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SECOND DIVISION
August 12, 2003

No. 1-01-3320

The record reveals that on June 11, 1999, Burns was terminatedfrom her employment by PRN, allegedly for "excessive cancellationsof assigned shifts." Ten days later, she filed a claim with theDepartment, seeking payment of unemployment benefits. PRN appearedin that proceeding through its agent Unemployment Consultants, Inc.(Unemployment Consultants), which is located in Arlington Heights,Illinois. Unemployment Consultants was authorized as PRN'sdesignated agent with regard to Burns' claim in the Department andaccordingly received notices in the administrative proceeding onbehalf of PRN. Unemployment Consultants' address was the onlyaddress of record for PRN in the administrative proceeding.⁽²⁾ Onlyone page in the administrative record reflects any other addressfor PRN, and that page is the termination letter issued to Burns. The top of the letterhead says "PRN Healthcare Services Inc." Theletter is signed by a "Vice President," and the bottom of lettershows a number and street address in Oak Brook, Illinois, and telephone and facsimile numbers. The letter does not identify theaddress as PRN's only place of business or its principal place ofbusiness. Apparently the last location at which Burns worked forPRN was Hinsdale Hospital in Hinsdale, Illinois.

The Board of Review of the Department (Board) mailed its finaldecision (Decision) affirming the referee's denial of Burns'request for unemployment benefits on November 3, 1999. It was sentto Burns and to PRN, care of Unemployment Consultants. A documentthat generally described the procedures and time limitations forjudicial review of the Decision accompanied the copy of theDecision mailed to Burns. The only address listed for PRN on theDecision was the address of Unemployment Consultants.

On December 7, 1999, Burns appeared at the office of thecircuit clerk of Cook County seeking to appeal the Decision. WhenBurns approached the clerk with her copy of the Decision, the clerkdirected her to the pro se desk for assistance in preparing thenecessary papers for filing. At the pro se desk, an attendant tookthe copy of the Decision and, based on the information containedtherein, drafted a complaint for review and a summons. Theattendant addressed the summons to the Board, the Director of theDepartment (Director), and PRN, care of Unemployment Consultants atthe Arlington Heights address listed for PRN on the Decision. Burns then took the complaint and summons to the clerk, who filedthe complaint and issued the summons to the Board, the Director,and PRN.

Unemployment Consultants forwarded the summons and complaintto PRN, which filed its "Special and Limited Appearance ofDefendant PRN Healthcare Services, Inc. for Purposes of Objectingto the Court's Jurisdiction over the Person of PRN" (Objection) onJanuary 19, 2000. PRN attached the affidavit of Joanne M.Phillips, its president and sole shareholder, to the Objection. The affidavit identified PRN's place of business only as Oak Brook,Illinois, and did not provide a street address or post office boxto which mail could be delivered. PRN argued that the court lackedjurisdiction because Burns failed to serve it at its principalplace of business as required under the Review Law. Burns concededthat she did not serve PRN at its principal place of business, butinstead served it at the address of Unemployment Consultants, itsdesignated agent in the administrative proceedings. She claimedthat she acted properly and in good faith in serving PRN throughUnemployment Consultants, that any error in service wasinconsequential, and that the legislature intended for appeals ofadministrative decisions to be heard on their merits. Thus, sheclaimed, the court should excuse any noncompliance with the ReviewLaw.

During its consideration of PRN's Objection, the court orderedthe parties to submit briefs on the relation of the pro se desk tothe clerk of the court. Burns argued that the pro se deskperformed "an administrative function indistinguishable from theClerk of Courts" and, consequently, that an error committed by thepro se desk attendant should be treated the same as an error by theclerk of court when considering whether the failure to serve PRN atits principal place of business should be excused under the good-faith exception. PRN countered that the pro se desk differssignificantly from the clerk of the court because its services aresought voluntarily and that the good-faith exception applies onlyin cases where errors are made by the clerk of the court. Thecourt subsequently dismissed Burns' complaint, finding that Burnshad failed to comply with the strict service requirements of theReview Law and had failed to show the that she acted good faith toexcuse her noncompliance. Its finding with regard to good faithwas based on its acceptance of PRN's argument that the good-faithexception was inapplicable where the error in service was made bythe pro se desk.

