{ "id": 5549492, "name": "JAMES B. DI FALCO, Appellee, v. THE BOARD OF TRUSTEES OF THE FIREMEN'S PENSION FUND OF THE WOOD DALE FIRE PROTECTION DISTRICT NO. ONE et al., Appellants", "name_abbreviation": "Di Falco v. Board of Trustees of the Firemen's Pension Fund", "decision_date": "1988-03-23", "docket_number": "No. 64803", "first_page": "22", "last_page": "34", "citations": [ { "type": "official", "cite": "122 Ill. 2d 22" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 N.Y.S.2d 153", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "59 A.D.2d 148", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3036937 ], "opinion_index": 0, "case_paths": [ "/ad2d/59/0148-01" ] }, { "cite": "380 Ill. 15", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2554720 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill/380/0015-01" ] }, { "cite": "54 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934533 ], "pin_cites": [ { "page": "263-64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0260-01" ] }, { "cite": "95 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111336 ], "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0211-01" ] }, { "cite": "99 S. Ct. 2032", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "60 L. Ed. 2d 397", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "441 U.S. 923", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780192, 1779881, 1780401, 1779889, 1779956, 1780372, 1779927, 1780472, 1779996, 1780189, 1780510 ], "opinion_index": 0, "case_paths": [ "/us/441/0923-02", "/us/441/0923-10", "/us/441/0923-01", "/us/441/0923-06", "/us/441/0923-07", "/us/441/0923-03", "/us/441/0923-08", "/us/441/0923-05", "/us/441/0923-11", "/us/441/0923-09", "/us/441/0923-04" ] }, { "cite": "72 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442891 ], "year": 1979, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0507-01" ] }, { "cite": "151 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540427 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0409-01" ] } ], "analysis": { "cardinality": 755, "char_count": 20175, "ocr_confidence": 0.791, "pagerank": { "raw": 3.245703824280944e-07, "percentile": 0.868590987351 }, "sha256": "591e9e72747ea4b0cd1417d2ea2810b4548c2b49d080d66a12c09831ce8ca42d", "simhash": "1:2cbc72606291d423", "word_count": 3354 }, "last_updated": "2023-07-14T17:57:13.564923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES B. DI FALCO, Appellee, v. THE BOARD OF TRUSTEES OF THE FIREMEN\u2019S PENSION FUND OF THE WOOD DALE FIRE PROTECTION DISTRICT NO. ONE et al., Appellants." ], "opinions": [ { "text": "CHIEF JUSTICE MORAN\ndelivered the opinion of the court:\nJames B. Di Falco submitted to the board of trustees of the Firemen\u2019s Pension Fund of Wood Dale Fire Protection District No. One (board) an application for a duty-related disability pension. The board dismissed the application as untimely. Thereafter, Di Falco, plaintiff herein, brought an action in the circuit court of Du Page County for administrative review against the defendants herein: the board; Wood Dale Fire Protection District No. One, Du Page County, Illinois (district); and the board of fire commissioners of Wood Dale Fire Protection District No. One (commissioners). The trial court affirmed the decision of the board to dismiss the application. The court also granted the motion of the commissioners to be dismissed as party defendants.\nOn appeal, the appellate court reversed the dismissal of plaintiff\u2019s application, finding that nothing within the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 101 et seq.) precluded discharged fire fighters from being eligible for a disability pension. The appellate court also affirmed the dismissal of the commissioners as party defendants. (151 Ill. App. 3d 409.) We allowed the remaining defendants\u2019 petition for leave to appeal under Rule 315 (107 Ill. 2d R. 315).\nThe issue presented for review is whether a probationary fire fighter is entitled to a disability pension when the fire fighter first applies for the pension a year after his discharge.\nThe relevant facts are undisputed. On June 1, 1982, plaintiff was appointed a probationary fireman-paramedic. While on duty in October 1982, he allegedly sustained injuries to his spine, necessitating a disability leave beginning about December 2,1982.\nOn May 2, 1983, plaintiff received a letter from the commissioners advising him that his probationary status would be extended for a period equal to the amount of time between December 2, 1982, to whenever he returned to full-time service. However, by letter dated May 26, 1983, the commissioners advised plaintiff that effective on that date he was no longer a member of the firefighting force of that district. Plaintiff has not contested in this court the legality of his discharge; therefore, for the purpose of review, we shall assume his discharge was proper.