{ "id": 3569414, "name": "HERMAN A. GUALANO, Plaintiff-Appellant, v. THE CITY OF DES PLAINES et al., Defendants-Appellees", "name_abbreviation": "Gualano v. City of Des Plaines", "decision_date": "1985-12-23", "docket_number": "No. 84-3082", "first_page": "456", "last_page": "460", "citations": [ { "type": "official", "cite": "139 Ill. App. 3d 456" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "63 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "350 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382902 ], "year": 1976, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0476-01" ] }, { "cite": "101 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "410 Ill. 35", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311188 ], "weight": 2, "pin_cites": [ { "page": "37-38" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0035-01" ] }, { "cite": "392 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3264925 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0894-01" ] }, { "cite": "479 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 566", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530042 ], "weight": 3, "pin_cites": [ { "page": "572" }, { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0566-01" ] }, { "cite": "478 N.E.2d 1123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530365 ], "weight": 2, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0415-01" ] }, { "cite": "441 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448624 ], "pin_cites": [ { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0919-01" ] }, { "cite": "435 N.E.2d 1307", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029952 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0603-01" ] }, { "cite": "390 N.E.2d 1281", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582712 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0833-01" ] } ], "analysis": { "cardinality": 503, "char_count": 9454, "ocr_confidence": 0.747, "pagerank": { "raw": 1.6833209830424459e-07, "percentile": 0.6979167511310505 }, "sha256": "c240587f3e7b07b34a73611a2b090c431ee6922eb62eabd00c05b78b85b04b34", "simhash": "1:186854fdaad7d479", "word_count": 1554 }, "last_updated": "2023-07-14T16:28:01.821667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HERMAN A. GUALANO, Plaintiff-Appellant, v. THE CITY OF DES PLAINES et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nOn October 2, 1967, plaintiff Herman Gualano joined the Des Plaines Fire Department whose pension fund is administered by-defendant, the board of trustees of the firemen\u2019s pension fund of the city of Des Plaines (the board). He was injured while on duty in November of 1979. Although Gualano did not work, he was paid his full salary for one year by defendant, the city of Des Plaines (the city). The salary payments were terminated as of November 28, 1980. Gualano wrote to a fire department official requesting payment for 40 days of accumulated sick leave, reduction days and holiday and vacation days, but no further action was taken. Gualano then applied for a disability pension. After a hearing was held, he was granted a disability pension based on a termination date of November 28, 1980. Shortly thereafter he received a workers\u2019 compensation award in the amount of $1,077. On February 6, 1984, the board acted to reduce Gualano\u2019s disability pension benefits by the amount of his workers\u2019 compensation award.\nOn February 29, 1984, Gualano filed the instant two-count suit for declaratory judgment. In count I, Gualano alleged that the reduction of his pension benefits by the amount of his worker\u2019s compensation award was improper. In count II, Gualano contended that the board\u2019s computation of his pension based on a termination date of November 28, 1980, failed to take into account 40 days of accumulated sick leave, reduction days, and holiday and vacation days. He claims that the city should have either kept him on the payroll for an additional 40 work days which would have qualified him for a larger pension or paid him for those accumulated days.\nThe trial court granted defendants\u2019 motion for summary judgment with respect to count I and, on the board\u2019s motion, dismissed count II of the complaint on the grounds that it was barred for failure to comply with the provisions governing judicial review of administrative decisions.\nTwo issues are raised by plaintiff\u2019s appeal: (1) whether the reduction of his pension by the amount of his worker\u2019s compensation award was proper; and (2) whether a declaratory judgment action is an appropriate method seeking judicial review of the allegations in count I of his complaint.\nAs to the first issue, the Illinois Constitution provides that membership in a pension system of any local governmental 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, sec. 5.) An employee\u2019s rights in the system vest, either at the time he enters the system or in 1971 when the 1970 Constitution became effective, whichever is later. (Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 390 N.E.2d 1281.) \u201cVesting\u201d refers to the employee\u2019s acquisition of a contractual right to the benefits of the pension system. Kuhlmann v. Board of Trustees (1982), 106 Ill. App. 3d 603, 607 n.1, 435 N.E.2d 1307.\nBecause vesting is thus defined in a contractual sense, an employee\u2019s \u201ccontractual relationship\u201d with the State incorporates the law which exists at the time when his contractual rights to his pension vest. (See Board of Trustees v. Department of Insurance (1982), 109 Ill. App. 3d 919, 927, 441 N.E.2d 107.) Prior to 1974, employees\u2019 pension rights were limited by a provision in the Workers\u2019 Compensation Act which provided that a governmental employee\u2019s pension benefits must be reduced by the amount of money received under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1(b)(1)). In 1974,however, the Workers\u2019 Compensation Act was amended to eliminate this provision. It was not until 1977, that the Pension Code was amended to insert a similar provision that pension benefits were to be reduced by Workers\u2019 Compensation benefits being received. Ill. Rev. Stat. 1977, ch. 108\u00bd, par. 4-143.