The primary issues raised on appeal are (1) whether Burnsproperly served PRN under the Review Law, in which case dismissalwas improper, and (2) whether, if service was not proper, the good-faith exception applies to excuse Burns' noncompliance. Theparties raise other minor and related issues, which we will addressto the extent they are necessary to the disposition of this appeal.

We discuss one of these additional issues first. Burns arguesthat PRN has waived its right to object to the service of summonsby filing a motion to reconsider in the trial court. Essentially,Burns claims that filing the motion to reconsider constituted ageneral appearance on the part of PRN and gave the circuit courtjurisdiction over PRN in the review proceeding. We do not find themotion to reconsider constituted a general appearance. Nor do weconclude that PRN waived its right to contest service by filing themotion.

Significantly, the first pleading PRN filed in this case wasits Objection, in which it claimed that the trial court lackedjurisdiction over PRN because Burns failed to serve PRN at itsprincipal place of business as required under the Review Law. Thecircuit court did not immediately rule on PRN's Objection. Instead, it gave both sides time to respond in writing. The courtthen heard oral argument on the Objection. The court, however,determined that it needed additional information, including whetherPRN had party status in the administrative proceeding, before itcould rule on PRN's Objection. Thus, it remanded the matter to theDepartment for additional review. After a supplemental hearing,the Board found that PRN had party status.

Subsequently, Burns petitioned the trial court for a secondremand, claiming that the first hearing was inadequate because thereferee did not have the original administrative file at the timeof the hearing. The court granted Burns' motion for remand. PRNthen filed its motion to reconsider, by which motion, Burnscontends, PRN waived its right to object to improper service ofsummons. We disagree.

PRN did not waive its right to object because it had alreadyexercised that right, and it was in the course of exercising thatright that PRN filed its motion to reconsider. The motion wasfiled in the sequence of the circuit court's extended considerationof PRN's Objection. Thus, we hold that PRN did not waive its rightto contest service by filing its motion to reconsider. Regardless,"even in the absence of a timely objection, the requirements of theAdministrative Review Law are not waivable." Gilty v. Village ofOak Park Board of Fire & Police Commissioners, 218 Ill. App. 3d1078, 1086 (1991); see also Brazas v. Property Tax Appeal Board,309 Ill. App. 3d 520 (1999).

We turn now to PRN's objection to jurisdiction, which wasbrought under section 2-301 of the Code of Civil Procedure (735ILCS 5/2-301 (West 2000)). Such objections raise questions of law,which we consider de novo. Cameron v. Owens-Corning FiberglasCorp., 296 Ill. App. 3d 978, 983 (1998). In cases such as this,where no disputed facts are at issue, our review is the same as fora section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2000));thus, we may consideraffidavits and counter affidavits on file. Cameron, 296 Ill. App. 3d at 984. Under this standard, we firstconsider whether Burns' service upon PRN was proper under theReview Law.

Requests for judicial review of denials of benefits by theDepartment are governed by the Review Law. 820 ILCS 405/1100 (West2000). The Review Law grants special statutory jurisdiction tocircuit courts to review decisions of administrative agencies whensuch decisions are properly appealed to them. ESG Watts, Inc. v.Pollution Control Board, 191 Ill. 2d 26, 30 (2000). The Review Law"delimits the court's power to hear the case." ESG Watts, 191 Ill.2d at 30. And "[a] party seeking to invoke special statutoryjurisdiction thus 'must strictly adhere to the prescribedprocedures' in the statute. [Citation.]" ESG Watts, 191 Ill. 2d at30. Specifically, in order to obtain judicial review, a party mustfile its complaint for review and issue summons "within 35 daysfrom the date that a copy of the decision sought to be reviewed wasserved upon the party affected by the decision." 735 ILCS 5/3-103(West 2000).

The purpose of the 35-day period is to " ' "hasten theprocedure" of administrative review and avoid undue delay.' "Carver v. Nall, 186 Ill. 2d 554, 559 (1999), quoting Lockett v.Chicago Police Board, 133 Ill. 2d 349, 355 (1990). Unlike someother requirements under the Review Law, the 35-day period forissuance of summons is mandatory, not jurisdictional. Thus,failure to comply with the provision does not automatically deprivethe court of jurisdiction. Noncompliance, however, may result indismissal of the complaint for review, unless a good-faith effortto comply with the requirement is made. Carver, 186 Ill. 2d at559.

