ILLINOIS POLLUTION CONTROL BOARD

July

13,

1989

IN THE MATTER OF:

)

J

& R LANDFILL,

INC.,

)

AC 89—78

(St. Clair County

Docket No.

89—8SC)

DISSENTING OPINION

(by B.

Forcade):

I respectfully dissent from the majority opinion.

I believe

that the majority wrongly reads

the applicable case law,

the Act,

and Board procedural

rule 103.123,

resulting

in an erroneous

conclusion:

the Agency or

State’s Attorney can only effect

service of an administrative citation on the registered agent of

the corporation or an agent expressly authorized for

receipt of

administrative citation process.

I believe that due process,

the

Act, and the Board’s rules permit service on any authorized

(actual)

agent of

the corporation, whether or not that authority

expressly included receipt of service of process.

I would have

proceeded to hearing to determine whether service was proper.

The cases cited

by the majority do not support a conclusion

that Mr. Blevins could not,

as a matter of

law,

receive service

on behalf of

J

&

R.

Schoenberger v.

Chicago Transit Authority,

84

Ill.

App.

3d

1132,

405 N.E.2d 1076

(1st Dist 1980),

has

nothing, whatsoever,

to do with receipt

of service.

That case

involved an actual agent who usurped his actual authority.

The

issue was whether the third person dealing with that agent could

have reasonably believed that the agent had apparent authority to

bind the principal,

or whether the principal had ratified the

agent’s unauthorized acts.

84

Iii. App.

3d at

——,

405 N.E.2d at

1981—82.

The other

case,

Slates

v.

International House of

Pancakes,

Inc.,

90

Iii. App.

3d 716,

413 N.E.2d 457

(4th Dist

1980),

does involve service of process,

but

it did not turn on

the issue involved here.

That case held that service on an

employee of

a franchisee

w~s

ineffective against the

fran—

chisor.

After

full consideration of

the facts

relating

to

the

relationships between

the franchisee and the franchisor,

the

court concluded

that there was

no agency relationship between

them that would have rendered service effective.

90

Ill.

App.

3d

at

——,

413 N.E.2d at 466.

Interestingly,

the court

began

its

analysis with

the observation,

‘While

the

individual served

was

admittedly an agent/employee of

the

franchisee,

there was no

evid?~ncepresented that he maintained such a relationship with

the

franchisor.”

90

Ill.

App.

3d at

——,

413 N.E.2d at

463

(emphasis added).

Where

the

facts

indicate

that one corporation

so controls the affairs of another corporation

I01—165

---

—2—

that the two entities are essentially one, the

court

will

disregard

the

corporate

entities

and hold service of process on one corporation

effective as

to the other.

90

Ill.

App.

3d

at

——,

413

N.E.2d

at

464

(citation omitted).

Thus,

had the facts indicated that the franchisee was

the agent

of the franchisor,

the court may have come

to a different

result.

Further,

the franchisor never actually received the

summons and complaint served on the franchisee’s employee.

90

Ill.

App.

3d at

——,

413 N.E.2d at

460.

I believe that Illinois case law would support

a conclusion

that Board procedural rule 103.123 and Section 31.1(b)

of

the Act

reaches as far

as do the rules of civil procedure.

Rule 2—204 of

the Code of Civil Procedure,

Ill.

Rev.

Stat.

ch.

110,

par.

2—204,

authorizes service on the “registered agent or any officer or

agent of the corporation found anywhere

in the State

....‘

Board

rule 103.123 allows service “on the respondent or his authorized

agent

....“

35

Iii. Adm. Code 103.123

(1988);

see 13

Ill.

Reg.

——

(July 21,

1989)

(effective July 10,

1989;

to be codified as 35

Ill. Adm. Code 101.141).

In Illinois, service on a corporation

is effective

if on an actual agent of the corporation, but it

is

not effective

if on an apparent agent of the corporation.

Slates

v. International House of Pancakes,

90

Ill. App.

3d at

—-,

413

N.E.2d at 466.

Thus,

the Board rule and the Act specify

“authorized agent,” because without express authorization to

create the agency relationship, there

is

no actual agency.

See

Schoenberger

v. Chicago Transit Authority,

84

Ill. App.

