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Village of Evergreen Park v. Commonwealth Edison Co.

May 27, 1998

VILLAGE OF EVERGREEN PARK, A MUNICIPAL CORPORATION, INDIVIDUALLY AND ON BEHALF OF ALL OTHER MUNICIPAL CORPORATIONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
COMMONWEALTH EDISON COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LESTER D. FOREMAN, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Gordon

Plaintiff, Village of Evergreen Park (the Village), brought the instant class action lawsuit, seeking monetary and equitable relief against the defendant, Commonwealth Edison Company (Commonwealth Edison), alleging that the defendant, a public utility, had wrongfully collected money for lighting equipment and services. Pursuant to defendant's section 2-619 motion (735 ILCS 5/2-619 (West 1996), the trial court dismissed plaintiff's complaint for lack of subject matter jurisdiction. For the reasons discussed below, we affirm the dismissal of plaintiff's complaint.

The plaintiff's amended complaint alleged that, since approximately 1950, the Village had been a party to a contract with Commonwealth Edison whereby Commonwealth Edison agreed to furnish and the Village agreed to pay for municipal street lights under Tariff Rate 23, entitled Municipal Street Lighting, that Commonwealth Edison had filed with the Illinois Commerce Commission. The complaint further alleged that Rate 23 lights and brackets were mounted by Commonwealth Edison on wooden utility poles owned by Commonwealth Edison and that Commonwealth Edison retained ownership of and maintenance responsibility for the lights, brackets, fixtures and any other equipment. Pursuant to Rate 23, Commonwealth Edison issued a monthly bill to the Village for the equipment and electrical service charges for each Rate 23 light. The complaint alleged that, over time, the Village cancelled numerous Rate 23 street lights and that Commonwealth Edison correspondingly disconnected and removed the mounted light fixture and attendant equipment for which it was no longer entitled to collect a service charge.

The complaint alleged that in 1993 the Village conducted an audit of its utility billings which revealed that Commonwealth Edison had charged the Village, dating back to 1980, for certain Rate 23 municipal street lights that Commonwealth Edison had removed or had otherwise taken out of service. Commonwealth Edison agreed to reduce the Village's monthly Rate 23 lighting charge on a prospective basis but refused to reimburse the Village for erroneous charges that the Village had paid. The Village sought injunctive relief and recovery of those charges based upon theories of unjust enrichment, fraud, negligent misrepresentation, and violation of section 9-101 of the Public Utilities Act (220 ILCS 5/9-101 (West 1996)).

In its motion to dismiss the Village's amended complaint, Commonwealth Edison alleged that the court lacked subject matter jurisdiction. The motion and supporting memorandum argued that, in accordance with the Public Utilities Act (the Act) (220 ILCS 5/1-101 et seq. (West 1996)), the Illinois Commerce Commission had exclusive original jurisdiction over claims for refunds or overcharges. The trial court agreed, finding that the plaintiff's case was an overcharge case.

A motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure presents only a question of law, and review of a dismissal pursuant to that provision is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732 (1993); Intergovernmental Risk Management v. O'Donnell, Wicklund, Pigozzi & Peterson Architects, Inc., No. 1-96-1159 (March 4, 1998). The Public Utilities Act authorizes the Illinois Commerce Commission (Commission) to order a public utility to make reparation when the Commission determines that a public utility has charged an excessive or unjustly discriminatory amount for its service. In that regard, section 9-252 provides in pertinent part:

"When complaint is made to the Commission concerning any rate or other charge of any public utility and the Commission finds, 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 therefore, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount." 220 ILCS 5/9- 252 (West 1996).

With respect to refunds for overcharges, section 9-252.1 of the Act provides:

"When a customer pays a bill as submitted by a public utility and the billing is later found to be incorrect due to an error either in charging more than the published rate or in measuring the quantity or volume of service provided, the utility shall refund the overcharge with interest from the date of overpayment at the legal rate or at a rate prescribed by rule of the Commission. *** Any complaint relating to an incorrect billing must be filed with the Commission no more than 2 years after the date the customer first has knowledge of the incorrect billing." 220 ILCS 5/9-252.1 (West 1996).

The term "rate" is defined by the Public Utility Act to include:

"every individual or joint rate, fare, toll, charge, rental or other compensation of any public utility * * * and any rule, regulation, charge, practice or contract relating thereto." 220 ILCS 5/3-116 (West 1996).

In accordance with sections 9-252 and 9-252.1 of the Act, the Commission has exclusive jurisdiction over complaints of excessive rates or overcharges by public utilities; and courts have jurisdiction over those matters only on administrative review. E.g., Chicago ex rel. Thrasher v. Commonwealth Edison Co., 159 Ill. App. 3d 1076, 513 N.E.2d 460 (1987); Citizens Utilities Co. v. Illinois Commerce Comm'n, 157 Ill. App. 3d 201, 510 N.E.2d 52 (1987); Gowdey v. Commonwealth Edison Co., 37 Ill. App. 3d 140, 345 N.E.2d 785 (1976). See Terminal R. R. Ass'n v. Public Utilities Comm'n, 304 Ill. 312, 317, 136 N.E. 797, 799 (1922), stating:

"The evident intent and purpose of the Legislature in providing a method by which reparation may be recovered and in requiring that an application therefor shall be first made to the Commission precludes an action at law for such reparation until the Commission has heard a claim therefor."

The Commission's jurisdiction has been interpreted broadly since section 9-252 refers to rates or "other charge[s] of any public utility" (220 ILCS 5/9-252 (West 1996)). See Sutherland v. Illinois Bell, 254 Ill. App. 3d 983, 627 N.E.2d 145 (1993); Klopp v. Commonwealth Edison Co., 54 Ill. App. 3d 671, 370 N.E.2d 822 (1977); Malloy v. Illinois Bell Telephone Co., 12 Ill. App. 3d 483, 299 N.E.2d 517 (1973). If the plaintiff's action is not one for reparations under sections 9-252 or 9- 252.1, but rather seeks civil damages based upon a violation of other provisions of the Act or any rule, regulation, order or decision of the Commission, ...


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