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07/15/88 Brandt Truck Line, Inc., v. the Illinois Commerce

July 15, 1988

BRANDT TRUCK LINE, INC., ET AL., PLAINTIFFS-APPELLANTS

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

527 N.E.2d 464, 173 Ill. App. 3d 209, 123 Ill. Dec. 1 1988.IL.1108

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiffs, Brandt Truck Lines, Inc., Burren Transfer Co., Holland Motor Express, Inc., and Rudolph Express Co., appeal from an order of the circuit court of Cook County affirming two orders *fn1 of the Illinois Commerce Commission (Commission) (1) granting defendant Campbell Sixty-Six Express, Inc.'s (Campbell's) *fn2 application to conduct operations as a common carrier by motor vehicle between all points within Illinois and (2) the Commission's order denying their petition to reopen the proceeding and to rescind its order granting Campbell's application. On appeal, plaintiffs contend that the orders of the Commission are against the manifest weight of the evidence, the Commission's orders are an abuse of its discretion, and the Commission violated plaintiffs' due process rights in issuing a common carrier certificate to Campbell prior to Disposition of their petition for rehearing. *fn3 For the reasons set forth below, we reverse and remand the cause for further proceedings.

The pertinent facts are as follows. On April 23, 1985, Campbell filed an application with the Commission for a certificate to operate as a common carrier transporting general commodities, with exceptions, between all points within Illinois pursuant to section 18-301 of the Illinois Motor Carrier of Property Act (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 18-301). *fn4 Petitions to intervene were filed by plaintiffs and granted by the Commission. Hearings on Campbell's application were held on August 5, September 12, and November 26, 1985. Evidence was presented on behalf of Campbell's application; six shipper witnesses testified that there was a need for Campbell's services (because, for example, current shippers' services were inadequate). Additionally evidence was presented concerning Campbell's financial fitness to furnish services under the certificate. *fn5 On the other hand, plaintiffs argued that there was no need for Campbell's services to warrant a grant to Campbell to operate statewide.

On February 20, 1986, the Commission granted Campbell's application. On March 19, 1986, plaintiffs filed a motion for rehearing of the Commission's order. Before Disposition of the motion, and in fact prior to the filing of the motion and without notice to plaintiffs, the Commission, on March 11, issued a certificate to Campbell to operate as a motor carrier. On April 2, the Commission denied plaintiffs' motion for rehearing, affirming its February 20 order granting Campbell's application; plaintiffs received notice of the Commission's denial of their motion on April 9 and only then became aware of the fact that the Commission had issued a certificate to Campbell on March 11.

On April 16, plaintiffs filed a petition to reopen *fn6 the original proceeding pursuant to section 18c-2110(2) of the Commercial Transportation Law (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 18c-2110(2)) and to rescind the Commission order of February 20 granting Campbell's application based upon their claim that on April 11 they became aware of the fact that Campbell "had ceased operations and gone bankrupt" and, therefore, was not financially fit to perform under the certificate. In fact, Campbell filed for bankruptcy on April 14. In response, Campbell stated that notwithstanding its bankruptcy proceeding, the "findings of the Commission order entered in the instant docket were correct and supported by evidence in the record." It further stated that "[as] a practical matter applicant, through a trustee in bankruptcy, will either have to petition for a suspension of operating authority or for a sale of the authority and temporary authority to operate pending the transfer proceeding. The procedure outlined above is quite common and happens all the time."

While plaintiffs' motion to reopen was pending before the Commission, on May 5 they filed a petition for review in the circuit court of Cook County of the Commission orders granting Campbell's application and denying their motion for rehearing. On May 14, the Commission denied plaintiffs' motion to reopen, stating only that "the Commission in conference on May 14, 1985 DENIED the Motion to Reopen" filed by plaintiffs. On October 10, stay of the circuit court action, upon proper motion, was entered pursuant to section 362(a) of the Bankruptcy Code (11 U.S.C. § 362(a) (1979)). On November 25, the bankruptcy court modified the stay order "to allow the Administrative Review Proceeding to continue to a final adjudication of the order of the Illinois Commercial Commission granting the Debtor's [Campbell's] application." (Emphasis added.) On December 15, the trial court granted plaintiffs leave to incorporate their motion to reopen as part of the instant record. After a subsequent bench trial, the court entered judgment for the Commission on May 13, 1987, and this appeal followed.

We find resolution of plaintiffs' due process argument dispositive of this matter. Plaintiffs first contend that this issue is properly before this court pursuant to sections 18c-2202(1)(e) and (2)(c) of the Commercial Transportation Law (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 18c-2202(1)(e), (2)(c)), i.e., a reviewing court may consider issues raised asserting denial of a party's constitutional rights and evidence of procedural irregularities which could not, with reasonable diligence, have been offered, either at the administrative hearing or in a motion for reconsideration or rehearing. Defendants assert that because plaintiffs did not raise these issues in their motion for rehearing or their later motion to reopen, they are not properly before this court.

We observe, as argued by plaintiffs, that these issues were not raised in their rehearing motion because at the time they filed it, and in fact before they filed it, they were unaware that the Commission had already issued a certificate to Campbell. We further observe that notwithstanding the fact that plaintiffs also did not raise these issues in their motion to reopen, the issues were nonetheless argued in the trial court, although not with the same specificity here, and therefore were properly preserved for review as part of the record before us. See Cibis v. Hunt (1964), 48 Ill. App. 2d 487, 199 N.E.2d 246.

Plaintiffs also base their due process argument on their interpretation of section 18c -- 2110(1) of the Commercial Transportation Law, which provides for the filing of a rehearing motion. That section states, in pertinent part, as follows:

"Any party of record to an administrative proceeding before the Commission may file a motion requesting modification or recission of a Commission . . . order. . . . The motion must be filed within 30 days after service of the order, unless the time for filing a motion is extended by the Commission in writing. . . . The Commission may grant or deny such motions, in whole or in part. If the Commission grants such a motion a new order shall be issued within 180 days after service of the order granting the motion unless the order granting the motion also disposed of the issues in the proceeding and is therefore a final, appealable order. If the Commission fails to act on any such motion within 45 days after it is filed, or up to 90 days if the period for acting on the ...


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