3d at

——,

405 N.E.2d at

1080 (“The authority of an agent may only come from

the principal and

it

is therefore necessary to trace

the source

of an agent’s authority to some word or act of the alleged

principal.”)

Therefore,

I read “authorized agent”

as

synonomous with

“actual agent,” and

I would permit service on any actual agent

-

whether

or not

that authority expressly embraces receipt of

service.

The majority unnecessarily limits the scope of

effective service on a corporation.

Illinois cases more clearly

support this position than they support

that adopted by the

major i ty.

In Dobrowolski

v.

La Porte,

38

Ill. App.

3d

492,

348 N.E.2d

237

(1st Dist 1976),

the court observed,

“It must be recognized

that the rules governing small claims actions are designed

to

provide an expeditious as

well

as

a simplified and inexpensive

procedure for

the handling of small claims,”

38

Ill.

App.

3d at

——,

348 N.E.2d at

239

(citations omitted).

The court

held that

“the requisites

of due process are satisfied

if the manner of

effecting service of

summons gives reasonable assurance that

101—166

---

—3—

notice will actually be given and the person against whom the

action is brought is given time to appear and defend on the

merits.”

Id.

After

its examination of the facts of the case,

the court concluded that service on an employee of

a professional

corporation was effective against

a party associated with that

corporation.

38

Ill. App.

3d at

——,

348 N.E.2d at 238.

Important was the fact that

“the record clearly indicated

that

defendant had actual notice of the service of summons and of the

pendency of the proceedings and was given ample time to appear

and defend on the merits.”

38

Ill.

App.

3d at

-—,

348 N.E.2d at

240

(citation omitted).

Also important was the fact

that

the

court did not want

to complicate an expedited procedure with

legal technicalities

—

so long as due process was fulfilled.

These important factors are also present here:

this

is an

expedited administrative proceeding,

and J

&

R did have actual

notice of

its commencement and an adequate opportunity

to defend.

Similarly,

service on a clerk-typist of the defendant

corporation was held proper

in Millard

v.

Castle Baking Co.,

23

Ill. App.

2d 51, 161 N.E.2d 483

(1st Dist.

1959)

(abstract

only).

The typist had received service

in other suits

in which

the corporation appeared and defended.

Also,

in Megan

v.

L.B.

Foster Co.,

1

Ill. App.

3d

1036,

275 N.E.2d 426

(2d Dist.

1971),

“service upon an intelligent clerk of

a company who acts

as a

receptionist and who understood the purport of

the service of

summons was sufficient

...

.“

1

Ill. App.

3d at

——,

275 N.E.2d at

427; but see Jansma Transport,

Inc.

v. Torino Baking Co.,

27

Ill.

App.

2d

347,

——,

169 N.E.2d

829,

831

(1st Dist.

1960)

(service

was improper where the clerk was

a recent immigrant who spoke

little English and who had only worked for one month for the

defendant).

The upshot of

this analysis

is that the majority has

unnecessarily narrowed the scope

of

effective service as a matter

of

law.

The majority has

restricted the proper

service of

administrative citation to the authorized agent

(an agent

expressly authorized

for receipt

of such service) and the

registered agent of

a corporation.

In so doing,

the majority has

needlessly reduced the effectiveness of an expedited administra-

tive

tool

intended

to encourage compliance without

a full—blown

enforcement action.

Illinois courts

resolve the issue of effective service based

on the facts of the

individual case,

as

I would have done.

I

would have sent this proceeding to hearing

to ascertain whether

Mr.

Blevir’is’ was an actual agent

(i.e.,

an “authorized agent”)

of

J

&

R Landfill,

Inc.

and whether service on him gave “reasonable

assurance that notice would

actually be given

to

J

&

R

and

that

J

& R was

given

time to appear and defend on the

merits.”

Dobrowoiski

v.

La Port,

38

Ill.

App.

3d

492,

——,

348

N.E.2d

237,

239 (1st Dist.

1976)

(citations omitted).

101—167

---

—4—

I, Dorothy

M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the abov

issenting Opinion was

submitted on the ~?~t~- day of

~

,

1989.

Dorothy M. dunn,

Clerk

Illinois Pollution Control Board

101—163