FOURTH DIVISION

 August 30, 2007 

1-06-1827

WILLIAM TUCKER, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. )

)

THE BOARD OF TRUSTEES OF THE POLICE )

PENSION FUND OF THE VILLAGE OF PARK )

FOREST ILLINOIS, ) The Honorable

) Anthony L. Young,

Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Plaintiff William Tucker, who suffers from bilateral hearing

impairment, appeals the decision of defendant Board of Trustees

of the Police Pension Fund of the Village of Park Forest,

Illinois (Board), which determined that it did not have

jurisdiction to hear his request for pension benefits. In this

court, plaintiff contends that the Board possessed statutory

authority to hear his request and that he is entitled to pension

benefits dues to his disability.

BACKGROUND

On January 10, 1989, the Village of Park Forest Police

Department (Department) hired plaintiff as a police officer. In

October 1997, the Village of Forest Park Fire and Police
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Commission (Commission) filed charges against plaintiff and

sought to discharge him from employment. The Commission based

its charges solely on plaintiff's alleged inability to perform

full services for the Department due to his bilateral hearing

impairment. 

On November 19, 1997, plaintiff filed an application for

certificate of disability (application), in which he sought a

"line of duty" disability pension pursuant to section 3-114.1 of

the Illinois Pension Code (Pension Code) (40 ILCS 5/3-114.1 (West

2002)) and, in the alternative, a "not on duty" disability

pension pursuant to section 3-114.2 of the Pension Code (40 ILCS

5/3-114.2 (West 2002)). Therein, plaintiff reserved his

entitlement to benefits in the event of a discharge.

On or about December 15, 1997, the Commission terminated

plaintiff's employment with the Department based on his

disability of bilateral hearing impairment. Thereafter,

plaintiff filed a discrimination action against the Village of

Forest Park in federal court under the Americans With

Disabilities Act (ADA) of 1990 (42 U.S.C. § 12101 et seq.

(2000)). 

Subsequently, on February 6, 1998, plaintiff sought a "stay"

in the proceedings on his application until a resolution was

reached on his ADA claim in the federal court. In a written
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correspondence to plaintiff's attorney via the Board's attorney

on February 13, 1998, the Board declined to "stay" proceedings 

On May 21, 1998, the Board notified plaintiff that pursuant

to section 3-115 of the Pension Code (40 ILCS 5/3-115 (West

2002)), he was scheduled to appear for two medical examinations

by Board-selected physicians. The examinations were scheduled

for June 15, 1998, and June 24, 1998. The record shows that

plaintiff cancelled both examinations.

On June 12, 1998, plaintiff notified the Board that he was

withdrawing his application. In doing so, however, plaintiff

expressly stated that he preserved his right to seek disability

benefits at a later date. The Board responded by scheduling a

hearing on the merits of plaintiff's application. At the ensuing

hearing, plaintiff informed the Board that he would proceed on

his application.

On August 19, 1998, plaintiff again notified the Board in

writing that he did not want to proceed with his application, but

wished to preserve his right to proceed on the application at a

later date. Plaintiff requested that the Board "stay"

proceedings until the resolution of his federal lawsuit. 

Pursuant to an August 27, 1998, notice of hearing, the Board

informed plaintiff that it had scheduled a hearing on the merits

of his application for September 8, 1998.
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On September 1, 1998, plaintiff notified the Board that he

was withdrawing his application. The Board, however, denied

plaintiff's motion to withdraw his application during the

September 8, 1998, hearing.

On November 1, 1998, the Board issued a written "Decision

and Order" in which it dismissed plaintiff's application with

prejudice due to his failure to submit to the scheduled medical

examinations. The Board also informed plaintiff that it would

not "have jurisdiction over Applicant as a result of his

discharge from the Police Department, in the event that Applicant

attempts to renew his disability application." Plaintiff then

filed a "Complaint for Administrative Review" of the Board's

decision with the circuit court of Cook County on November 24,

1998.

On February 18, 2000, the circuit court reversed the Board's

decision and held that the Board erred in dismissing plaintiff's

application. The Board appealed on March 7, 2000.

On March 14, 2001, this court entered its decision in the

matter. Tucker v. Village of Park Forest, No. 1-00-0789 (2001)

(unpublished order under Supreme Court Rule 23). Therein, this

court determined that the Board erroneously denied plaintiff's

motion to withdraw his application. This court noted that

nothing in the Pension Code prevented an applicant from
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voluntarily withdrawing his application for pension benefits. In

so finding, this court also acknowledged the Board's concern that

if plaintiff withdrew his application, he would be unable to file

a new application at a later date because the Board would not

have jurisdiction to rule on the petition under the Pension Code

since plaintiff would no longer be employed as a police officer. 

