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                                               THIRD DIVISION

                                               JANUARY 16, 2002

No. 1-00-3635

JUSTICE CERDA delivered the opinion of the court:

In this administrative review action, plaintiff, DarrylVeazey, appeals the order of the circuit court affirming thedecision of defendant, the Board of Review (Board) of theIllinois Department of Employment Security (Department), findingplaintiff ineligible for unemployment insurance benefits. Onappeal, plaintiff argues a finding in his favor on the issue ofeligibility was mandated by the Administrative Review Act (Act),his due process rights were violated by the Board, and that theBoard's decision of ineligibility was factually erroneous. Weneed not consider these issues since plaintiff's complaint mustbe dismissed as a result of his failure to comply with the Act'sprocedural mandates.

Section 3-102 of the Act explicitly conditions review of anadministrative decision upon compliance within its provisions:

"Unless review is sought of anadministrative decision within the time andin the manner herein provided, the parties tothe proceeding before the administrativeagency shall be barred from obtainingjudicial review of such administrativedecision." 735 ILCS 5/3-102 (West 1998).

Indeed, the Act is a departure from the common law and, as such,its provisions must be strictly adhered to by the parties. ESGWatts, Inc. v. Pollution Control Board, 191 Ill. 2d 26, 30, 727N.E.2d 1022, 1025 (2000); Fredman Brothers Furniture Co. v.Department of Revenue, 109 Ill. 2d 202, 210-11, 486 N.E.2d 893(1985).

In addition to requiring a complaint for review to be filedwithin 35 days from the date a copy of the decision sought to bereviewed was served on the appealing party (735 ILCS 5/3-103(West 1998)), section 3-107(a) of the Act specifies that thecomplaint must name "the administrative agency and all persons,other than the plaintiff, who were parties of record to theproceedings before the administrative agency *** [as]defendants." (Emphasis added.) 735 ILCS 5/3-107(a) (West 1998). As stated by our supreme court, "[t]his requirement is mandatoryand specific, and admits of no modification." Lockett v. ChicagoPolice Board, 133 Ill. 2d 349, 354, 549 N.E.2d 1266, 1268 (1990). Service of summons is then required on all parties of recordwithin the same 35-day period in which the complaint for reviewis to be filed. 735 ILCS 5/3-103 (West 1998).

While plaintiff's original complaint for review named theDepartment, its director, the Board and the Board's individualmembers as defendants, it did not, as the Department notes,include plaintiff's adversary to his benefits claim, namely Tele-Communications, Inc. (Tele-Communications), which appearedthrough its duly authorized representative James E. Frick, Inc.(Frick). According to the Department, Tele-Communications was aparty of record to the administrative proceedings and, thus, wasrequired under section 3-107(a) to be named by plaintiff in hiscomplaint for review. Because plaintiff failed to join Tele-Communications, the Department asserts dismissal of plaintiff'scause is required.

Plaintiff asserts the Department has waived this issue forour consideration. Before addressing plaintiff's argument ofwaiver, a brief comment on the underlying proceedings isnecessary.

In response to plaintiff's complaint for review, theDepartment moved to dismiss on the ground that Tele-Communications had not been included as a party-defendant. Plaintiff countered by asserting that Tele-Communications had notbeen his employer but, rather, that he had been employed by anentity known as LaSalle Telecommunications, Inc. (LaSalle). Plaintiff further sought leave from the circuit court to amendhis complaint to add LaSalle as a defendant.

After lengthy consideration of the matter, the circuit courtremanded the case to the Board for a determination of what entityhad been plaintiff's employer. The Board subsequently concludedthat Tele-Communications, not LaSalle, had employed plaintiff. Plaintiff challenged this determination and the circuit courtreversed the Board's decision, finding the evidence establishedthat LaSalle had been plaintiff's true employer. The courtdenied the Department's request to dismiss and allowed plaintiffleave to file an amended complaint joining LaSalle. Followingthe filing of plaintiff's amended complaint, the court consideredthe merits of the cause and upheld the Board's ruling thatplaintiff was not eligible for unemployment insurance benefits.

Plaintiff maintains the Department is precluded from raisingthe issue of his compliance with the Act since it never cross-appealed the circuit court's order denying its motion to dismiss. We disagree. As stated by our supreme court, "findings of acircuit court adverse to the appellee do not require that theappellee cross-appeal if the judgment of the circuit court wasnot, at least in part, against him." Landmarks PreservationCouncil of Illinois v. City of Chicago, 125 Ill. 2d 164, 174, 531N.E.2d 9, 13 (1988). Here, while the Department was unsuccessfulin obtaining a dismissal of plaintiff's cause, judgment wasentered in its favor upon the merits of the complaint. Accordingly, the Department was not required to file a cross-appeal to preserve the issue of plaintiff's compliance with theAct for our consideration.

