Rinchich v. Village of Bridgeview, 1-90-2378

• Decision Date: 22 September 1992
• Docket Number: No. 1-90-2378,1-90-2378
• Parties: , 176 Ill.Dec. 504 John RINCHICH, Plaintiff-Appellant, v. VILLAGE OF BRIDGEVIEW, an Illinois Municipal Corporation, and John A. Oremus, Jack Curry, Chester G. Haraf, Ray Lederman, Michael J. Pticek, Beth Ann Lema, Robert M. Cusak, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1202

601 N.E.2d 1202

235 Ill.App.3d 614, 176 Ill.Dec. 504

John RINCHICH, Plaintiff-Appellant, v. VILLAGE OF BRIDGEVIEW, an Illinois Municipal Corporation and John A. Oremus, Jack Curry, Chester G. Haraf Ray Lederman, Michael J. Pticek, Beth Ann Lema, Robert M. Cusak Defendants-Appellees.

No. 1-90-2378.

Appellate Court of Illinois,

First District, Second Division.

Sept. 22, 1992.

Richard H. Kane & Associates Ltd., of Naperville (Richard H. Kane, of counsel), for plaintiff-appellant.

Ancel, Glink, Diamond & Cope, P.C., Chicago (Steven E. Glink, Marvin J. Glink, of counsel), for defendants-appellees.

Justice SCARIANO delivered the opinion of the court:

On September 7, 1989, plaintiff John Rinchich filed suit against the Village of Bridgeview (the Village), its president and chief executive officer and its Board of Trustees (collectively, defendants). In his amended complaint Rinchich alleged the following facts to be common to all counts: (1) that "[o]n March 28, 1979, [he] was appointed by the Board of Fire and Police Commissioners to the position of Fire Prevention Education and Training Officer[ ]"; (2) that on May 8, 1989, the Village and its Board of Trustees enacted Ordinance No. 89-9 which set the salary for officials and employees of the Village and that on July 24, 1989, the Village enacted Ordinance No. 89-27, which "eliminated the salary of Ordinance Officer which under the annual salary ordinance was $7,597.28" and "[e]liminated the salary of Fire Prevention and Education Training Officer which under the annual salary ordinance (Ordinance No. 89-9) was $27,761.05"; and (3) that defendants' actions "in abolishing [his] position as Fire Prevention Training and Education Officer" violated division 2.1 of article 10 of the Municipal Code (Ill.Rev.Stat.1977, ch. 24, par. 10-2.1-4) which vests the Board of Police and Fire Commissioners with the authority to regulate the employment of firefighters, and contravened section 3-13-1 of the Municipal Code (Ill.Rev.Stat.1979, ch. 24, par. 3-13-1), which provides that the salaries of municipal officers may not be diminished so as to take effect during the term of their appointment.

Count I of his complaint sought judgment declaring (1) that Ordinance No. 89-27 is void; (2) that any salary decreases and eliminations pursuant to that ordinance are unlawful; (3) that his position as Fire Prevention and Training Officer was illegally abolished; and (4) that he was entitled to be reinstated immediately as Fire Prevention and Training Officer.

Count II of his complaint sought to enjoin defendants from taking action under Ordinance No. 89-27 on the ground that it deprived him of his position as Fire Prevention Training and Education Officer without due process of law.

In count III, Rinchich alleged (1) that he began working as a volunteer firefighter in March of 1963, and subsequently attained the rank of captain in the volunteer fire department; (2) that in 1971, the Village, by virtue of its having exceeded 5,000 population, became subject to the provisions of the Illinois Municipal Code and that pursuant thereto he became a full time firefighter with the Village, with the rank of lieutenant, and that he was compensated as a lieutenant; (3) that although he resigned in 1973, he was reappointed as a lieutenant when he returned in August of 1977; (4) that from August 1, 1977, to March of 1979, he served as a lieutenant; (5) that he was appointed by the Board of Police and Fire Commissioners to the position of Fire Prevention Training and Education Officer in March of 1979, and served in both that position and as lieutenant in the Village's Fire Department until August of 1989; (6) that he "was compensated from March 1979, to April, 1977, as a Lieutenant * * * and thereafter as a Fire Prevention Training and Education Officer"; (7) that in October of 1983 Chief Billig advised defendant Oremus of his qualifications "as both a Training and Education Officer and Lieutenant"; (8) that in April of 1977 the Village advised him he would no longer be permitted to attend collective bargaining sessions because it was their opinion that he was "not a valid officer of the Village," and that he was subsequently denied further compensation as a lieutenant; (9) that the Village enacted Ordinance No. 89-27 which eliminated his salary and position as Fire Prevention Training and Education Officer, and that the Village advised him to report as a firefighter rather than lieutenant; (10) that he had never received any complaints relative to his service and had never been charged by the Board of Fire and Police Commissioners with any wrongful acts; (11) that he had been denied the opportunity to participate in collective bargaining negotiations with the Village and deprived of the salary of a lieutenant by the actions of the Village notwithstanding the fact that he had served as a lieutenant and as Fire Prevention Training and Education Officer; and he concluded with the charge that (12) defendants' actions were motivated in part by their desire to punish him for his political activities.