This court concluded, however, that the Board's concerns were

premature. As such, this court held that the Board's ruling

dismissing plaintiff's application for pensions benefits was

vacated as void and remanded the case to the Board to effectuate

and give recognition to plaintiff's voluntary withdrawal of his

application. Tucker, slip op. at 9.

On April 3, 2001, plaintiff filed a "Motion to Withdraw His

September 1, 1998, Withdrawal of His Application for a

Certificate of Disability" with the Board. Subsequently, on

August 27, 2001, the Board vacated its November 1, 1998, ruling

and granted plaintiff's September 1, 1998, motion to withdraw in

accordance with this court's Rule 23 order. The Board did not

address plaintiff's April 3, 2001, motion to withdraw his

September 1, 1998, motion to withdraw.

On February 15, 2002, plaintiff filed a "Motion to Set

Pending Motions for Hearing and Compel Decision" and an

"Alternative Motion to Reinstate Application for Certificate of
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Disability." At a regular quarterly meeting on March 5, 2002,

the Board discussed plaintiff's motions and rendered a verbal

decision that it no longer had jurisdiction to rule on

plaintiff's pending motions. The Board confirmed its ruling

through its attorney in a March 11, 2002, letter to plaintiff,

which was served via facsimile. The letter provided in pertinent

part:

"I regret to inform you that the

Pension Board cannot take any

action with respect to either of

the Motions as it lacks

jurisdiction over these matters,

for two reasons. First on August

27, 2001 the Pension Board entered

its 'Decision and Order on Remand,'

granting Mr. Tucker's request to

'withdraw' his disability pension

application. That Decision

terminated any proceedings before

the Pension Board and no complaint

for administrative review was filed

to my knowledge. Secondly, your

client is no longer a 'police
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officer' and therefore under

DeFalco vs WoodDale Firemen's

Pension Fund [sic], [122 Ill. 2d 22

(1988),] your client is no longer

eligible to apply for a disability

pension." 

On March 28, 2002, plaintiff filed a "Complaint for

Administrative Review" of the Board's decision with the circuit

court. The circuit court affirmed the Board ruling in its June

9, 2006, written order. Plaintiff appealed.

ANALYSIS 

Pursuant to section 3-148 of the Pension Code (40 ILCS 5/3-

148 (West 2004)), we review the Board's decision in accordance

with the Administrative Review Law (735 ILCS 5/3-101 et seq.

(West 2004)). Knight v. Village of Bartlett, 338 Ill. App. 3d

892, 898 (2003). Accordingly, our review extends to all

questions of fact and law presented in the record. Knight, 338

Ill. App. 3d at 898. That said, the determinative issue in the

case at bar is whether the Board properly determined that it did

not have jurisdiction to review plaintiff's February 15, 2002,

motions. Since the Board clearly based its March 11, 2002,

decision on its interpretation of provisions in the Pension Code,
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we review its interpretation, which presents a question of law

(Knight, 338 Ill. App. 3d at 898), de novo (City of Belvidere v.

Illinois State Labor Relations Board, 181 Ill. 2d 191, 205

(1998)). 

In this court, the Board first contends that plaintiff

failed to seek a timely review of its August 27, 2001, decision,

which granted plaintiff's September 1, 1998, motion to withdraw

his application pursuant to this court's Rule 23 order. As such,

the Board argues that the Board lacked jurisdiction to review

that decision on March 11, 2002. In making its argument, the

Board relies on Fredman Brothers Furniture Co. v. Department of

Revenue, 109 Ill. 2d 202 (1985). 

In Fredman Brothers Furniture Co., the Department of Revenue

issued a notice of tax liability to petitioner Fredman Brothers

Furniture Insurance Company, Inc. (Fredman Brothers), which

Fredman Brothers protested. Thereafter, an administrative

hearing was held to determine the correct tax liability figure,

and following the hearing, the Department of Revenue levied a

final assessment of $12,403.78 in taxes, penalties, and interest

against the petitioner on August 24, 1981. The petitioner

responded by filing a request for a rehearing on September 24,

1981, which was denied on October 15, 1981. Subsequently, the

petitioner filed an action in the circuit court of Peoria County
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on November 19, 1981, for judicial review of the tax assessment.