\nAlmost a year later, on May 24, 1984, plaintiff submitted his application for a duty-related pension to the defendant board pursuant to the terms of the Pension Code (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 110). The board ordered plaintiff to undergo examinations by three physicians as provided for in section 4 \u2014 112 of the Pension Code (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 112).\nBoth the defendant board and the trial court found that, as a matter of law, plaintiff was not entitled to apply for a disability pension, and dismissed plaintiff\u2019s application. The gist of the holding of the board and trial court, as well as of defendant\u2019s argument here, is that in order to qualify for a duty-related disability pension under section 4 \u2014 110, an individual must be a \u201cfireman,\u201d as used in that section, at the time of the application. Following this line of argument, defendants assert that, because plaintiff had been discharged May 26, 1983, he was no longer a \u201cfireman\u201d when he applied almost a year later for a pension, and therefore was not entitled to a pension.\nIn the face of defendant\u2019s argument concerning the meaning of \u201cfireman\u201d as used in section 4 \u2014 110, the appellate court found that there was no provision in the Illinois Pension Code at the time plaintiff entered the pension system that precluded application for a pension after discharge. The appellate court concluded that to foreclose plaintiff\u2019s right to apply for a disability pension after his discharge would have the effect of diminishing and impairing plaintiff\u2019s pension benefit rights in violation of section 5 of article XIII of the Illinois Constitution.\nThe Illinois Constitution provides that membership in a pension system of any local government unit in the State is \u201can enforceable contractual relationship, the benefits of which shall not be diminished or impaired.\u201d (Ill. Const. 1970, art. XIII, \u00a75.) After the effective date of the Constitution, the \u201ccontractual relationship\u201d is governed by the actual terms of the Pension Code at the time the employee becomes a member of the pension system. (Kerner v. State Employees\u2019 Retirement System (1978), 72 Ill. 2d 507, 514, cert. denied (1979), 441 U.S. 923, 60 L. Ed. 2d 397, 99 S. Ct. 2032.) Therefore, in determining plaintiff\u2019s rights under the Pension Code, we must look to the language of the relevant statutes in effect in 1982 when plaintiff began paying into the pension fund.\nPlaintiff applied for a duty-related disability pension under section 4 \u2014 110 of the Pension Code. Section 4\u2014 110 provides in relevant part:\n\u201cIf any fireman, as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty, is found, by the procedures specified in Section 4\u2014 112, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his being placed on disability pension, such disabled fireman shall be granted a disability pension of 65% of the monthly salary attached to the rank held by him in the Fire Department at the date he is removed from the municipality\u2019s Fire Department payroll.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 110.\nThe applicable definition of \u201cfireman\u201d is given in section 4 \u2014 106(c) as \u201cany person employed by a city in its fire service as a fireman, fire engineer, marine engineer, fire pilot, bomb technician, or scuba diver ***.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 106(c).\nThe central question in this case is whether the term \u201cfireman\u201d as used in section 4 \u2014 110 is operative at the time of the disability, or also at the time of application. In other words, must an applicant for a duty-related disability pension be a \u201cfireman\u201d both at the time of impairment and application, or only at the time of impairment.\nWhen a statute is ambiguous on its face, as is section 4 \u2014 110 even when read in conjunction with section 4\u2014 106, the court should look to similar statutes as an aid to construction. (Kozak v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 219.) In this case, upon reviewing article 4 of the Pension Code as a whole, it becomes apparent that the purpose of a duty-related disability pension is to help provide only for fire fighters (and their spouses and children) who, if not for the disability, would still be employed as fire fighters and drawing their regular salary. On the other hand, the scheme of the Pension Code indicates that the purpose of a duty-related disability pension would not be served by granting a disability pension to an applicant who is no longer employed as a fire fighter because he has been discharged.