Specifically, with regard to service on nonagency defendants,the Review Law provides:

"The clerk of the court shall also mail a copy of thesummons to each of the other defendants, addressed to thelast known place of residence or principal place ofbusiness of each such defendant. The plaintiff shall, byaffidavit filed with the complaint, designate the lastknown address of each defendant upon whom service shallbe made." 735 ILCS 5/3-105 (West 2000).

PRN contends that service upon Unemployment Consultants wasimproper because it was not service upon PRN's "last known place ofresidence or principal place of business." PRN does not contendthat the summons was not timely served. Nor does it claim thatBurns failed to name any necessary party. Instead, it challengesonly the address of service. PRN argues that service upon PRN'slast known address, even if that was Unemployment Consultants'address, is not proper under the Review Law. PRN relies uponsection 804 of the Unemployment Insurance Act (820 ILCS 405/804(West 2000)), which authorizes notice to a party's last knownaddress in proceedings before the Department (820 ILCS 405/804(West 2000)), and claims that the legislature's use of "last knownaddress" in that context and "last known place of residence orprincipal place of business" under the Review Law indicates a clearintent to impose stricter service requirements for judicial review. However, our analysis of the Review Law fails to support thisdistinction.

We agree with PRN that it is a general rule of statutoryinterpretation that "[w]hen the legislature uses certain words inone instance and different words in another, different results wereintended," and the terms "cannot be interpreted as equivalents." Costello v. Governing Board of Lee County Special Education Ass'n,252 Ill. App. 3d 547, 558 (1993). More importantly, however, weshould, where possible, avoid construction of a statute that wouldrender any part of it meaningless, void, absurd, or self-contradictory. Costello, 252 Ill. App. 3d at 559, 561. Additionally, we should " 'liberally construe a right to appeal soas to permit a case to be considered on its merits.' [Citations.]"Cox v. Board of Fire & Police Commissioners, 96 Ill. 2d 399, 403(1983). And we "should not find hypertechnical excuses to avoiddeciding the merits of disputes, when no delay or harm was causedby the technical violation to any party." Worthen v. Village ofRoxana, 253 Ill. App. 3d 378, 382 (1993).

As noted above, the Review Law requires an affidavit by theplaintiff designating the "last known address" of each defendant. Our supreme court has recognized that this affidavit is the meansby which the clerk becomes aware of the defendant's address. Carver, 186 Ill. 2d at 558. It would be illogical to require theplaintiff to provide an address to the clerk that was improper toeffect service. For that reason, we interpret the Review Law topermit service at the defendant's last known place of residence,principal place of business, or last known address as indicated inan affidavit from the plaintiff.

In this case, the record on appeal does not contain any suchaffidavit from the plaintiff, and we do not know whether any wasever filed because the parties have not addressed this issue. Consequently, we cannot find that service was proper under thestrict mandates of the statute. We, therefore, turn to applicationof the good-faith exception.

As noted earlier our courts recognize a limited exception tothe rule of strict compliance where the plaintiff makes a good-faith effort to comply with the Review Law. In Cox, 96 Ill. 2d at404, for example, the Illinois Supreme Court reversed a dismissalwhere a summons was presented to the clerk on day 35, but was notissued until day 36 because it found that "the plaintiff acted withdiligence in presenting to the clerk summonses which required onlysignatures and seals prior to service." See also, Piasa MotorFuels, Inc. v. Department of Revenue, 138 Ill. App. 3d 422, 427(1985) (applying the good-faith exception where the "the delay inissuing summons was not [the plaintiff's] fault," but was due to amisplacement of the file in the clerk's office).

In City National Bank & Trust Co. v. Illinois Property TaxAppeal Board, 108 Ill. App. 3d 979 (1982), aff'd, 97 Ill. 2d 378(1983), the appellate court explained the reason for the exception:

"We thus conclude that it is the legislature'sintention that if the complaint is filed within the 35-day period, and the plaintiff in good faith attemptsto have the clerk issue summons within the same period,he is not deprived of his right to appeal onjurisdictional grounds." City National Bank, 108 Ill.App. 3d at 983.