The circuit court initially found that the petitioner failed

to post a sufficient bond within 20 days of the filing of its

action and dismissed the case. The appellate court reversed that

ruling and remanded the case with directions to review the

petitioner's complaint. On remand, the Department of Revenue

filed a motion to dismiss where it argued that the petitioner

failed to file a timely complaint with the circuit court within

35 days of the Department's final ruling on August 24, 1981. The

circuit court agreed and dismissed the case. The appellate court

affirmed that ruling, and petitioner again appealed.

On review, the supreme court determined that the circuit

court was exercising special jurisdiction conferred by the

Administrative Review Act (Act) (Ill. Rev. Stat. 1981, ch. 110,

par. 265). Fredman Brothers Furniture Co., 109 Ill. 2d at 211. 

As such, the court determined that the provisions of the Act

specifying the time period in which to file a complaint for

administrative review were jurisdictional. Fredman Brothers

Furniture Co., 109 Ill. 2d at 211. The court concluded that the

August 24, 1981, final assessment by the Department of Revenue

constituted a final administrative decision. Fredman Brothers

Furniture Co., 109 Ill. 2d at 213. In so ruling, the supreme

court found that the petitioner's filing for a rehearing
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constituted a new action, and thus did not postpone the time for

filing a complaint for administrative review. Fredman Brothers

Furniture Co., 109 Ill. 2d at 212-13. Accordingly, the supreme

court affirmed the Department of Revenue's ruling where the

petitioner did not file a complaint for administrative review

until 87 days after the Department's final decision, which was

well outside the 35-day window. Fredman Brothers Furniture Co.,

109 Ill. 2d at 212-15. 

We recognize that, unlike Fredman Brothers Furniture Co.,

the Board in the case at bar does not argue that the circuit

court lacked jurisdiction to rule on its August 27, 2001, ruling,

but that the Board lacked jurisdiction on March 11, 2002, to

review its August 27, 2001, ruling. As such, Fredman Brothers

Furniture Co., does not provide support for the Board's decision.

Nonetheless, we find that the Board properly concluded that

it had lost jurisdiction prior to March 11, 2002. We first

address plaintiff's contention that his April 3, 2001, motion was

still pending until the Board's March 11, 2002, ruling, because

the Board's August 21, 2001, order neglected to comment on his

April 3, 2001, motion to withdraw his September 1, 1998, motion

to withdraw his application. This court's March 14, 2001, Rule

23 order instructed the Board to grant plaintiff's September 1,

1998, motion to withdraw his application. Since the Board could
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only act within the bounds of this court's mandate (Allen v.

Young, 3 Ill. App. 3d 528, 530 (1972)), plaintiff's April 3,

2001, motion to withdraw his September 1, 1998, motion had no

effect. Moreover, the April 3, 2001, motion was filed nearly

three years after plaintiff filed his motion to withdraw his

application on September 1, 1998. Accordingly, the motion was no

longer pending following the Board's August 27, 2001, ruling.

Next, we address plaintiff's contention that the Board

erroneously interpreted the Pension Code to conclude that it

lacked jurisdiction to rule on his February 15, 2002, motion to

refile his application. In Robbins v. Board of Trustees of the

Carbondale Police Pension Fund, 177 Ill. 2d 533, 539 (1997), our

supreme court noted that the controlling principles in reviewing

statutory language are familiar when analyzing the Pension Code. 

The court provided:

" 'The primary rule of statutory

interpretation is that a court

should ascertain and give effect to

the intention of the legislature. 

The legislative intent should be

sought primarily from the language

used in the statute. [Citation.]

The statute should be evaluated as
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a whole; each provision should be

construed in connection with every

other section. [Citation.] "Where

the language of the act is certain

and unambiguous the only legitimate

function of the courts is to

enforce the law as enacted by the

legislature." [Citation.]' "

Robbins, 177 Ill. 2d at 539,

quoting Abrahamson v. Illinois

Department of Professional

Regulation, 153 Ill. 2d 76, 91

(1992).

Plaintiff at bar applied for pension benefits under sections

3-114.1 and 3-114.2 of the Pension Code, which both explicitly

state that a "police officer" may apply for disability pension

benefits. Section 3-114.1(a) states in pertinent part:

"If a police officer as the

result of sickness, accident or

injury incurred in or resulting

from the performance of an act of

duty, is found to be physically or

mentally disabled for service in
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the police department, so as to

render necessary his or her

suspension or retirement from the

police service, the police officer

shall be entitled to a disability

retirement pension equal to the

greatest of (1) 65% of the salary

attached to the rank on the police

force held by the officer at the

date of suspension of duty or

retirement, (2) the retirement

pension that the police officer

would be eligible to receive if he

or she retired (but not including

any automatic increase in that

retirement pension), or (3) the

pension provided under subsection

(d), if applicable." 40 ILCS 5/3-

114.1(a)(West 2004).

