Petrik v. Monarch Printing Corp.

493 N.E.2d 616, 143 Ill. App. 3d 1, 97 Ill. Dec. 809, 1 I.E.R. Cas. (BNA) 1460, 1986 Ill. App. LEXIS 2159
CourtAppellate Court of Illinois
DecidedApril 22, 1986
Docket85-1795
StatusPublished
Cited by9 cases

This text of 493 N.E.2d 616 (Petrik v. Monarch Printing Corp.) 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
Petrik v. Monarch Printing Corp., 493 N.E.2d 616, 143 Ill. App. 3d 1, 97 Ill. Dec. 809, 1 I.E.R. Cas. (BNA) 1460, 1986 Ill. App. LEXIS 2159 (Ill. Ct. App. 1986).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff, Emil Petrik, appeals from a grant of summary judgment for defendant on his claim that he was the victim of a “retaliatory discharge,” in violation of public policy. We affirm.

On April 6, 1979, plaintiff, Emil Petrik, was discharged from his employment with defendant, Monarch Printing Corporation, a closely held corporation. Plaintiff was hired by defendant in 1975, and held the position of controller at the firm until 1978, when he became vice-president — finance.

Following his termination, plaintiff filed the present suit. Plaintiff’s second amended complaint consisted of three counts. In count I, plaintiff sought expenses and overtime pay allegedly accrued while he was a Monarch employee; in counts II and III, he alleged that his firing was a retaliatory discharge and sought compensatory and punitive damages. Specifically, plaintiff claimed that in September 1978, in the course of his duties, he discovered a $130,000 discrepancy in Monarch’s financial books and records, and that he immediately informed Herbert C. Hansen, Monarch’s president and chief operating officer. Plaintiff claimed that he later discovered what he characterized as misconduct by Hansen and others in their purchase of Monarch capital stock from John Selig, formerly Monarch’s principal owner. Plaintiff alleged that the present Monarch owners had agreed to purchase the company from Selig for $640,000 and that 25% of this purchase price was to be paid for by a loan obtained from La Salle National Bank. Selig transferred his final shares in June 1978 to Herbert Hansen and John H. Crewdson, who became the sole shareholders, with Hansen owning a majority of the stock. According to the complaint, the purchase price was to be paid totally out of personal funds, but plaintiff alleged that some of the loan payments and some payments to Selig were improperly made from Monarch’s own corporate funds. Because plaintiff did not allege that he had reported his suspicions of wrong-doing to the authorities, the circuit court granted defendant’s motion to dismiss. This court reversed. (Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588.) This court stated:

“In the instant case the crux of Petrik’s complaint is clear. He alleged that in the course of performing his duties at Monarch he discovered a discrepancy in the corporation’s financial records which he believed may have been due to criminal conduct; he investigated the source of the discrepancy and in an effort to force Monarch to comply with the Illinois Criminal Code he reported his suspicions to Monarch’s management. Monarch then discharged Petrik allegedly to aid in the concealment of its wrongdoing and in retaliation for his efforts to ensure management’s compliance with the requirements of the criminal law. Accepting, as we must, the truth of the allegations, it is apparent that Petrik’s complaint involves something more than an ordinary internal dispute between an employee and his employer.” 111 Ill. App. 3d 502, 508, 444 N.E.2d 588, 592.

After remand from this court, defendant made a motion for summary judgment in the circuit court and filed affidavits from its officers together with other documentary evidence. The circuit court held a hearing on defendant’s motion on May 1, 1984. Plaintiff’s counsel conceded that he had no evidence of embezzlement. Further, plaintiff admitted in a deposition that the $130,000 discrepancy that he had alleged in his complaint was actually due to missing documentation for items otherwise recorded in the company’s ledger, and apparently most of this documentation has now been pieced together. Plaintiff’s counsel also admitted that he was not asserting any tax or securities law violations on the part of defendant’s owners or officials.

The circuit court granted summary judgment on counts II and III of plaintiff’s complaint, but withheld decision on count I, the overtime claim. On July 11, 1984, plaintiff filed a separate action against defendant, alleging that defendant improperly destroyed financial records pertinent to this litigation. The circuit court consolidated the new suit with the present one. On June 3, 1985, after the hearing on the motion, the circuit court denied plaintiff’s motion to vacate the summary judgment, but certified, pursuant to Supreme Court Rule 304(a) (103 Ill. 2d, R. 304(a)), that there was no just reason to delay appeal from judgment on the second and third counts, although plaintiff’s other claims were still pending. This appeal followed.

Because the circuit court granted summary judgment for defendant on plaintiff’s claim, the issue on appeal is whether defendant has shown that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on that claim. (Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 197, 415 N.E.2d 1099, 1102.) In attempting to defeat defendant’s motion for summary judgment, plaintiff cannot rest on his complaint but must submit affidavits and other documentary evidence to create an issue of fact. (Zannis v. Lake Shore Radiologists, Ltd. (1982), 104 Ill. App. 3d 484, 487, 432 N.E.2d 1108, 1110.) Although plaintiff has abandoned his embezzlement theory alleged in his second amended complaint, defendant did not object to the variance between plaintiff’s pleading and proof, and hence any such defect is waived. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 518, 377 N.E.2d 21, 24; Ill. Rev. Stat. 1983, ch. 110, par. 2—612(c).

The Illinois Supreme Court first recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The court ruled that an employee at will could obtain compensatory and punitive damages if discharged for filing a workers’ compensation claim, because of the strong public policy and comprehensive legislative scheme to compensate workers for work-related injuries. The court has subsequently handed down a series of rulings on retaliatory discharge in the workers’ compensation area. See Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280 (employees under collective bargaining agreement can sue if discharged for filing for workers’ compensation, because retaliatory discharge is a tort, not a contract action), cert. denied (1985), ___ U.S. ___, 87 L. Ed 2d 642, 105 S. Ct. 3513, and cert. denied (1985), 474 U.S. ___, 88 L. Ed. 2d 243, 106 S. Ct. 278; Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935 (employees can sue an employer if discharged for having filed a workers’ compensation claim with a previous employer).

In the next important step in the evolution of the tort, the court held, in Palmateer v. International Harvester Co. (1981), 85 Ill.

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493 N.E.2d 616, 143 Ill. App. 3d 1, 97 Ill. Dec. 809, 1 I.E.R. Cas. (BNA) 1460, 1986 Ill. App. LEXIS 2159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrik-v-monarch-printing-corp-illappct-1986.