\nFor example, section 4 \u2014 101 provides that the firemen\u2019s pension fund is established for the benefit of \u201cfiremen as defined in Section 4 \u2014 106\u201d (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 101), that is, persons employed by a city in its fire service (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 106(c)). (See Peterson v. Board of Trustees of the Firemen\u2019s Pension Fund (1973), 54 Ill. 2d 260, 263-64.) Therefore, the benefit of a duty-related pension is intended to go to a particular class and the purpose of the establishment of that benefit is much more selective than that of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Accordingly, a discharged fire fighter is obviously not \u201cemployed,\u201d in any sense of the word, by a city in its fire service and the pension fund was not established for his benefit.\nSection 4 \u2014 112 of the Pension Code stands as further evidence of the selective purpose of a duty-related disability pension. Section 4 \u2014 112 governs the determination of disability and restoration to active service and provides in part:\n\u201c\u00a74 \u2014 112. Determination of Disability \u2014 Restoration to active service. *** Medical examination of a fireman receiving a disability pension shall be made at least once each year prior to attainment of age 50, as a check of the continuance of disability for service as a fireman. ***\nUpon satisfactory proof being made to the Board that a fireman on the disability pension roll has recovered from his disability, the Board shall order that his pension cease. The fireman shall report to the marshal or the chief of the fire department, who shall thereupon order his reinstatement into active service in the same rank or grade which he held at the date he was placed on disability pension.\u201d (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 112.)\nThus, a fire fighter on disability is subject to annual physical examinations, and, if no longer disabled, has the absolute right to return to duty. The statute is written in mandatory terms \u2014 \u201c[t]he fireman shall report to the marshal\u201d who \u201cshall thereupon order his reinstatement\u201d (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 112)\u2014and does not allow for exceptions for discharged fire fighters. Section 4 \u2014 112 does not allow the pension board to merely terminate a discharged fire fighter\u2019s disability pension but rather requires that the pensioner be reinstated. If a fire fighter were to be discharged before applying for a disability pension, and yet still be given a disability pension, the discharge would make reinstatement to active duty impossible and would preclude compliance with the dictates of section 4 \u2014 112. The provisions of section 4\u2014 112 thus strongly indicate that disability pensions are to be given only to fire fighters who would still be employed as fire fighters if not for their disability.\nSection 4 \u2014 113 further indicates that in order to begin receiving a disability pension, fire fighters must not have been discharged. Section 4 \u2014 113 provides in part:\n\u201cA fireman who has not completed 20 years of creditable service and is on the disability pension roll under any of the foregoing Sections whose disability continues for a period which when added to his period of active service equals 20 years may, if he is age 50 or more and he elects to retire from the fire service, exercise his option by written application to the Board and continue to receive a retirement pension equal to the same amount he was entitled to as a disabled fireman as of the date he was removed from the municipality\u2019s payroll for disability. A fireman electing to exercise such option shall be entitled to automatic increase benefits as provided in subdivision (a) of Section 4 \u2014 109.1.\u201d (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 113.)\nUnder section 4 \u2014 113, a fire fighter on disability \u201cunder any of the foregoing sections,\u201d including section 4 \u2014 110, may under certain circumstances elect to \u201cretire from the fire service\u201d and receive a retirement pension. A discharged fire fighter cannot \u201celect to retire\u201d from the fire service because he is no longer a part of the fire service. Only those fire fighters who have never been discharged may \u201celect to retire.\u201d Therefore, that the terms of section 4 \u2014 113 do not cover the possibility of a discharged fire fighter being on disability pension indicates that fire fighters on the disability roll under section 4\u2014 110 cannot include discharged fire fighters.