In that case, the plaintiff did not prepare a summons but was toldby the clerk that she would do so. The clerk did in fact issue thesummons, but not within the 35-day period, as instructed byplaintiff and agreed to by the clerk. Thus, the court relaxed the35-day period, finding that "the plaintiff-owner, in good faith,sought issuance of summons in accordance with the mandatoryprovisions of the statute and advised the clerk of the timelimitation." City National Bank, 108 Ill. App. 3d at 983.

In Azim v. Department of Central Management Services, 164 Ill.App. 3d 298, 299 (1987), the attorney for the plaintiff mailed thecomplaint to the clerk's office and to the defendants within 35days of the mailing of the agency's decision, but the attorneyfailed to include the filing fee with the copy mailed to the clerk. A representative of the clerk's office called the attorney toadvise him of the error. Azim, 164 Ill. App. 3d at 300. Theattorney and clerk's representative agreed that the attorney wouldput the filing fee in the mail that day, and the complaint would befile stamped that day. Azim, 164 Ill. App. 3d at 300. Thecomplaint was not file stamped that day, and the attorney's checkfor the filing fee was returned to him upon receipt by the clerk. Azim, 164 Ill. App. 3d at 300. The attorney then spoke with asupervisor at the clerk's office and was informed that his previousdiscussion and agreement with the clerk had been unauthorized andhad not been honored. Azim, 164 Ill. App. 3d at 300. He mailedthe filing fee again, and again it was returned to him. Azim, 164Ill. App. 3d at 300. Finally, the attorney mailed the filing feeand a new copy of the complaint. Azim, 164 Ill. App. 3d at 300. This time the complaint was file stamped, 53 days after theadministrative decision was mailed. Azim, 164 Ill. App. 3d at 300-01. The defendants were served with a file stamped copy of thecomplaint 74 days after the administrative decision was mailed. Azim, 164 Ill. App. 3d at 301. Over the defendants' objection, thecourt found that "the action was timely commenced and that theplaintiffs acted with diligence in securing issuance of summonseswithin the 35-day period provided for by the Administrative ReviewLaw." Azim, 164 Ill. App. 3d at 303. Twice during its opinion,the court noted that the defendants actually and timely receivedcopies of the complaint and that the defendants suffered noprejudice by the delay in file-stamping or receipt of formalsummons. Azim, 164 Ill. App. 3d at 303.

In Worthen, the court applied the good-faith exception in theappeal of a decision by the Pollution Control Board (PCB). Worthen, 253 Ill. App. 3d at 379. The provision of the IllinoisEnvironmental Protection Act (415 ILCS 5/41(a)(West 1992)) underwhich judicial review by the appellate court was sought was similarto the Review Law in that it required that the petition for reviewbe filed within 35 days of the entry of the order being appealedand that the petition for review include as parties all parties ofrecord in the administrative proceeding. Worthen, 253 Ill. App. 3dat 380-81. The petitioner failed to name the PCB as a party in thecaption of its petition for review, but did serve the PCB with acopy of the petition when it served the other named defendants. Worthen, 253 Ill. App. 3d at 380. The PCB claimed that the courtlacked jurisdiction to hear the petition for review. The appellatecourt disagreed, holding that the good-faith exception applied. Worthen, 253 Ill. App. 3d at 382. It described the petitioner'serror as a "clerical error" and held, in part, that because the PCBwas timely served with a copy of the petition for review, the courthad jurisdiction over the petition for review. The court wrote:

"Courts, as a general rule, should not findhypertechnical excuses to avoid deciding the merits ofdisputes, when no delay or harm was caused by thetechnical violation to any party." Worthen, 253 Ill.App. 3d at 382.

PRN and the Department cite several cases where courts haverefused to apply the good-faith exception. However, those casesare distinguishable from this case. Lockett v. Chicago PoliceBoard, 133 Ill. 2d 349, 356 (1990), for example, involved thefailure to name and serve a party. In Carver:

"[The plaintiff] did nothing but assume that theclerk's office would issue summons. She did not ask theclerk to issue summons, or even provide the clerk withthe addresses of Commission members. Regarding theissuance of summons, she made no efforts whatsoever, muchless those that could be considered diligent or made ingood faith." Carver, 186 Ill. 2d at 560-61.

Similarly, in Brazas, the plaintiff took no affirmative step tohave summons issued by the clerk. Brazas, 309 Ill. App. 3d at 531. Finally, in Hanke v. Department of Professional Regulation, 296Ill. App. 3d 825, 829 (1998), the plaintiff made no effort to issuesummons and "offered no explanation for the failure to issuesummons."