\nTwo districts of the appellate court have considered the question of whether an employee\u2019s vested pension rights were increased by the elimination of the reduction provision of the Workers\u2019 Compensation Act. In Sellards v. Board of Trustees (1985), 133 Ill. App. 3d 415, 478 N.E.2d 1123, a panel from the First District rejected the argument that an employee\u2019s pension rights were increased by the elimination of section 1(b)(1) (Ill. Rev. Stat. 1973, ch. 48, par. 138.1(b)(1)), stating that an employee\u2019s pension rights are fixed at the time of vesting and \u201c[t]he Constitution does not provide that a person has a vested right in any beneficial changes in a pension system.\u201d Sellards v. Board of Trustees (1985), 133 Ill. App. 3d 415, 417.\nHowever, in Taft v. Board of Trustees (1985), 133 Ill. App. 3d 566, 479 N.E.2d 31, the Second District held that where a pension system increases an employee\u2019s benefits, the employee can take advantage of a beneficial pension change when he provides additional consideration for the contractual modification, usually taking the form of new or continued contributions to the pension system. (133 Ill. App. 3d 566, 572, 479 N.E.2d 31.) Because the employee in Taft continued to contribute to his pension fund following the repeal of section 1(b)(1), his contractual rights to his pension benefits increased and he was vested with additional rights. (133 Ill. App. 3d 566, 572-73, 479 N.E.2d 31.) The supreme court denied leave to appeal in Taft.\nWe find that the contractual analysis used in Taft is supported by other cases which recognize that an employee may not acquire contractual right to a beneficial change in the pension system unless the employee provides additional consideration for the contractual modification. (Kuhlmann v. Board of Trustees (1982), 106 Ill. App. 3d 603; Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 392 N.E.2d 101; Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 849, 390 N.E.2d 1281.) We elect to follow Taft rather than Sellar\u00e1s.\nIn the instant case, plaintiff continued to contribute to his pension fund following the elimination of section 1(b)(1). This modified plaintiff\u2019s contractual rights and resulted in the vesting of right to an additional pension benefit. The subsequent enactment of section 4\u2014 103 of the Pension Code reinstituting the reduction provision could not constitutionally diminish his vested rights. Therefore, the reduction of plaintiff\u2019s pension benefits by the amount of his worker\u2019s compensation was improper. We reverse the trial court\u2019s grant of summary judgment for defendants and remand the cause with directions to grant plaintiff\u2019s motion for summary judgment.\nWith respect to the second issue raised on appeal, plaintiff now attempts to characterize count II of his complaint as asserting separate and distinct claims against the board and the city. He asserts that count II seeks judicial review of the board\u2019s computation of his disability pension and the city\u2019s refusal either to keep him on the city payroll or pay him for 40 days of accumulated sick leave and vacation days. However, it appears from the language of plaintiff\u2019s prayer for relief in count II that his claim in essence focuses on the board\u2019s computation of his pension. The trial court dismissed count II as against both defendants.\nThe Administrative Review Act, now codified as Ill. Rev. Stat. 1983, ch. 110, pars. 3 \u2014 101 to 3 \u2014 112, governs judicial review of a final decision of an administrative agency where such manner of review is expressly provided for in the act creating or conferring power on the agency. (Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 101 N.E.2d 71.) Where administrative review is expressly provided for, resorting to any other mode of judicial review is improper. (410 Ill. 35, 37-38, 101 N.E.2d 71.) In order to obtain judicial review of an administrative decision, plaintiff must file a complaint within 35 days from the date that a copy of the decision sought to be reviewed was served on the party affected. (Ill. Rev. Stat. 1983, ch. 110, par. 3\u2014 103.) The 35-day limitation is a jurisdictional requirement, and a plaintiff who fails to file a complaint \"within the specified time is barred from seeking review of the administrative decision. Varnes v. Dougherty (1976), 39 Ill. App. 3d 476, 479, 350 N.E.2d 6, appeal denied (1976), 63 Ill. 2d 564.\nHere, section 4 \u2014 139 of the Pension Code (Ill. Rev. Stat. 1983, ch. 108\u00bd, par. 4 \u2014 139) specifically provides that the Administrative Review Act shall govern the board's computation of plaintiff's pension. Plaintiff\u2019s disability pension was awarded on May 14, 1981, but he did not seek judicial review until February 29, 1984, 32 months later. Clearly, the trial court lacked jurisdiction to review the board\u2019s decision and properly dismissed count II as against the board. The trial court also dismissed count H as against the city, finding that it was \u201cnothing more than a thinly veiled attempt to avoid the effect and purpose of the Administrative Review Act.\u201d We affirm the trial court\u2019s dismissal of count II.\nAffirmed in part, reversed in part and remanded with directions.\nBUCKLEY, P.J., and QUINLAN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Le Roy W. Gudgeon, of Northfield, for appellant.", "Di Leonard! & Broihier, Ltd., of Des Plaines (John C. Broihier, of counsel), for appellees." ], "corrections": "", "head_matter": "HERMAN A. GUALANO, Plaintiff-Appellant, v. THE CITY OF DES PLAINES et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 84-3082\nOpinion filed December 23, 1985.\nLe Roy W. Gudgeon, of Northfield, for appellant.\nDi Leonard! & Broihier, Ltd., of Des Plaines (John C. Broihier, of counsel), for appellees." }, "file_name": "0456-01", "first_page_order": 478, "last_page_order": 482 }