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L.s. Heath & Sons, Inc. v. Marathon Oil

OPINION FILED DECEMBER 29, 1977.

L.S. HEATH AND SONS, INC., PETITIONER-APPELLANT,

v.

MARATHON OIL COMPANY, RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of Crawford County; the Hon. HARRY L. ZIEGLER, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by L.S. Heath & Sons, Inc. (Heath), from a final order entered by the circuit court of Crawford County denying Heath's petition to intervene in an appeal by Marathon Oil Co. (Marathon) from an order of the Illinois Commerce Commission (Commission). Heath raises three issues on review: (1) whether it was automatically a party to the appeal of the order of the Commission by virtue of its earlier participation in the proceedings before the Commission; (2) whether sections 67 and 68 of an "Act in relation to public utilities" (hereinafter Public Utilities Act) (Ill. Rev. Stat. 1975, ch. 111 2/3, pars. 71, 72) prohibit Heath's intervention in the appeal; and (3) whether Heath should be allowed to intervene in the appeal pursuant to section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26.1).

The instant appeal arises from the following facts. On December 9, 1975, Gas Utilities Company (Gas Utilities) filed with the Commission a proposed plan for the curtailment of its natural gas service. The plan was a consequence of curtailments in pipeline deliveries to Gas Utilities by its supplier. Under the proposed plan all interruptible gas service would be curtailed first and, if further curtailments were necessary, gas service to Gas Utilities' six largest customers would be then curtailed on a pro rata basis. Among the six largest customers were Marathon and Heath who, along with others, filed petitions to intervene with the Commission. The petitions were allowed and hearings were had. The evidence showed that Marathon was Gas Utilities' largest volume customer accounting for over 70% of the natural gas sales made in 1974. Of the gas purchased by Marathon, 62% of it was used as feedstock in a hydrogen plant and the remaining 38% was used as fuel for the plant. Marathon offered the Commission an alternative curtailment plan which was more favorable to Marathon than the one proposed by Gas Utilities. On the other hand, Heath, a candy manufacturer, was not a large volume industrial customer but had been classified as a "general service" customer. Heath argued that it should be exempt from any curtailment plan.

Following the hearings the Commission entered an order requiring Gas Utilities to file a three-step curtailment plan. The first step would involve curtailing that portion of Marathon's gas service used as fuel for the hydrogen plant. The next step would involve, if necessary, curtailing that gas used by Marathon as feedstock and all gas used by Gas Utilities' other nongeneral service customers (which group did not include Heath). The final step, if necessary, would involve curtailing gas usage by all of Gas Utilities' remaining customers.

Marathon filed an application for a rehearing and reconsideration with the Commission raising certain objections to the ordered curtailment plan. The Commission denied the application and thereafter Marathon filed a notice of appeal from the Commission's order in the circuit court. Heath, in turn, filed a petition to intervene in the appeal in support of the Commission's order and in opposition to the objections of Marathon. Marathon moved to strike Heath's petition to intervene and following a hearing, the lower court entered an order denying Heath's petition upon a finding that Heath failed to properly perfect an appeal pursuant to section 68 of the Public Utilities Act. The court further found no just reason to delay enforcement or an appeal of the order.

• 1 In this appeal from the lower court's denial of Heath's petition to intervene, Heath first contends, citing Cuny v. Annunzio, 411 Ill. 613, 104 N.E.2d 780, that it was a necessary party to the appeal from the Commission's order because it was a party of record to the proceedings before the Commission. On this basis Heath concludes that it "automatically" became a party to the appeal below. While it is unclear by what manner Heath claims that it automatically became a party to the appeal, we find, in any event, Cuny v. Annunzio to be distinguishable from the instant cause. In Cuny the court dismissed an action for administrative review because of the failure of the appellants to have joined two necessary parties as defendants in the action for review. The holding in Cuny was based on section 8 of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 271), which states:

"In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants."

However, section 2 of that Act (Ill. Rev. Stat. 1975, ch. 110, par. 265) provides in part:

"This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. * * *"

Since the Public Utilities Act does not expressly adopt the provisions of the Administrative Review Act, section 8 thereof underlying Cuny is inapplicable to the instant cause.

• 2 Turning to the Public Utilities Act, this act itself sets forth certain provisions for a review of an order of the Commission. Section 67 thereof provides that within a certain period following the service of any rule, regulation, order or decision of the Commission, any party to the action or proceeding may apply for a rehearing of the matter determined. The section further states:

"* * * No appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and finally disposed of by the Commission * * *. No person or corporation in any appeal shall urge or rely upon any grounds not set forth in such application for a rehearing before the Commission. * * *" (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 71.)

Section 68 of the Act provides in part that:

"* * * No circuit court shall permit a party affected by any rule, regulation, order or decision of the Commission to intervene or become a party plaintiff or appellant in such court who has not taken an appeal from such rule, regulation, order or decision in the ...


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