Unlike those cases, the summons issued in this case was issuedwithin the 35-day statutory period, and there is ample evidencethat Burns made a timely, good-faith effort to comply with theReview Law in seeking judicial review. She did not simply rely onthe clerk of the court or even on the pro se desk to accomplishwhat was needed. Instead, she appeared at the clerk's office,where she followed the clerk's advice and proceeded to the pro sedesk for assistance in completing paperwork. There she presentedthe attendant with the last known address for PRN with regard toher claim for unemployment benefits. There is no evidence that sheprovided the address in bad faith; it was the address of PRN'sdesignated agent before the Department. Likewise, the Decisionitself listed this address for PRN. Further, unlike the casescited by PRN, the summons in this case was served and resulted inPRN receiving actual, timely notice of the complaint foradministrative review.

Regardless, PRN contends that we do not have authority toapply the good-faith exception in this case because our supremecourt has limited it to instances where the clerk of the court madean error. The trial court agreed with PRN that good faith requiresan error by the clerk of the court. Thus, the parties and thecircuit court gave substantial attention to the pro se help deskand whether Burns' reliance on the pro se help desk attendant'sassistance constituted good faith. Particularly, they focused onwhether the pro se help desk is equivalent to the clerk of thecourt. On appeal, PRN claims that the good-faith exception doesnot apply to mistakes made by the pro so attendant because thoseservices, unlike the services of the clerk of the court, are soughtout and obtained voluntarily. Thus, it contends that the servicesof the pro se attendant were within Burns' control, and any errormade by the pro se attendant is attributable to her and does notconstitute good faith. It argues that Burns should have madeefforts to identify the proper address for service rather thansimply assuming that the address listed on the Decision was aproper address for service.

We do not conclude that good faith is contingent upon afinding of error by the clerk of the court. The supreme court hasnot limited application of the exception solely to those cases inwhich an error was made by the clerk of the court. See, e.g.,Carver, 186 Ill. 2d at 559, quoting Lockett, 133 Ill. 2d at 355 ("'In cases where the 35-day requirement has been relaxed, theplaintiffs had made a good-faith effort to issue summons within thestatutory period. Nevertheless, due to some circumstance beyondtheir control, summons was not issued within the statutory period'"). Significantly, unlike the cases cited by the parties, this casedoes not involve a failure to timely issue summons or namenecessary parties. It involves a claim that service, actuallyreceived by the proper party, was made at the wrong address. Thus,the question before us is one of first impression in this court,and our decision to apply the good-faith exception in this casedoes not overrule or modify the supreme court's decisions regardingthe good-faith exception. Nor is it contrary to those decisions. Importantly, in the cases where errors were committed by theclerk of the court and the courts applied the exception, theclerk's errors were not the only significant factors considered bythe courts. And, as recognized above, mere reliance on the clerkis insufficient to constitute good faith. See, Brazas, 309 Ill.App. 3d 520; Carver, 186 Ill. 2d 554. Instead, there must also beevidence that the plaintiff made an effort to have the summonsissued. See e.g., Cox, 96 Ill. 2d 399 (good-faith exceptionapplied where plaintiff acted with diligence and presentedsummonses to the clerk, which required only signatures and sealsprior to service); City National Bank, 108 Ill. App. 3d 979 (good-faith exception applied where plaintiff instructed the clerkregarding the issuance and timing of the service of summons); Azim, 164 Ill. App. 3d 298 (good-faith exception applied whereplaintiff sent complaint to clerk, communicated with clerkregarding filing of complaint and issuance of summons, and sentcopies of complaint to defendants). Thus, the primary basis forfinding good faith excusing noncompliance appears to be both aneffort by the plaintiff to effect service and a failure to strictlycomply with the service requirements because of some factor beyondthe plaintiff's control.

In this case, the Decision was mailed to UnemploymentConsultants as PRN's designated agent. The regulations of theDepartment provide:

"A person may designate an agent to receive his noticesand decisions by filing the name and address of the agentwith the Agency. In such cases, notice to the agent sodesignated is notice to the person. A person'sdesignation of the agent shall remain in effect until theAgency receives a notice that the agency relationship nolonger exists." 56 Ill. Adm. Code