\nInstead, the scheme of the Pension Code is to provide a refund for discharged fire fighters who have not received disability before being discharged. Section 4 \u2014 116 concerns the refunding of contributions paid by fire fighters into the pension fund and provides in pertinent part:\n\u201cA fireman having less than 20 years of service who resigns or is discharged, and who has not theretofore received any disability pension payments, shall be entitled to a refund of the total amount contributed to the fund from his salary during such service.\u201d (Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 116.)\nPlaintiff is entitled to a refund under section 4 \u2014 116, but not a disability pension under section 4 \u2014 110.\nIn summary, upon reviewing article 4 of the Pension Code as a whole, we conclude that the primary purpose of the establishment of a duty-related disability pension under section 4 \u2014 110 is to provide for the benefit of fire fighters who would still be employed as fire fighters and receiving a salary if not for the disability. Discharged fire fighters are no longer fire fighters because of the discharge, not the disability. To allow fire fighters who have been discharged to apply for disability pensions under section 4 \u2014 110 would disrupt the pension scheme established by the legislature. Accordingly, the term \u201cfireman\u201d as used in section 4 \u2014 110 is operative both at the time of impairment and application. To receive a disability pension under section 4 \u2014 110, a fire fighter must not have been discharged prior to application therefor.\nIn so holding, we are merely determining the actual terms of the pension in effect at the time plaintiff became a member of the pension system. Therefore, it was not a subsequent legislative enactment but rather plaintiff\u2019s failure to meet a condition precedent to his right to a pension \u2014 that is, to be a member of the fire service without termination at the time he applied for his pension \u2014 which prevented plaintiff from receiving a pension. Therefore, no rights or conditions of plaintiff\u2019s contract effective at the time he began service are diminished or impaired by denying him a pension.\nPlaintiff asserts that the conclusion we reach today will lead to abuse. According to plaintiff, pension boards will in the future merely discharge injured fire fighters before they have an opportunity to file for a duty-related pension and thereby avoid having to pay for the pension. Plaintiff has presented no evidence whatsoever of any such abuse in this case. In addition, we note that there are safeguards to prevent such abuse and the possibility of it happening are extremely minimal, if not nonexistent. First, in municipalities such as the defendant district, the board of fire commissioners and not the pension board controls the power of discharge. (Ill. Rev. Stat. 1985, ch. 127\u00bd, par. 37.13; cf. Ill. Rev. Stat. 1985, ch. 108, pars. 4 \u2014 122 through 4 \u2014 129.1.) Second, no member of any fire department may be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his defense. (Ill. Rev. Stat. 1985, ch. 24, par. 10 \u2014 2.1\u201417. See also Ill. Rev. Stat. 1985, ch. 24, par. 10-1-18; ch. 127\u00bd, par. 37.13.) As for so-called probationary fire fighters, even assuming defendants are correct in asserting that probationary fire fighters may be discharged without cause, that possibility does not remove the obligation of the employing municipality to act in good faith. (See Kennedy v. City of Joliet (1942), 380 Ill. 15; Edwards v. Codd (1977), 59 A.D.2d 148, 398 N.Y.S.2d 153.) Attempting to save pension funds would not constitute cause for discharge nor would a discharge for that purpose be, in certain circumstances, a good-faith exercise of the asserted authority to summarily discharge probationary fire fighters.\nPlaintiff also argues that the provisions of section 4\u2014 105b prevented him from applying for a disability pension before he was discharged. Section 4 \u2014 105b provides:\n\u201c \u2018Permanent disability\u2019: any physical or mental impairment that (a) can be expected to result in death, (b) has lasted for a continuous period of not less than 12 months, or (c) can be expected to last for a continuous period of not less than 12 months.\u201d (Ill. Rev. Stat. 1983, ch. 108\u00bd, par. 4-105b.)\nSection 4 \u2014 105b is obviously written in the disjunctive. Plaintiff need not have demonstrated all three elements before he was discharged May 26, 1983. Plaintiff need only have demonstrated that his physical impairment could be expected to last at least 12 months. The procedure for demonstrating that is given in section 4 \u2014 112. Section 4 \u2014 105b in no way prevented plaintiff from making a timely application.