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Cummings v. Commonwealth Edison Co.

NOVEMBER 1, 1965.

OPAL CUMMINGS, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE,



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Affirmed.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 3, 1966.

Plaintiff, Opal Cummings, a customer of defendant, Commonwealth Edison Company, filed a class suit on behalf of all customers of Edison, alleging that rates charged by Edison for electricity service are and were excessive to the extent that its plant and property account includes excess sums paid by Edison for electrical equipment as a result of a conspiracy between electrical equipment manufacturers in violation of antitrust laws. The action seeks (1) the refund to such customers of monies repaid to Edison as the result of civil antitrust suits instituted by it in the federal courts to recover such overpayments between 1950 and 1961; (2) an accounting of other damages over and above these payments; and (3) a declaratory judgment to determine the legal rights of Edison's customers to such monies.

The circuit court sustained Edison's motion to dismiss for want of jurisdiction of the subject matter on the ground that the Illinois Commerce Commission had exclusive jurisdiction. Plaintiff appeals.

The events giving rise to this controversy began on November 1, 1959, when the Department of Justice ordered a series of grand jury investigations for the purpose of determining whether certain electrical equipment companies including General Electric, Westinghouse, and Allis-Chalmers among others, had violated the federal antitrust laws in connection with the manufacture and sale of such electrical equipment. After an indictment was returned on May 25, 1960, judgments of guilt were entered against such companies and a number of individual officers of some of the companies. Thereafter, on August 20, 1961, Edison, the defendant herein, filed a series of civil suits in the United States District Court for triple damages and other relief under the antitrust laws against General Electric, Westinghouse, Allis-Chalmers and numerous other companies from which it had purchased electrical equipment over a period of many years. Edison in such suits charged that these companies engaged in a series of conspiracies and combinations in unreasonable restraint of interstate trade and commerce in sales of electrical equipment to Edison commencing on or about January 1, 1950.

Plaintiff commenced this action in the circuit court on July 23, 1963 by filing a complaint which she amended from time to time on behalf of herself and all customers of Edison since January 1, 1950, alleging, inter alia, that the total payments between 1950 and 1960 by Edison to General Electric, Westinghouse and other electric equipment suppliers violating the antitrust laws for electrical equipment were substantially in excess of $150,000,000; that all such overcharges paid by Edison have been included by Edison in its property and plant account; that such property and plant account of Edison constitutes one of the principal factors upon which Edison's rates and charges from the plaintiff and other customers of Edison are now and have been for many years fixed and determined; and that all such damages have been assumed entirely by Edison's customers and none of such burdens have been assumed by Edison's shareholders. On January 13, 1964, plaintiff filed a motion for a temporary injunction seeking to impound $1,000,000 received or to be received by Edison from Westinghouse as part of a settlement agreement wherein Westinghouse agreed to pay Edison $5,000,000 as damages suffered by Edison due to sales of electrical equipment by Westinghouse to Edison in violation of the antitrust laws. This motion was withdrawn by plaintiff in open court on January 13, 1964.

On February 11, 1964, plaintiff filed an amended complaint. Defendant thereafter made a motion to dismiss the amended complaint which motion included an order of the Illinois Commerce Commission authorizing accounting adjustments due to Edison's settlements with Westinghouse and other companies. The amended complaint was superseded by the filing of an amended and supplemental complaint in which plaintiff incorporated her complaint and, additionally, alleged inter alia that Edison on February 4, 1964, filed a petition with the Commission requesting that it approve certain accounting adjustments with respect to amounts received or to be received from General Electric or other electrical equipment companies, and that Edison gave no notice thereof to its customers or to the circuit court, and that the Commission by its order on March 10, 1964, approved Edison's application for accounting adjustments in entirety without a public hearing; that the Commission's order ignored the claims of the Attorney General (in a petition filed by the Attorney General of the State of Illinois seeking to intervene in the federal antitrust proceedings) that the money should be refunded to Edison's customers; that in April, 1964 Edison and General Electric agreed to a settlement of Edison's claims against General Electric for $7,500,000 and that Edison had already disposed of the largest proportion of its antitrust suits; that Edison failed to exercise proper diligence and care in the purchase of such electrical equipment at rigged prices, and recklessly and intentionally misled plaintiff and other customers. Plaintiff's amendment to her amended and supplemental complaint alleged that Edison committed a fraud upon the circuit court by representing that Edison's customers were entitled to a hearing and then inducing the Commission to enter ex parte the order of March 10, 1964, and that Edison sought and obtained the order for the purpose of enabling it to retain such funds.

Edison again moved to strike and dismiss and, by order entered June 9, 1964, the circuit court dismissed the action for want of jurisdiction of the subject matter. Appeal is taken from this order.

Plaintiff contends that the trial court decree should be reversed on the grounds that her complaint does not involve the Commission's rate making functions and that the issues are within the exclusive jurisdiction of the equity courts and beyond the powers of the Commission.

It is well established that the common law right to recover reparations for unreasonable charges by public utilities has been superseded by the Public Utilities Act. See Terminal R. Ass'n of St. Louis v. Public Utilities Commission, 304 Ill. 312, 317, 136 N.E. 797 (1922). The question remains whether plaintiff is, in effect, bringing such an action.

In affirming the denial of the motion of the Attorney General of Illinois to intervene on behalf of the consumers of Illinois in Edison's federal suit, Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F.2d 564, 567 (1963), the United States Court of Appeals for the Seventh Circuit said:

The consumers' rights, if any, to reparation for their consequential hurt arise from higher rates and charges for services provided by plaintiffs. . . . The impact on them was remote and took the shape of allegedly higher rates paid for utility services — rates established as legal by the Illinois Commerce Commission.

It is apparent that the sole basis for plaintiff's claim, irrespective of the label she chooses to employ, is that she and other customers were charged excessive rates for which she wants reparations. The fact that plaintiff does not seek to upset a rate schedule or fix utility rates for the future does not bring this matter within the powers of a court of equity and outside the exclusive jurisdiction of the Illinois Commerce Commission. The case of Alton Brick Co. v. Alton Water Co., 42 Ill. App.2d 451, 192 N.E.2d 599 (1963), involved a suit to recover for excessive charges by the defendant water company. The water company, after having its rates held by the Commission to be illegally high, posted a supersedeas bond and continued to charge the high rate while the matter was up for rehearing and appeal. The plaintiff there contended that she had a right to a common law action for a refund as well as an action on the bond. The defendant, as in the instant case, relied upon section 72 of the Public Utilities Act which provides that:

When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of ...


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