Despite this court's decisions in Kouzoukas, Barry, Martino, Barber, and Fenton, which date back to 1990, the Third District of this court has held that the Interest Act is not applicable to benefits payable under the Pension Code. See Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235, 242 (3rd Dist. 2005) ( Fenton's analysis is contrary to the rule that interest statutes are to be strictly construed; nothing will be read into them by intendment or implication) (citing In re Walker, 131 Ill. 2d 300, 304 (1989) ("interest statutes, like statutes authorizing costs, are in derogation of the common law and are to be strictly construed. Nothing will be read into such statutes by intendment or implication"), and Spina v. Toyota Motor Credit Corp., 301 Ill. App. 3d 364 (1998) (an automobile lease case where the lessor, Toyota, refused to pay interest on the lessees' security deposits)).
Despite this court's decisions in Kouzoukas, Barry, Martino, Barber, and Fenton, which date back to 1990, the Third District of this court has held that the Interest Act is not applicable to benefits payable under the Pension Code. See Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235, 242 (3rd Dist. 2005) ( Fenton's analysis is contrary to the rule that interest statutes are to be strictly construed; nothing will be read into them by intendment or implication) (citing In re Walker, 131 Ill. 2d 300, 304 (1989) ("interest statutes, like statutes authorizing costs, are in derogation of the common law and are to be strictly construed. Nothing will be read into such statutes by intendment or implication"), and Spina v. Toyota Motor Credit Corp., 301 Ill. App. 3d 364 (1998) (an automobile lease case where the lessor, Toyota, refused to pay interest on the lessees' security deposits)).
We recognize that the Third District of this court has criticized the conclusion of Fenton and its progeny, citing the principle of ejusdem generis and the rule that interest statutes should be strictly construed. Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235, 241-42 (2005). The Bassett court's disagreement with Fenton and its progeny, however, was dicta where Bassett's entire discussion of the Interest Act was superfluous because the court previously determined that the plaintiff was not entitled to interest on the increased amount of contributions refunded to him.
We recognize that the Third District of this court has criticized the conclusion of Fenton and its progeny, citing the principle of ejusdem generis and the rule that interest statutes should be strictly construed. Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235, 241-42 (2005). The Bassett court's disagreement with Fenton and its progeny, however, was dicta where Bassett's entire discussion of the Interest Act was superfluous because the court previously determined that the plaintiff was not entitled to interest on the increased amount of contributions refunded to him.
As the Board acknowledges, our appellate court has considered the issue and there is a split of authority on the matter. Fenton and its progeny, Barry v. Retirement Board of the Firemen's Annuity Benefit Fund, 357 Ill. App. 3d 749 (2005), Martino v. Police Pension Board, 331 Ill. App. 3d 975 (2002), and Barber v. Board of Trustees of the Village of South Barrington Police Pension Fund, 256 Ill. App. 3d 814 (1993), have held that prejudgment interest may be awarded based on their finding that a pension agreement, as prescribed by statute, is an "instrument of writing" within the meaning of the Interest Act. Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235 (2005), however, rejected this holding. As a general rule, prejudgment interest is recoverable only where authorized by the agreement of the parties or by statute.
into existence by virtue of a written instrument.") (emphasis added); Adams v. Am. Int'l Grp., Inc. , 339 Ill.App.3d 669, 274 Ill.Dec. 230, 791 N.E.2d 26, 30 (2003) ("[T]he written instrument must establish a debtor/creditor relationship.") (emphasis added); Krantz v. Chessick , 282 Ill.App.3d 322, 217 Ill.Dec. 892, 668 N.E.2d 77, 80 (1996) ("An instrument in writing within the meaning of the [Interest Act] is one that sets up a creditor-debtor relationship.") (emphasis added); Advance Mortg. Corp. v. Concordia Mut. Life Ass'n , 135 Ill.App.3d 477, 90 Ill.Dec. 225, 481 N.E.2d 1025, 1031โ32 (1985) (awarding prejudgment interest where written instruments "brought into being the existence of a debtor-creditor relationship") (emphasis added). Peerless cites, and the Court has encountered, no authority to support the notion that the Interest Act demands more than the mere creation of a debtor-creditor relationship, and the Court will not read into the Interest Act that which is not there. SeeBassett v. Pekin Police Pension Bd. , 362 Ill.App.3d 235, 298 Ill.Dec. 143, 839 N.E.2d 130, 136 (2005) ("[I]nterest statutes are to be strictly construed; nothing will be read into them by intendment or implication.").When Peerless's argument is read carefully, Peerless actually does not dispute that the Contract created a debtor-creditor relationship between it and Blitz. Indeed, the Contract required Blitz to use telephone numbers assigned by Peerless to place telecommunications traffic on Peerless's networks. (Contract ยงยง 3.5, 7.4).
-515, 21 Ill.Dec. 879, 382 N.E.2d 243 [Illinois pension forfeiture law, following felony conviction, does not violate state's contract clause]; Masse v. Board of Trustees (1981) 87 N.J. 252, 256, 432 A.2d 1339 [state legislature "must have intended honorable performance as a component of creditable service"]; Hames v. City of Miami Firefighters' and Police Officers' Trust (Fla. 3rd DCA 2008) 980 So.2d 1112, 1114 ["In Florida, a retired police officer forfeits all rights to receive public retirement benefits in excess of his or her accumulated contributions if the officer 'is convicted of a specified offense committed prior to retirement' "]; Steigerwalt v. City of St. Petersburg (Fla. 1975) 316 So.2d 554, 556 [upholding pension law requiring sanctions against retired employee who commits misconduct]; Booth v. Sims (1994) 193 W.Va. 323, 338, 456 S.E.2d 167 ["If an employee engages in misconduct during his or her public service, he or she may forfeit rights to collect a pension later"]; Bassett v. Pekin Police Pension Board (2005) 362 Ill.App.3d 235, 298 Ill.Dec. 143, 839 N.E.2d 130 [police officer convicted of felony forfeits right to pension benefits, but is entitled to refund of pension contributions].) Relying on Allen , supra , 34 Cal.3d 114, 192 Cal.Rptr. 762, 665 P.2d 534, Hipsher contends LACERA is prohibited from modifying his pension benefits, no matter the malfeasance, without providing a "comparable new advantage."
Finally, the Board invites us to revisit the issue of whether it is subject to the provisions of the Interest Act. In support of the argument that it is not subject to the Interest Act, the Board relies upon the Third District's opinion in Bassett v. Pekin Police Pension Board, 362 Ill. App. 3d 235, 839 N.E.2d 130 (2005). In Fenton v. Board of Trustees, 203 Ill. App. 3d 714, 723, 561 N.E.2d 105 (1990), the court determined that a police pension as prescribed by statute is an instrument in writing subject to the provisions of section 2 of the Interest Act.