Kepper v. La Salle-Peru Tp. High School Dist. No. 120

• Decision Date: 28 August 1972
• Docket Number: No. 71--163,SALLE-PERU,71--163
• Parties: Thomas KEPPER, Plaintiff-Appellant, v. LATOWNSHIP HIGH SCHOOL DISTRICT #120, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 180

287 N.E.2d 180

7 Ill.App.3d 138

Thomas KEPPER, Plaintiff-Appellant, v. LA SALLE-PERU TOWNSHIP HIGH SCHOOL DISTRICT #120, Defendant-Appellee.

No. 71--163.

Appellate Court of Illinois, Third District.

Aug. 28, 1972.

Louis Olivero, Peru, for plaintiff-appellant.

Donald Henson, Herbolsheimer & Lannon, La Salle, Berry & Oconor, Ottawa, for defendant-appellee.

STOUDER, Presiding Justice.

Plaintiff, Thomas Kepper, Appellant, commenced this action in the Circuit Court of LaSalle County seeking damages from Defendant, LaSalle-Peru Township High School District #120, Appellee, for alleged wrongful discharge of plaintiff as a custodian for the District. In response to plaintiff's second amended complaint, defendant moved for dismissal alleging defendant to be a public entity required to be given a preliminary notice of plaintiff's claim within six months of the occurrence of the incident in accord with Chap. 85, Sections 8--102 and 8--103, Ill.Rev.Stat.1969, claiming that failure of plaintiff to give such notice barred this action. After argument, the court, pursuant to the motion, dismissed the complaint and the plaintiff elected to stand thereon. This is an appeal from the judgment dismissing plaintiff's action.

According to the complaint, Kepper was employed by the District as a custodian, the terms of his employment being set forth in union agreement attached to the complaint as an exhibit. The complaint alleges Kepper was wrongfully discharged in September, 1970. This action was originally commenced in December, 1970 about three months after plaintiff's discharge. The last amended complaint was filed in July, 1971 but there is no question but that the amended complaints relate back to December so far as time of filing is concerned. The prayer for relief sought actual damages of $120,000, punitive damages of $50,000, and also requested a mandatory injunction requiring defendant to reinstate plaintiff at his former job. The complaint does not allege the giving of any prior notice to the District of plaintiff's claim and the parties concede that no notice was given to the District except that resulting from the filing of this action.

In seeking to reverse the judgment plaintiff argues that his cause of action is based on contract and the breach thereof. Consequently Chap. 85, Sections 8--102 and 8--103, Ill.Rev.Stat.1969, are inapplicable since they are limited to torts. If the action is based on contract, plaintiff asserts that the preliminary notice required by Section 8--102 and 8--103 is unnecessary as specified in another Section of the same Act, namely Chap. 85, Sec. 2--101, Ill.Rev.Stat.1969.

In support of the judgment defendant argues that plaintiff at no time during the proceedings prior to judgment advanced the theory that his claim was based on contract or that the notice requirements of Sections 8--102 and 8--103 being applicable only to tort actions were not required in contract actions. According to defendant, the only theory advanced by plaintiff in the trial court was that the filing of the complaint within six months of the date of the incident was in legal effect sufficient compliance with the requirement of Sec. 8--102. As is pointed out by defendant, Erford v. City of Peoria, 229 Ill. 546, 82 N.E. 374, holds that the preliminary notice is required even though the action is commenced within the time period for giving the preliminary notice. On this appeal, plaintff has abandoned this...