Cummings v. Iron Hustler Corp.

• Decision Date: 19 September 1983
• Docket Number: No. 3-83-0052,3-83-0052
• Citation: 118 Ill.App.3d 327,454 N.E.2d 1078,73 Ill.Dec. 829
• Parties: , 73 Ill.Dec. 829 Roger CUMMINGS, Plaintiff-Appellant, v. IRON HUSTLER CORPORATION, Hustler Conveyor Corp., American Pulverizer Company, Harold Mandel, Gene Olszewski, Joseph Moore, Harry Mosher, and Mr. Schneblin, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1078

454 N.E.2d 1078

118 Ill.App.3d 327, 73 Ill.Dec. 829

Roger CUMMINGS, Plaintiff-Appellant, v. IRON HUSTLER CORPORATION, Hustler Conveyor Corp., American Pulverizer Company, Harold Mandel, Gene Olszewski Joseph Moore, Harry Mosher, and Mr Schneblin, Defendants-Appellees.

No. 3-83-0052.

Appellate Court of Illinois, Third District.

Sept. 19, 1983.

James M. Janovetz, Harvey & Stuckel, Chartered, Peoria, for plaintiff-appellant.

J. Reed Roesler, Kavanagh, Scully, Sudow, White & Frederick, P.C., Peoria, for defendants-appellees.

BARRY, Justice.

Plaintiff, Roger Cummings, appeals from the dismissal of a four-count complaint filed in the circuit court of Peoria County against his former employer, Iron Hustler Corp., the successor corporation American Pulverizer Co., American Pulverizer's wholly-owned subsidiary Hustler Conveyor Corp., and certain individual defendants who had allegedly participated to various degrees in the plaintiff's discharge at a time when the plaintiff was on disability leave. In Count I plaintiff charged the tort of retaliatory discharge; in Count II he alleged breach of an employment contract; in Count III plaintiff alleged negligence and discrimination on the part of the successor corporations for failure to hire him; and in Count IV plaintiff charged various supervisory personnel and Iron Hustler's corporate president with negligence.

The plaintiff, in addition to his court action for money damages and injunctive relief, had previously instituted a "Complaint of Civil Rights Violation" with the Illinois Department of Human Rights. (Ill.Rev.Stat.1979, ch. 68, par. 2-102(A).) The civil rights action was still pending before the Illinois Human Rights Commission, and, to the best of our knowledge, has not been finally resolved as of this writing. Essentially, that complaint charges discrimination against a handicapped person.

All of the defendants joined in a motion to dismiss plaintiff's lawsuit on two bases: Section 48(1)(c) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 48(1)(c), [repealed, currently Ill.Rev.Stat.1981, ch. 110, par. 2-619(a)(3)]); and that plaintiff's cause, if any, was subsumed by his union's collective bargaining agreement with the employer corporation. It is from the trial court's granting of defendants' motion on Section 48 grounds that plaintiff now appeals.

The issue before us as framed by the plaintiff-appellant is whether the complaints advanced on plaintiff's behalf with the Department of Human Rights and in the circuit court are "between the same parties" and "for the same cause," as those phrases are used in Section 48(1)(c) of the Civil Practice Act. The defendants, in addition to arguing in favor of an affirmance on this basis, vigorously argue that the trial court's order should be affirmed on the alternative basis that the plaintiff was covered by a collective bargaining agreement which, they contend, subsumed all other potential causes of action arising out of the termination of the plaintiff's employment. In effect, the defendants are urging us to reaffirm the principles set forth by the majority opinion in Cook v. Caterpillar (3d Dist.1980), 85 Ill.App.3d 402, 40 Ill.Dec. 864, 407 N.E.2d 95, and extend the philosophy there expressed in favor of promoting industrial peace. Defendants would have this court, in addition to approving the trial court's dismissal of this lawsuit, declare that the plaintiff's pending complaint before the Human Rights Commission must fail as well by force of the exclusivity of the collective bargaining contract between the employer and the plaintiff's union and the grievance-arbitration remedies provided therein. In so arguing, the defendants acknowledge that the United States Supreme Court's decision in Alexander v. Gardner-Denver Company (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, on analogous facts, runs counter to their position. We decline defendants' invitation to indulge in mental exercises to distinguish Alexander and find no need to use the instant case as a vehicle for refueling the dispute that already rages over the wisdom of this court's opinion in Cook v. Caterpillar. (Compare Suddreth v. Caterpillar Tractor Co. (2d Dist.1983), 114 Ill.App.3d 396, 70 Ill.Dec. 329, 449 N.E.2d 203, Lamb v. Briggs Mfg., a Div. of Celotex Corp. (7th Cir.1983), 700 F.2d 1092, and Deatrick v. Funk Seeds Intern. (4th Dist.1982), 109 Ill.App.3d 998, 65 Ill.Dec. 534, 441 N.E.2d 669, to Wyatt v. Jewel Companies, Inc. (1st Dist.1982), 108 Ill.App.3d 840, 64 Ill.Dec. 388, 439 N.E.2d 1053, and Petrik v. Monarch Printing Corp. (1st Dist.1982), 111 Ill.App.3d 502, 67 Ill.Dec. 352, 444 N.E.2d 588.) Rather, we agree with the trial court that the instant lawsuit was subject to dismissal under Section 48(1)(c) for the reason that the plaintiff's lawsuit represents the same cause between the same parties as that previously filed and pending before the Illinois Human Rights Commission.

