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Dvorkin v. Illinois Bell Telephone Co.

NOVEMBER 20, 1975.

SOL I. DVORKIN ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS BELL TELEPHONE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Sol I. Dvorkin, individually and on behalf of a class, commenced an original action in the circuit court of Cook County for damages against defendants Illinois Bell Telephone Company and American Telephone and Telegraph Company. The trial court granted the motion of Illinois Bell to strike the complaint and dismiss the suit for want of jurisdiction. Plaintiff appeals.

The sole issue for review is whether the instant complaint states a cause of action which may be commenced originally in the circuit court. We affirm.

The complaint filed on April 28, 1972, by plaintiff on his own behalf and on behalf of a class consisting of persons and corporations who have been subscribers, lessees, patrons and customers of Illinois Bell from the date the company first began the practice complained of was in two counts. Count I alleged that Illinois Bell had a policy and practice of providing services for the personal use of certain current, former and retired officers, directors, and employees of Illinois Bell either without charge or at less than the rate established and in force as shown by the schedule filed with the Illinois Commerce Commission, all in contravention and violation of sections 37, 38 and 39 of the Illinois Public Utilities Act (Ill. Rev. Stat. 1971, ch. 111 2/3, pars. 37, 38 and 39); that as a direct result of the loss of revenue, plaintiff and the class are required to pay greater rates for services from Illinois Bell; and prayed that the practice be declared unlawful and enjoined; and that judgment be entered against Illinois Bell for the lost revenue and punitive damages for the use and benefit of the class, and other relief. Count II alleged that the illegal actions were with the knowledge, control, management, connivance and complicity of American Telephone by reason of its ownership of 99 percent of the stock of Illinois Bell, and prayed judgment against American Telephone for the losses and punitive damages to be paid to Illinois Bell for the use and benefit of plaintiff and the class, together with other relief.

Section 37 of the Utilities Act prohibited a public utility from charging greater or less or different compensation than the rates specified in its schedules on file and in effect at the time "except such as are regularly and uniformly extended to all corporations and persons." An amendment effective October 1, 1972 (P.A. 77-2759), added a sentence: "No law of the State shall be construed to prohibit a public utility from furnishing its service, product or commodity to its employees, officers, directors or pensioners, or its employees, officers, directors or pensioners from receiving such service, product or commodity, free or at rates or charges less than those specified in its filed schedules." Ill. Rev. Stat. 1973, ch. 111 2/3, par. 37.

Section 38 of the Act prohibits the granting of any preference or advantage and the establishment or maintenance of "any unreasonable difference as to rates or other charges, services, facilities, or in any other respect, either as between localities or as between classes of service." Section 39 further prohibits any utility, its officer, agents and employees, from directly or indirectly permitting any corporation or person "to obtain any service, commodity, or product at less than the rate or other charge then established and in force as shown by the schedules filed and in effect at the time." Ill. Rev. Stat. 1971, ch. 111 2/3, pars. 38 and 39.

The trial court, in the order granting Illinois Bell's motion to strike, found that the alleged discrimination is "necessarily so intertwined with establishment of rates or tariffs as to constitute rates or tariffs issue, rather than a question of discrimination per se," and that the exclusive jurisdiction for establishing rates and tariffs and for the recovery of refunds or reparation for allegedly excessive charges is in the Illinois Commerce Commission. Since no ruling was made as to American Telephone, nor was the amendment to section 37 challenged in the trial court, neither will be considered.

Plaintiff contends that in accordance with section 73 of the Illinois Public Utilities Act (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 77), a civil action may be commenced in any court of competent jurisdiction for the violation by a public utility of sections 37, 38 and 39 of the Act. Further, that the remedy is cumulative under the provisions of section 72 and 74 (pars. 76 and 78). Defendant Illinois Bell, on the other hand, contends that the complaint states a claim for the recovery of refunds as reparation and is governed by section 72 (par. 76) of the Act, and that the exclusive jurisdiction for such recovery is vested in the Illinois Commerce Commission. The pertinent provisions of sections 72, 73 and 74 follow:

"§ 72. 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 payment of such excessive or unjustly discriminatory amount.

The remedy provided in this section shall be cumulative, and in addition to any other remedy or remedies in this Act provided in case of failure of a public utility to obey a rule, regulation, order or decision of the Commission. [Par. 76.]

§ 73. In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.

No recovery as in this section provided shall in any manner affect a recovery by the State of the penalties in this Act provided. [Par. 77.]

§ 74. This Act shall not have the effect to release or waive any right of action by the State, the Commission, or by any body politic, municipal corporation, person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under any law of this State.

All penalties accruing under this Act shall be cumulative of each other, and suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution against any public utility, or any officer, director, ...


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