Therefore, count III sought judgment declaring (1) that he was entitled to hold the rank of lieutenant; (2) that he was entitled to the compensation due a lieutenant; (3) that his position as Fire Prevention Training and Education Officer was illegally abolished; and (4) that he "should be immediately reinstated to Lieutenant and Fire Prevention Training and Education Officer[.]"

On March 16, 1990, defendants filed a motion for summary judgment in which they argued that (1) because upon his return in 1977 Rinchich did not meet the statutory requirements for becoming a firefighter he was hired as a civilian employee, and that inasmuch as he was not a firefighter he could not be a lieutenant; (2) that the position of Fire Prevention Training and Education Officer was created by the Village, which retained the power to abolish it; (3) that Rinchich provided no evidence that he was duly appointed to the rank of lieutenant; and (4) that they did not violate Rinchich's civil rights because he had no constitutionally protected right to retain the position of Fire Prevention Training and Education Officer. They point out that Rinchich has alleged a due process violation only in regard to the position of Fire Prevention Training and Education Officer. Finally, defendants argued that the Village had no duty to engage in collective bargaining with Rinchich.

At the May 21, 1990 summary judgment hearing, the circuit court struck certain affidavits submitted by Rinchich in opposition to defendants' motion; allowed him, pursuant to his request, time to file amended affidavits; and continued the matter until July 16, 1990. However, he filed no additional affidavits. At the July 16, 1990 summary judgment hearing, the court granted the defendants' motion for summary judgment and made its order final. Specifically, the court found that Rinchich's statement of facts was not supported by the record; that he was not a municipal officer; that he was not entitled to the rank of lieutenant because he did not fulfill the legal requirements of the position; that he was not eligible to be appointed as a firefighter in 1977; and that he failed to raise any genuine issue of material fact pertaining to the allegations that defendants' actions were politically motivated. Rinchich appeals.

I.

Rinchich's first contention is that the trial court erred in granting defendants' motion to strike certain affidavits submitted by him in response to defendants' motion for summary judgment.

Although the parties have not raised the issue, we have the duty to inquire into our jurisdiction and to dismiss an appeal if we determine that it is wanting. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290.) Supreme Court Rule 303(c)(2) (134 Ill.2d R. 303(c)(2)) provides that the notice of appeal shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court. (Ill.Rev.Stat.1989, ch. 110A, par 303(c)(2).) We note further that the notice of appeal is to be liberally construed. Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 432, 31 Ill.Dec. 178, 394 N.E.2d 380.

In this case, the notice of appeal states:

"Plaintiff-Appellant, John Rinchich * * * appeals * * * from an Order of the Circuit Court of Cook County, Illinois, County Department, Chancery Division, dated July 16, 1990, granting Summary Judgment to the Defendant [sic] and against Plaintiff as to Plaintiff's Complaint and Defendant's [sic] Counter-claim. * * * By this Appeal, Plaintiff-Appellant respectfully suggests that the Trial Court erred in granting Defendant's [sic] Motion for Summary Judgment as to Plaintiff-Appellant's Complaint and as to Defendant-Appellee's [sic] Counter-claim, and Plaintiff-Appellant will ask the Appellate Court to vacate the Trial Court's Order of July 16, 1990; to reverse the Trial Court's Order granting Summary Judgment to the Defendant [sic]; to remand this cause to the Circuit Court for further proceedings * * *."

However, as noted above, the order striking the affidavits was entered on May 21, 1990.

In Burtell, 76 Ill.2d at 434-35, 31 Ill.Dec. 178, 394 N.E.2d 380, the court stated:

"When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or fairly to be inferred from the notice as intended to be preserved for review on the appeal. If from the notice of appeal itself and the subsequent proceedings it appears that the appeal was intended, and the appellant and the appellee so understood, to have been taken from an unspecified judgment or part thereof, the notice of appeal may be construed as bringing up for review the unspecified part of the order or judgment. Such a construction would be...