Plaintiff resists this conclusion primarily by attempting to distinguish various opinions in which dismissals under Section 48(1)(c) have been upheld or ordered by courts of review. (E.g., Skolnick v. Martin (1964), 32 Ill.2d 55, 203 N.E.2d 428; People ex rel. Lehman v. Lehman (1966), 34 Ill.2d 286, 215 N.E.2d 806, and People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill.2d 249, 2 Ill.Dec. 367, 357 N.E.2d 534.) Plaintiff urges that our supreme court's pronouncement in A.E. Staley Mfg. Co. v. Swift & Co. (1980), 84 Ill.2d 245, 50 Ill.Dec. 156, 419 N.E.2d 23, would support a reversal of the trial court here. Plaintiff's argument fails to persuade however, because, unlike Staley, the issue before us is not whether the circuit judge failed to exercise his discretion in granting the defendant's motion to dismiss, but rather whether the trial court abused its discretion in so ruling. A discussion of Staley is, nonetheless, warranted because of the insight it provides on appropriate factors to be considered in exercising discretion on Section 48(1)(c) motions.

In Staley, the plaintiff corporation sued Swift, the defendant corporation, for damages allegedly sustained upon Swift's failure to complete construction of a soy bean processing plant located in Iowa. This suit was commenced in the circuit court of Macon County, Illinois, at a time when another action, instituted by Swift and seeking recovery of money retained by Staley to secure construction of the plant, was pending in the district court in Iowa. Swift, after losing on its initial motion to dismiss for forum non conveniens, filed a second motion to dismiss under Section 48(1)(c) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 48(1)(c)). The Illinois trial court granted the latter motion upon determining that the Iowa suit had preceded the filing of Staley's Illinois suit by 41 to 71 minutes.

On appeal, the appellate court determined that the trial court had erred in its determination that the time factor compelled dismissal of the later-filed suit. The appellate court remanded the cause directing the trial court to exercise its discretion in ruling on the motion. The Illinois Supreme Court, however, chose to grant appeal and to exercise its supervisory authority to rule on the merits of the Section 48(1)(c) motion. The high court analyzed the legislative intent implicit in Section 48(1)(c) of avoiding duplicative litigation as applied to the procedural aspects of the Illinois/Iowa suits under consideration. The majority opinion distinguished those cases in which Section 48(1)(c) motions had been granted when intrastate conflicts might have developed, thereby "diminish[ing] respect for and public confidence in our judiciary." Staley, 84 Ill.2d at 256, 50 Ill.Dec. at 161, 419 N.E.2d at 28, (quoting Gitchoff, 65 Ill.2d at 257, 2 Ill.Dec. at 371, 357 N.E.2d at 538).) Finally, the court determined that the purposes of Section 48(1)(c) would not be served or promoted by either dismissing or staying Staley's Illinois suit and forcing a counterclaim merely because the action instituted by Swift was pending in a sister state. Accordingly, the supreme court remanded Staley's suit to the trial court with directions to proceed with the litigation.

Subsequently, the Illinois Supreme Court granted leave to appeal in People ex rel. Dept. of Public Aid v. Santos (1982), 92 Ill.2d 120, 65 Ill.Dec. 21, 440 N.E.2d 876, a case coming before the court in a procedural context similar to that of Staley, and held that dismissal under Section 48(1)(c) was not appropriate, but a stay was. In Santos, a class action was filed in the United States District Court for the Northern District of Illinois by public aid recipients challenging on federal grounds the practice of the Department of Public Aid of obtaining and enforcing promissory notes to recover overpayments of AFDC benefits. The class action was filed on September 11, 1979. Named as defendants in the federal suit were the director of the Department and the supervisor of the Department's Collection Division. On October 24, 1979, the Illinois Attorney General, on behalf of the Department of Public Aid, filed three complaints in the circuit court of Cook County to collect on three such promissory notes executed by public aid recipients. As in Staley, the trial court determined that it had no discretion under Section 48(1)(c), and dismissed the later-filed State suit.

The Illinois Supreme Court...