We agree with the Department's assertion that Tele-Communications was a party of record and, thus, was a necessaryparty to plaintiff's review action. Section 3-107(a)specifically requires that all parties of record, other than theplaintiff, be included as defendants in any complaint seekingadministrative review. The record shows that Frick, as the dulyauthorized agent of Tele-Communications, challenged plaintiff'sclaim for unemployment insurance benefits and that, upon aninitial determination establishing plaintiff's eligibility,instituted an appeal requesting that that determination beoverruled. Frick, on Tele-Communications' behalf, furtherappeared at all relevant hearings held to determine plaintiff'seligibility. See Board of Education of Bethany Community UnitSchool District No. 301 v. Regional Board of School Trustees, 255Ill. App. 3d 763, 766, 627 N.E.2d 1175, 1177 (1994) (stating thata party that appeared at the administrative agency proceedings"would be considered a party of record and would, therefore, haveto be named as a defendant"). Equally noteworthy is that in boththe hearing referee's written decision and the formal ruling ofthe Board, Tele-Communications is explicitly named as a party tothe proceedings. See Department of Communications v. Secretaryof State Merit Commission, 131 Ill. App. 3d 877, 883, 476 N.E.2d482, 486 (1985) (in finding the Department of Personnel a partyof record, the court stressed, in part, that the Department wasnamed as a respondent to the proceedings before theadministrative agency).

The foregoing undeniably establishes that Tele-Communications was a party of record in this case and, as such,needed to be named as a party-defendant and served with summonsin the manner provided by the Act. Plaintiff did neither and,consequently, his complaint for review must be dismissed.⁽¹⁾ SeeLockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268 (holding theplaintiff's failure to join and properly serve the superintendentof police, who was a necessary party, mandated dismissal ofaction); Veazey v. Baker, 322 Ill. App. 3d 599, 604, 749 N.E.2d1060, 1063 (2001) (finding Board of Review of the Department ofEmployment Security was a necessary party to review action andruling that the claimant's failure to join and properly serve theBoard required dismissal); Zelisko v. Board of Fire and PoliceCommissioners of the Village of Oak Brook, 285 Ill. App. 3d 323,328, 674 N.E.2d 489, 492 (1996) (administrative review actiondismissed where plaintiff failed to name and properly serve amember of the Board of Fire and Police Commissioners who wasdeemed to be a necessary party).

Plaintiff does not seek the opportunity to file an amendedcomplaint joining Tele-Communications as a defendant. Rather,plaintiff contends the filing of his amended complaint addingLaSalle, his asserted true employer, is sufficient to defeatdismissal. In so arguing, plaintiff relies on that portion ofsection 3-107(a) that states:

"If, during the course of a reviewaction, the [circuit] court determines that aparty of record to the administrativeproceedings was not made a defendant asrequired *** and only if that party was notnamed by the administrative agency in itsfinal order as a party of record, then thecourt shall grant the plaintiff 21 days fromthe date of the determination in which toname and serve the unnamed party as adefendant." 735 ILCS 5/3-107(a) (West 2000).

Based on the above, plaintiff claims he had a right to file anamended complaint and suggests his amended pleading namingLaSalle satisfies the mandates of the Act.

The portion of section 3-107(a) cited above does nothing tothwart dismissal of plaintiff's cause. As that section expresslyprovides, amendment is allowed "only if *** [the] party [ofrecord to the administrative proceedings] was not named by theadministrative agency in its final order as a party of record." Here, Tele-Communications is expressly named as a party in theBoard's written decision. Plaintiff, even assuming Tele-Communications was not so named, amended his complaint to addonly LaSalle, which, according to the record materials, was nevera party to the administrative proceedings. Clearly, the portionof section 3-107(a) relied upon by plaintiff has no application.

The fact LaSalle may have been plaintiff's true employer, afact plaintiff emphasizes to this court, is of no consequence asto the question of plaintiff's compliance with the Act. Plaintiff's naming of LaSalle in his amended complaint has nobearing on our analysis since the Act necessitated that Tele-Communications, as a party of record, be included as a defendant.A party's strict compliance with the procedural requirements ofthe Act is mandated and, accordingly, plaintiff's failure to joinand properly serve Tele-Communications is fatal to his complaintfor review.

For the following reasons, the judgment of the circuit courtis affirmed.

Affirmed.

WOLFSON and SOUTH, JJ., concur.

1. While some decisions have deemed the failure to name anecessary party under section 3-107(a) a jurisdictional defectthat will preclude a court from considering a complaint foradministrative review (see Biscan v. Village of Melrose Park Bd.Of Fire & Police Commissioners, 227 Ill. App. 3d 844, 847, 661N.E.2d 424, 427 (1996); Central States Trucking Co. v. Departmentof Employment Security, 248 Ill. App. 3d 86, 88, 618 N.E.2d 430,432 (1993); Associated General Contractors v. Chun, 245 Ill. App.3d 750, 754, 615 N.E.2d 386, 389 (1993), our supreme court hasavoided such a characterization, instead holding that the effectof noncompliance with the joinder requirements of section 3-107(a), regardless of its label, requires dismissal of the reviewproceeding. McGaughy v. Illinois Human Rights Commission, 165Ill. 2d 1, 11, 649 N.E.2d 404, 409-10 (1995); Lockett, 133 Ill.2d at 354, 549 N.E.2d at 1268. As explained by the court, "thefailure to join all necessary parties is no less serious forbeing nonjurisdictional." McGaughy, 165 Ill. 2d at 11, 649N.E.2d at 410. Thus, our characterization of plaintiff's failureto name Tele-Communications as a defendant here as jurisdictionalor nonjurisdictional is of no consequence since the result ofplaintiff's noncompliance with section 3-107(a) is the same ineither case - dismissal of his complaint.