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08/21/87 the City of Chicago Ex Rel v. Commonwealth Edison

August 21, 1987

THE CITY OF CHICAGO EX REL. ROBERT L. THRASHER, PLAINTIFF-APPELLANT

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

513 N.E.2d 460, 159 Ill. App. 3d 1076, 112 Ill. Dec. 46 1987.IL.1212

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

This is an appeal from an order dismissing plaintiff's complaint. The circuit court found plaintiff to have standing but dismissed the complaint on the ground that he had failed to exhaust his administrative remedies in not initially filing his complaint before the Illinois Commerce Commission .

The issues presented for review are: (1) whether the circuit court properly found plaintiff's complaint to be within the exclusive jurisdiction of the ICC; (2) whether, assuming the circuit court did have jurisdiction, plaintiff's complaint is insufficient in law; (3) whether plaintiff has standing to bring this action; (4) whether most of plaintiff's claims are barred by the statute of limitations.

We affirm.

Defendant Commonwealth Edison (Edison) sells electricity to the city of Chicago for street lighting under a contract dated February 20, 1950, entitled "Electric Service Agreement" (contract). Plaintiff, a resident of the city, alleges that since 1950 Edison has overcharged the city for electricity supplied to the city under this contract. Specifically, plaintiff alleges that the method Edison has used to determine the quantities of electricity supplied is not in accordance with the terms of the contract.

Quantity determinations are specified in section 8 of the contract. Section 8 provides:

"The kilowatt hours supplied for street lighting service in any month at various points of delivery shall be added together to determine the number of kilowatthours to which the charges provided under section 6 shall be applied. In all cases such kilowatthours shall be determined on the basis of the delivery voltage. Where practicable, such determination shall be made by meters which shall be provided by Edison. Where metering is impracticable, the kilowatthours shall be determined on the basis of kilowatthours supplied at each point of delivery during a representative one-hour period, as estimated by Edison, or, at the request of the city, as determined by test, multiplied by the average monthly burning hours in a 12-month period . . .."

Most of the service provided under the contract is unmetered. Thus, kilowatt-hours must be estimated in accordance with the terms of the contract. The estimates are to "be based on the facilities in service at the beginning of the month." In his complaint plaintiff equated the term "facilities in service" with working streetlamps. He then asserted that there are always some burned-out bulbs and that Edison's estimates do not take this into account. Plaintiff also alleged that Edison's method of determining kilowatt-hours is violative of the Illinois Public Utilities Act (Act) (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 1 et seq.).

Edison moved to dismiss the complaint on the following grounds: (1) that the court lacked original jurisdiction over plaintiff's claim in that it constituted a claim for reparations; (2) that plaintiff lacked standing to bring this action because he did not meet the requirements of section 1-5-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 1-5-1); and (3) that the complaint was insufficient in law. On April 24, 1985, the circuit court found plaintiff to have standing but dismissed the complaint on the grounds that he failed to exhaust ...


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