Section 3-114.2 provides in pertinent part:

"A police officer who becomes

disabled as a result of any cause

other than the performance of an
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act of duty, and who is found to be

physically or mentally disabled so

as to render necessary his or her

suspension or retirement from the

police service in the police

department, shall be entitled to a

disability pension of 50% of the

salary attached to the officer's

rank on the police force at the

date of suspension of duty or

retirement." 40 ILCS 5/3-114.2

(West 2004).

Pursuant to the language of these statutes, the Board contends

that plaintiff had to be a "police officer" when he filed his

application for disability pension benefits. 

Section 3-106 defines a police officer as:

"Any person who (1) is

appointed to the police force of a

police department and sworn and

commissioned to perform police

duties; and (2) within 3 months

after receiving his or her first

appointment and, if reappointed,
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within 3 months thereafter, or as

otherwise provided in Section 3-

109, makes written application to

the board to come under the

provisions of this Article.

Police officers serving

initial probationary periods, if

otherwise eligible, shall be police

officers within the meaning of this

Section." 40 ILCS 5/3-106 (West

2004).

The record clearly shows that when plaintiff filed his motion to

refile his application for disability pension benefits on

February 15, 2002, he was no longer employed as a police officer

by the Department. As such, the Board argues that it had no

jurisdiction to consider his refiled application.

Plaintiff counters, in part, that this court's previous

ruling rendered the Board's November 1, 1998, ruling on his

initial application void and, thus, his subsequent motions were

timely filed and the Board retained jurisdiction. Plaintiff,

however, fails to comprehend that although this court's ruling

rendered the Board's November 1, 1998, ruling void, it also

instructed the Board to grant plaintiff's September 1, 1998,
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1Formerly Ill. Rev. Stat. 1981, ch. 1081⁄2, par. 4-110.

-16-

motion to withdraw. Thus, plaintiff's motion to refile his

application constituted an attempt to file a second application,

which he clearly sought to do five years after he was discharged.

Plaintiff further argues that Di Falco v. Board of Trustees 

of the Firemen's Pension Fund of the Wood Dale Fire Protection

District No. One, 122 Ill. 2d 22 (1988), provides guidance in the

analysis of this case. Although plaintiff recognizes that the

holding in Di Falco contradicts his argument, he relies on the

supreme court's analysis to support his contention in the case at

bar.

In Di Falco, our supreme court affirmed the ruling of the

board of trustees of the Firemen's Pension Fund of Wood Dale Fire

Protection District No. One (board), which dismissed a

firefighter's application for pension benefits as untimely where

the plaintiff filed the application one year after his discharge

from the fire department. Similar to the police officer

provisions' use of "police officer" in the Pension Code, the

firefighter pension provisions of the Pension Code use the term

"fireman" when discussing rights to pension benefits. See 40

ILCS 5/4-110 (West 2004).1 The supreme court found section 4-110

of the Pension Code to be ambiguous on its face when defining

"fireman" for determination of employment. Di Falco, 122 Ill. 2d
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at 27. The supreme court, however, determined that other

sections of the Pension Code established that the plaintiff

therein was not entitled to disability benefits. Di Falco, 122.

Ill. 2d at 33. 

Plaintiff at bar contends that if we similarly find sections

3-114.1 and 3-114.2 to be ambiguous, unlike Di Falco, we would

find that he was entitled to pension benefits based on other

provisions of the Pension Code. We disagree.

We initially recognize that the other cases plaintiff cites

to support his argument, Hahn v. Police Pension Fund of City of

Woodstock, 138 Ill. App. 3d 206 (1985) (officer who filed for

benefits and then submitted resignation did not forego benefits

due to resignation), Pierce v. Board of Trustees of the Police

Pension Fund of the City of Waukegan, 177 Ill. App. 3d 915 (1988)

(appellate court reversed Board's denial of off duty benefits in

case where police officer filed application for benefits prior to

his discharge), Stec v. Oak Park Police Pension Board, 204 Ill.

App. 3d 556 (1990) (police officer's resignation subsequent to

his application for pension benefits did not disqualify his

application ), and Greenan v. Board of Trustees of the Police

Pension Fund of Springfield, 213 Ill. App. 3d 179 (1991) (as in

Hahn, the plaintiff's resignation subsequent to his application

for pension benefits did not disqualify his right to benefits),
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concerned police officers who resigned or were discharged after

they filed their applications for pension benefits. As such, we

find those cases inapposite.