\nFinally, plaintiff asserts that the term \u201cfireman\u201d is used in certain sections of the Pension Code to refer to persons other than those currently in service as fire fighters. For example, in section 4 \u2014 109, the following language is used:\n\u201cAny fireman age 50 or more who has creditable service of 20 years or more, and is no longer in service as a fireman, shall receive ***.\u201d (Emphasis added.) Ill. Rev. Stat. 1981, ch. 108\u00bd, par. 4 \u2014 109.\nPlaintiff has ignored the effect of section 4 \u2014 102. Section 4 \u2014 102 provides that the term \u201cfireman\u201d shall have the meaning ascribed to it in section 4 \u2014 106, \u201cexcept when the context otherwise requires.\u201d (Ill. Rev. Stat. 1981, ch. 108, par. 4 \u2014 102.) The phrase \u201cno longer in service as a fireman\u201d used in section 4 \u2014 109 is a change in the context of the definition of \u201cfireman\u201d as used in that section. In section 4 \u2014 110, to the contrary, there is no such contextual phrase and therefore the term \u201cfireman\u201d in section 4 \u2014 110 refers only to fire fighters currently in service.\nIn conclusion, fire fighters applying for a duty-related pension under section 4 \u2014 110 of the Illinois Pension Code must still be employed as fire fighters at the time of application. Plaintiff was discharged from the fire service almost a year before he applied for a pension. Therefore, his application for a pension was properly dismissed. For the reasons stated, we reverse the appellate court and affirm the order of the trial court.\nAppellate court reversed; circuit court affirmed.", "type": "majority", "author": "CHIEF JUSTICE MORAN" }, { "text": "JUSTICE WARD\ndissenting:\nI consider that the statutory interpretation of the majority is overly restrictive and that the appellate court properly analyzed the statute\u2019s intendment. Under the majority\u2019s narrow and literal view, eligibility for a line-of-duty disability pension is restricted to actively serving firemen. One who has been discharged from service has no pension disability rights even though, under the majority\u2019s view, the disability did not manifest itself until the fireman had been separated from municipal service. I do not consider that such a result was intended by the legislature.\nJudging from the record, the position of the appellants appears to be something less than admirable. The plaintiff served as a paid on-call fireman from September 1977 until June 1, 1982, when he was appointed to the position of a probationary fireman-paramedic. He began contributions to the pension fund at the time he began work as a probationary fireman. It appears he was on duty in October 1982 when he received injuries to his spine, requiring his being placed in December 1982 on full physical-disability leave. The following May he was informed that in February 1983 his probationary status had been extended for a period to be equal to the time he would be on physical-disability leave. Inexplicably, from the record, on May 26, 1983, he was informed that effective that date he was no longer a member of the department.\nThat the plaintiff did not apply for a duty-related pension until almost a year later appears to be without significance, as he states that he was entitled to full salary for a year under an applicable statute (Ill. Rev. Stat. 1981, ch. 70, par. 91). Too, as the appellate court noted, the Illinois Pension Code does not prescribe a specific time period within which an employee must apply for a pension.\nI cannot agree with the majority\u2019s holding that an applicant for a duty-related disability pension must in the literal sense of the word be a fireman both at the time of injury and at the time of application for disability benefits.", "type": "dissent", "author": "JUSTICE WARD" } ], "attorneys": [ "Klein, Thorpe & Jenkins, Ltd., of Chicago (Arthur C. Thorpe and James P. Bartley, of counsel), for appellants.", "Le Roy W. Gudgeon, Esq., of Northfield, for appellee." ], "corrections": "", "head_matter": "(No. 64803.\nJAMES B. DI FALCO, Appellee, v. THE BOARD OF TRUSTEES OF THE FIREMEN\u2019S PENSION FUND OF THE WOOD DALE FIRE PROTECTION DISTRICT NO. ONE et al., Appellants.\nOpinion filed March 23, 1988.\nWARD, J., dissenting.\nKlein, Thorpe & Jenkins, Ltd., of Chicago (Arthur C. Thorpe and James P. Bartley, of counsel), for appellants.\nLe Roy W. Gudgeon, Esq., of Northfield, for appellee." }, "file_name": "0022-01", "first_page_order": 32, "last_page_order": 44 }