dissenting:
I respectfully disagree with the denial of the motion to dismiss the appeal. The employer did not comply with section 19(f)(1) of the Act. Section 19(f)(1) provides in part:
"[N]o request for a summons may be filed and no summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made.” (820 ILCS 3Q5/19(f)(l) (West 1992).)
The respondent’s affidavit states that the decision was received on June 21, 1993, and on July 6, 1993, respondent, through its attorney, mailed a check in the amount of $35 to the Commission. The affidavit was filed with the circuit clerk on July 9,1993, the same date respondent filed its review proceedings.
The affidavit of the attorney does not extend the time for making payment but is merely a substitute for filing the receipt of the Commission. The section requires that the affidavit state that payment has been "made” not "mailed.” It requires little more to include in the affidavit a statement that payment was received by the clerk. Respondent’s affidavit does not state that the payment was timely.
There is nothing in this record, nor in the affidavit, to show that payment was in possession of the secretary of the Commission.
As stated in Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 510, 451 N.E.2d 866, 868:
"[T]he affidavit filed by the claimant’s attorney which purports to show payment of the probable cost of the record to the secretary of the Commission is unsatisfactory to show substantial compliance with the statute. The affidavit merely indicates that a check for such payment was mailed to the secretary of the Commission on December 3, 1981. Since the check might have been lost or misplaced in transit by the postal service, this affidavit is inadequate to demonstrate that the Commission had actually received payment of the probable cost of the record before the writ of the circuit court issued.”
In McGehee v. Industrial Comm’n (1987), 160 Ill. App. 3d 618, 622, 513 N.E.2d 1136, 1138, this court stated:
"In this case, no proof in the record establishes that a receipt was physically exhibited to the clerk before the issuance of the writ. There was no affidavit of the attorney filed to show payment, and there was no action taken by the clerk to verify with the commission that the payment had been made.”
It appears the McGehee court concluded that the amendment allowing proof by attorney affidavit retained a requirement that the circuit court have proof that payment had been received by the Commission prior to issuance of a writ.
If the affidavit of claimant’s attorney complies with the statute (the assertion that payment has been mailed rather than made), then, as in this case, summons could issue prior to the Commission’s receipt of payment for the cost of the record, a sequence at odds with the plain language of the statute. As a parallel, it must be asked whether use of such affidavit permissively may extend the 20-day period for which payment can be made to the Commission. An attorney could mail his check to the Commission and file his affidavit with the circuit clerk on the 20th day, and the Commission not receive payment until two or more days later, a scenario at odds with the statutory 20-day limit and the case law providing that payment of the Commission’s fees is a condition precedent. (See Bess v. Industrial Comm’n (1994), 264 Ill. App. 3d 225, 228-29, 636 N.E.2d 1021, 1023-24.) The amendment permitting proof by affidavit does not extend the 20-day time limit for proof of payment to the circuit clerk.
I do not believe that Harrisburg-Raleigh applies in cases such as this. That case concerned notices of appeal and appellate practice.
COLWELL, J., joins in this dissent.