Kocourek v. Bowling

421 N.E.2d 397, 96 Ill. App. 3d 310, 51 Ill. Dec. 889, 1981 Ill. App. LEXIS 2631
CourtAppellate Court of Illinois
DecidedMay 18, 1981
Docket80-1794
StatusPublished
Cited by12 cases

This text of 421 N.E.2d 397 (Kocourek v. Bowling) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kocourek v. Bowling, 421 N.E.2d 397, 96 Ill. App. 3d 310, 51 Ill. Dec. 889, 1981 Ill. App. LEXIS 2631 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Dorothea Kocourek (plaintiff) brought this action for administrative review of a decision of the Illinois Department of Labor and its officers (defendants) finding plaintiff ineligible for unemployment insurance benefits. Defendants moved to dismiss the complaint. After a hearing, the trial court denied defendants’ motion. The trial court also found in favor of plaintiff and reversed the decision of defendants.

On appeal by defendants they raise two issues which will be dealt with separately.

I

Defendants’ first argument is that the instant action was not timely filed. Therefore, they contend the trial court erred in denying defendants’ motion to dismiss the complaint. Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(e).

In Commonwealth Edison Co. v. Property Tax Appeal Board (1978), 67 Ill. App. 3d 428, 429-30, 384 N.E.2d 504, appeal denied (1979), 74 Ill. 2d 585, this court stated:

“Administrative [r]eview must be sought within 35 days of the date on which ‘a copy of the decision sought to be reviewed was served upon the party affected * ° V (Ill. Rev. Stat. 1977, ch. 110, par. 267.) As applicable here, there is the further provision in the same paragraph that ‘a decision shall be deemed to have been served 000 when deposited in the United States mail, in a sealed envelope ° 0 ” with postage prepaid, addressed to the party # <* * ’ ”

Defendants’ Board of Review evidenced its decision in a letter dated March 29, 1979. Plaintiff did not file her complaint until May 4, 1979, 36 days after March 29, 1979.

The parties have agreed defendants, as the moving party, bear the burden of establishing March 29,1979, as the mailing date of the decision. (See Pel-Aire Builders, Inc. v. Jimenez (1975), 30 Ill. App. 3d 270, 275, 332 N.E.2d 519.) The parties also agree on the level of proof necessary to establish such a mailing as set forth in the Commonwealth Edison Co. v. Property Tax Appeal Board decision (67 Ill. App. 3d 428, 430-31):

“[A] mailing may be proved by evidence of an office custom together with corroborating circumstances relevant to show the custom has been followed in the particular instance. [Citation.] The [affidavits] supplementing the motion and in opposition to it must be examined to see whether under these requirements a mailing on [the relevant date] has been proven. If, considering the affidavits, there remains a material and genuinely disputed question of fact, evidentiary testimony must be taken.”

See also Ill. Rev. Stat. 1977, ch. 110, par. 48(3).

Defendants’ motion to dismiss was originally supported by an affidavit from Abraham Robinson, the secretary of defendants’ Board of Review. Robinson stated only that the decision complained of was mailed to plaintiff “in due course of business” on March 29, 1979. This affidavit was withdrawn at the hearing on defendants’ motion and replaced by three new affidavits. In his new affidavit, Robinson detailed the procedures in which dated decisions are prepared and distributed for mailing. He also detailed the safeguards taken to insure decisions are mailed on the day of their date. He stated the usual procedure was followed on March 29, 1979.

On cross-examination, Robinson stated he might see from one to 100 cases each day, but not all cases under review by the Board áre seen by him personally. He could not recall the number of decisions he saw on March 29, 1979, and he could have seen from 25 to 100 or more. His conclusion that decisions dated March 29, 1979, were mailed on that day was based on office procedure and the fact that no safeguards were implemented on that day.

In his affidavit, George Knapik, a mail clerk, stated on March 29, 1979, he followed his general procedure of picking up outgoing mail and placing it in the out-mail unit. On cross-examination by plaintiff, Knapik testified he specifically recalled following this procedure on March 29, 1979, but could not remember any other details about that day such as the number of pieces of mail he picked up. On redirect examination, Knapik reiterated he follows the same procedure every day.

Helen Lawrence, defendants’ mail room supervisor, in her affidavit detailed the general procedure by which outgoing mail is stamped, sealed and placed at the loading dock for pickup by the United States Postal Service. She concluded this procedure was followed on March 29, 1979. However, she conceded that this conclusion was based solely on general office procedure and not on her personal knowledge. She admitted she did not particularly recall March 29,1979. On cross-examination, she testified the mail room may handle between zero and 40,000 pieces of mail on any given day.

Plaintiff submitted her own affidavit. She stated she received the notice of the decision on March 31, 1979. She discarded the envelope in which the decision was mailed and did not recall whether or on what date it may have been post-marked. Defendants did not cross-examine plaintiff.

On the basis of this evidence, the trial judge held defendants had not met the requisite standard of proving both office custom plus some corroborating circumstances. Defendants urge this ruling was in error and against the manifest weight of the evidence. We cannot agree. While defendants’ witnesses may have properly established the general procedures by which mail is processed, neither Robinson nor Lawrence claimed any personal recollection of this particular decision or of March 29, 1979. Knapik did claim specific recollection of March 29, but such recollection is neither credible nor dispositive in view of his limited responsibilities.

Defendants, citing Loughman Cabinet Co. v. C. Iber & Sons, Inc. (1977), 46 Ill. App. 3d 873, 361 N.E.2d 379, urge that because plaintiff did not contradict defendants’ affidavits, the facts alleged in them should be taken as true. Those affidavits, however, did not allege any corroborating facts in attempting to establish the March 29, 1979, mailing date. Only general office procedures were detailed with the conclusion that those procedures were followed on the date in question. Conclusory affidavits need not be accepted as true. (See Suing v. Catton (1970), 118 Ill. App. 2d 468, 470, 254 N.E.2d 806.) Furthermore, with her limited knowledge, plaintiff could not effectively challenge defendants’ statements as to defendants’ own procedures. Plaintiff’s affidavit did, however, sufficiently challenge the conclusions of defendants’ affidavits so as to create a question of fact as to the actual mailing date. See Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 347, 395 N.E.2d 1131.

The law applicable to this situation is clear.

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Bluebook (online)
421 N.E.2d 397, 96 Ill. App. 3d 310, 51 Ill. Dec. 889, 1981 Ill. App. LEXIS 2631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kocourek-v-bowling-illappct-1981.