Next, a review of the statutory language in sections 3-114.1

and 3-114.2 establishes that pension benefits are only made

available for police officers as defined in section 3-106 of the

Pension Code. As such, for purposes of sections 3-114.1 and 3-

114.2, police officers are those "appointed to a police force of

a police department and sworn and commissioned to perform police

duties" (40 ILCS 5/3-106 (West 2004)). We find this language

clearly indicates that the disability pension benefits are for

those actively employed as police officers. Thus, where

plaintiff was no longer employed as a "police officer" at the

time he filed his second application, he was not entitled to

disability benefits under the Pension Code.

Nonetheless, even if we found sections 3-114.1 and 3-114.2

to be ambiguous on their face as to whether an applicant for

disability pension benefits had to be a "police officer" at the

time of application, or just at the time of disability, our

examination of other sections of the Pension Code support the

conclusion that the term "police officer" used in sections 3-

114.1 and 3-114.2 is operative at the time of disability and

application. Similar to section 4-113 of the Pension Code (Ill.
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2Now 40 ILCS 5/4-113 (West 2004).

-19-

Rev. Stat. 1981, ch. 108 1⁄2, par. 4-113),2 as examined in Di

Falco, 122 Ill. 2d at 29-30, section 3-116 of the Pension Code

(40 ILCS 5/3-116.1 (West 2004)) provides a disability pension

option for disabled police officers who attain 50 years of age

and 20 years of active service when their period of disability is

added to years of active service. The option allows the police

officer to select that his retirement pension benefits be based

on his disability benefit pay upon filing for retirement. See 40

ILCS 5/3-116.1 (West 2004). Thus, as the supreme court

recognized in analyzing the disability pension option for a

fireman in Di Falco, 122 Ill. 2d at 29-30, since a discharged

police officer cannot elect to retire, the term "police officer"

in section 3-116.1 does not concern discharged officers. It

thereby follows that the term "police officer" in sections 3-

114.1 and 3-114.2 also do not include discharged police officers. 

Accordingly, we conclude that the Board correctly held that it

did not have the authority to review plaintiff's second

application, which was filed nearly five years after plaintiff

was discharged as a police officer. 

In reaching this conclusion, we dismiss any claims based on

equitable or due process principles. This court has previously

determined that pension benefits may be denied under the Pension
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Code when the application for benefits is not filed in a timely

manner. See Donnells v. Woodridge Police Pension Board, 159 Ill.

App. 3d 735 (1987) (a police officer on medical leave, received

notice of an opportunity to file for participation in the police

pension fund where he previously had no rights due to his age at

the time of employment, but due to his failure to timely file for

benefits, the Board denied him participation in the pension

fund). 

We note that this case does not involve a municipality

discharging a police officer for the purpose of denying him his

right to apply for disability benefits. To the contrary, the

record shows that the Board provided a hearing for plaintiff upon

the filing of his first application when he was still employed as

a police officer, and warned plaintiff that a withdrawal of his

initial application might result in its loss of jurisdiction over

a subsequent filing. In spite of this warning, plaintiff refused

to be examined by physicians and went to the extent of filing an

appeal to enforce his right to withdraw his application for

disability pension benefits.

In agreeing with plaintiff's position that he had a right to

withdraw his application, this court said, "While the Board's

finding regarding its prospective jurisdiction over a re-filing

may well be accurate, this issue was not ripe for determination
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and, accordingly, the Board was not in the position to pass on

that question." Tucker, slip op. at 9. The Board followed the

mandate of this court on August 27, 2001, when it granted

plaintiff's September 1, 1998, motion to withdraw his

application. The Board's concern that it would lose jurisdiction

over a refiled application indeed did prove to be accurate. 

As previously explained, plaintiff's "motion to withdraw his

motion to withdraw" was ineffectual as being filed in an untimely

(albeit early) manner. Plaintiff's failure to take any action in

response to the Board's order of August 27, 2001, led to the

Board lacking jurisdiction to subsequently grant plaintiff the

relief he sought. As discussed above, plaintiff, as a discharged

employee, no longer had a right to file his second application

for pension benefits under the Pension Code. Thus, despite

plaintiff's claims to the contrary, there was no violation of an

"enforceable contractual relationship" as provided in section 5

of article XIII of the Illinois Constitution (Ill. Const. 1970,

Art. XIII, § 5). 

CONCLUSION

For the foregoing reasons, we affirm the ruling of the

Board. 

Affirmed. 
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CAMPBELL and NEVILLE, JJ., concur.