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Klopp v. Commonwealth Edison Co.

OPINION FILED NOVEMBER 9, 1977.

ROBERT CHARLES KLOPP, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE. — ROBERT CHARLES KLOPP, PLAINTIFF-APPELLANT,

v.

THE PEOPLES GAS, LIGHT & COKE COMPANY, DEFENDANT-APPELLEE. — MARVIN ROZNER, PLAINTIFF-APPELLANT,

v.

NORTHERN ILLINOIS GAS COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. SHELDON BROWN, the Hon. FRANCIS T. DELANEY, and the Hon. DANIEL A. COVELLI, Judges, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Robert Charles Klopp and Marvin Rozner, purporting to represent themselves and all others similarly situated, filed separate suits seeking injunctive and monetary relief against the defendants, Commonwealth Edison Company, The Peoples Gas, Light & Coke Company and Northern Illinois Gas Company. The plaintiffs appeal from orders of judges of the circuit court of Cook County dismissing their respective amended complaints. The three class actions have been consolidated for this appeal.

The primary claim common to the three actions is that the delayed payment charge included in each defendant's rate schedule is in essence a charge for interest which is in excess of the maximum allowed under the Illinois Interest Statute. (Ill. Rev. Stat. 1975, ch. 74, par. 1 et seq.) In each instance, the trial court dismissed the complaint on the grounds that exclusive jurisdiction over the subject matter of the dispute was vested in the Illinois Commerce Commission (hereinafter the "I.C.C."), and because the delayed payment charge was not "interest" within the meaning of the interest state.

Each complaint also alleged violations of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 1 et seq.) and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, pars. 311-317). The trial judges dismissed these counts for their failure to state a cause of action. Plaintiffs, however, have not appealed the orders of dismissal as to these counts.

In his suit against Commonwealth, the plaintiff Klopp alleged that during 1973 and 1974 he had purchased and paid for electricity supplied by Commonwealth. During that period some of the bills tendered by Commonwealth were paid after the due dates indicated on the bills. As a result, plaintiff was assessed and subsequently paid an additional amount called a "delayed payment charge" in accordance with Commonwealth's schedule of rates for "General Service". The applicable portion of this schedule provides:

"Delayed payment charge.

A delayed payment charge determined in accordance with the formula set forth below shall be applied to the amount of any bill rendered. . . if such bill is not paid within the net payment period, the expiration date of which appears on the bill:

8% of the first $10.00 or less per month of any bill

5% of any additional amount."

Plaintiff Klopp alleged that these late charges were, in fact, interest and, as such, were in excess of the maximum allowable under the statute. Plaintiff prayed for an injunction against the continued collection of this delayed payment charge and also for double damages for the collection of usurious interest as permitted under the statute. Klopp specifically charged that the cause of action did not involve a claim for reparations pursuant to section 72 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 76). Under that provision, the I.C.C. has the exclusive jurisdiction to hear and determine claims that rates charged by a utility are excessive. Klopp also alleged that no adequate remedy at law existed which would prevent Commonwealth's continued collection of the late payment charge. He charged that the I.C.C. had no jurisdiction to hear claims and assess damages under the interest statute, and that the I.C.C. expressly had condoned the collection of this charge by Commonwealth.

Klopp pleaded substantially similar facts in his complaint against Peoples Gas as he had in the Commonwealth complaint. The allegations of Rozner's complaint against Northern Illinois were virtually identical to the other two complaints.

As we have noted, the three judges dismissed the complaints. This appeal follows.

We first consider the contention of all three defendants that the subject matter of the complaints rests within the exclusive jurisdiction of the I.C.C. If the trial judges were correct in so holding, we need not reach the issue of whether the delayed payment charges constituted interest.

Under section 60 of the Public Utilities Act (hereinafter the "P.U.A.") (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 64), the I.C.C. is empowered to conduct hearings concerning any matters relating to public utilities. Section 72 of that act authorizes the remedy of reparation to any customer who establishes that a utility has charged an excessive or unjustly discriminatory amount for its commodity or service. Where the claim relates to a rate charged by a utility, as defined by section 10-16 of P.U.A., this remedy consistently has been held to be exclusive. See Gowdey v. Commonwealth Edison Co. (1976), 37 Ill. App.3d 140, 345 N.E.2d ...


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