ILLINOIS POLLUTION CONTROL BOARD
    September 3,
    1992
    JOSEPH B.
    STRATTON and
    )
    PANELA
    J.
    STRATTON,
    )
    )
    Complainants,
    )
    v.
    )
    PCB 90—108
    )
    (Enforcement)
    CHARLES N. ROCK and
    )
    LITTLE CAESARS PIZZA,
    )
    )
    Respondents.
    ORDER OFTHE BOARD
    (by J. Theodore Meyer):
    This matter is before the Board on two motions.
    On August
    3,
    1992,
    respondent Little Caesars Pizza
    (Little Caesars)
    filed a
    motion for summary judgment.
    On August
    4,
    1992,
    complainants
    Joseph and Pamela Stratton filed a motion to withdraw their
    complaint against Little Caesars.
    On August 17,
    1992, at the
    request of the hearing officer,
    the Strattons filed a corrected
    motion to withdraw, clarifying that they also seek to withdraw
    their complaint against Charles N. Rock.
    Also on August
    17,
    Little Caesars filed an objection to the Strattons’ request to
    withdraw their complaint.’
    The Board grants the Strattons’ motion to withdraw their
    complaint against both respondents.
    The Board notes that Little
    Caesars objects to granting the motion to withdraw, arguing that
    the Strattons should not be allowed to avoid the effect
    of prior
    admissions, which Little Caesars contends entitle it to a
    judgment as
    a matter of law, by withdrawing the complaint.
    However,
    the Board does not find that the Strattons’ request to
    withdraw their complaint is an attempt to avoid a ruling on the
    motion for summary judgment.
    The Strattons’ motion to withdraw
    is dated July
    29,
    1992
    (there is no separate proof
    of service),
    while the proof of service for Little Caesars’ motion for summary
    judgment states that the motion was mailed on July 31,
    1992.
    The
    Strattons have chosen to withdraw their complaint, and the Board
    finds nothing improper about the request.
    The motion to withdraw
    the complaint is granted, and this case is dismissed.
    Because the complaint has been withdrawn and the case
    dismissed, Little Caesars’ motion for summary judgment is moot.
    However,
    the Board feels compelled to address several assertions
    Little Caesars’ August
    17 filing also included a motion to
    continue the September 10 hearing scheduled in this case.
    The
    hearing officer granted that motion to continue on August
    18.
    O135-O~8I
    2
    in that motion.
    Little Caesars’ motion is premised upon its
    contention that the Strattons, by failing to respond to Little
    Caesars’ request for admission of facts, have admitted facts
    which entitle Little Caesars to summary judgment.
    The motion
    then goes on to state:
    5.
    LITTLE CAESARS PIZZA,
    to avoid incurring
    unnecessary costs, has taken st,~psto discontinue
    preparations for the September 10,
    1992 hearing, and to
    release the witnesses that were to be called to provide
    testimony at that time.
    The undersigned counsel for
    LITTLE CAESARS PIZZA has also taken vacation, beginning
    August
    1,
    1992,
    and for the ten
    (10) days that follow.
    6.
    It will be a violation of LITTLE CAESARS PIZZA’S
    due process rights, and a charge against the integrity
    of the Pollution Control Board’s proceedings,
    if
    summary judgment is not, under the circumstances,
    granted to the Respondents.
    (Motion at 3.)
    It is,
    of course, within Little Caesars’ counsel’s
    discretion to take the risk,
    on July 31,
    to discontinue
    preparations for a September 10 hearing, based upon a motion for
    summary judgment which had not yet been filed, much less ruled
    upon.
    However, any implication that a denial of summary judgment
    would deny Little Caesars due process because of the
    discontinuation of hearing preparations,
    is erroneous.
    If the
    Board had reached the issue of summary judgment, its decision
    would have been based on whether there was any genuine issue of
    material fact entitling Little Caesars to judgment as a matter of
    law, not based upon attacks on the integrity of Board
    proceedings.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act
    (Il1.Rev.Stat.
    1991,
    ch.
    111½
    ,
    par.
    1041) provides for the
    appeal of final Board orders.
    The Rules of the Supreme Court of
    Illinois establish filing requirements.
    (But see also 35
    Ill.Adm.Code 101.246 “Motions for Reconsideration” and Casteriada
    v.
    Illinois Human Rights Commission
    (1989),
    132 Ill.2d
    304,
    547
    N.E.2d 437.)
    O135-O~82
    3
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby cert’fy that the above order was adopted on the
    ~
    day of
    ______________,
    1992, by a vote of
    7-~
    Dorothy N./Gunn, Clerk
    Illinois Pollution Control Board
    01 35-O~83

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