Law.

During its consideration of PRN's Objection, the court ordered the parties to submit briefs on the relation of the pro se desk to the clerk of the court. Burns argued that the pro se desk performed "an administrative function indistinguishable from the Clerk of Courts" and, consequently, that an error committed by the pro se desk attendant should be treated the same as an error by the clerk of court when considering whether the failure to serve PRN at its principal place of business should be excused under the good-faith exception. PRN countered that the pro se desk differs significantly from the clerk of the court because its services are sought voluntarily and that the good-faith exception applies only in cases where errors are made by the clerk of the court. The court subsequently dismissed Burns' complaint, finding that Burns had failed to comply with the strict service requirements of the Review Law and had failed to show the that she acted good faith to excuse her noncompliance. Its finding with regard to good faith was based on its acceptance of PRN's argument that the good-faith exception was inapplicable where the error in service was made by the pro se desk.

The primary issues raised on appeal are (1) whether Burns properly served PRN under the Review Law, in which case dismissal was improper, and (2) whether, if service was not proper, the good-faith exception applies to excuse Burns' noncompliance. The parties raise other minor and related issues, which we will address to the extent they are necessary to the disposition of this appeal.

We discuss one of these additional issues first. Burns argues that PRN has waived its right to object to the service of summons by filing a motion to reconsider in the trial court. Essentially, Burns claims that filing the motion to reconsider constituted a general appearance on the part of PRN and gave the circuit court jurisdiction over PRN in the review proceeding. We do not find the motion to reconsider constituted a general appearance. Nor do we conclude that PRN waived its right to contest service by filing the motion.

Significantly, the first pleading PRN filed in this case was its Objection, in which it claimed that the trial court lacked jurisdiction over PRN because Burns failed to serve PRN at its principal place of business as required under the Review Law. The circuit court did not immediately rule on PRN's Objection. Instead, it gave both sides time to respond in writing. The court then heard oral argument on the Objection. The court, however, determined that it needed additional information, including whether PRN had party status in the administrative proceeding, before it could rule on PRN's Objection. Thus, it remanded the matter to the Department for additional review. After a supplemental hearing, the Board found that PRN had party status.

Subsequently, Burns petitioned the trial court for a second remand, claiming that the first hearing was inadequate because the referee did not have the original administrative file at the time of the hearing. The court granted Burns' motion for remand. PRN then filed its motion to reconsider, by which motion, Burns contends, PRN waived its right to object to improper service of summons. We disagree.

PRN did not waive its right to object because it had already exercised that right, and it was in the course of exercising that right that PRN filed its motion to reconsider. The motion was filed in the sequence of the circuit court's extended consideration of PRN's Objection. Thus, we hold that PRN did not waive its right to contest service by filing its motion to reconsider. Regardless, "even in the absence of a timely objection, the requirements of the Administrative Review Law are not waivable." Gilty v. Village of Oak Park Board of Fire & Police Commissioners, 218 Ill. App. 3d 1078, 1086 (1991); see also Brazas v. Property Tax Appeal Board, 309 Ill. App. 3d 520 (1999).

We turn now to PRN's objection to jurisdiction, which was brought under section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 2000)). Such objections raise questions of law, which we consider de novo. Cameron v. Owens-Corning Fiberglas Corp., 296 Ill. App. 3d 978, 983 (1998). In cases such as this, where no disputed facts are at issue, our review is the same as for a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2000)); thus, we may consideraffidavits and counter affidavits on file. ...


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