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Durica v. Commonwealth Edison Co.

Court of Appeals of Illinois, First District, First Division

March 30, 2015

JOSEPH DURICA and MARTA DURICA, Plaintiffs-Appellants,

As Corrected.

Appeal from the Circuit Court of Cook County. No. 12 CH 39283. Honorable Franklin U. Valderrama, Judge Presiding.

Goodman, Tovrov, Hardy & Johnson, LLC, Chicago, Illinois (Adam Goodman and Wesley Johnson, of counsel), for APPELLANT.

Exelon Business Services Co., Chicago, Illinois (Nicole Nocera, of counsel) for APPELLEE (Commonwealth Edison Company).

Grant & Fanning, Chicago, Illinois (Gary W. Fresen, of counsel), for APPELLEE (ABC Professional Tree Service, Inc.).

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.



Page 500

[¶1] Plaintiffs-appellants Joseph and Marta Durica (the Duricas) appeal from the circuit court's dismissal of their complaint pursuant to section 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2010)). The circuit court concluded that the Illinois Commerce Commission (ICC) had exclusive jurisdiction over the Duricas' claims against defendants-appellees Commonwealth Edison Company (ComEd) and ABC Professional Tree Services, Inc. (ABC). The sole issue on appeal is whether the court erred in dismissing the Duricas' complaint.


[¶3] The Duricas are owners of property in LaGrange Park, Illinois, which abuts railroad tracks often used by freight trains. ComEd is a public utility company that, pursuant to an easement,[1] owns and maintains electrical lines on the Duricas' property that runs alongside the railroad tracks.

[¶4] According to the Duricas, freight train traffic generates noise, dust, and unsightly views that interfere with their enjoyment of the property. To mitigate those problems, the Duricas grew vegetation on their property, including several 25-foot-tall pine trees. For many years, ComEd periodically trimmed these trees in order to prevent their interference with ComEd's power lines. That practice abruptly ended in September 2011, the Duricas claim, when ComEd decided to completely remove the Duricas' trees and those of other property owners.

[¶5] ComEd contracted with ABC to carry out the removal. According to the Duricas, on September 26, 2011, ABC asked Marta Durica for permission to remove the pine trees, but she refused. Nonetheless, the following day ABC proceeded to cut down the pine trees without authorization.

[¶6] On October 24, 2012, the Duricas filed a complaint in the circuit court, which pleaded a putative class action on behalf of property owners whose vegetation had been removed by ComEd and ABC. The complaint alleged that ComEd's tree removal violated section 8-505.1 of the Public Utilities Act, which requires that an electrical utility " [f]ollow the most current tree care and maintenance standard practices" set forth by the American National Standards Institute and requires the utility to provide notice to property owners about such " vegetation management activities." 220 ILCS 5/8-505.1(a)(1), (2) (West 2010). However, the complaint acknowledged that " [t]he Illinois Commerce Commission has exclusive jurisdiction to hear complaints of violations of" that section. Thus, the complaint specifically pleaded that the Duricas did not seek to recover damages for violation of section 8-505.1 of the Public Utilities Act, but alleged that " the Defendants' violation of that statute illustrates their blatant disregard for the rights of property owners."

Page 501

[¶7] Instead of seeking damages on the basis of the Public Utilities Act, the Duricas' complaint went on to plead three separate causes of action against ComEd and ABC. Count I asserted a claim of trespass, alleging that ABC, on behalf of ComEd, had entered the Duricas' property and removed trees without authorization. Count II asserted a claim for conversion, alleging that ABC on behalf of ComEd wrongfully assumed control, dominion, and ownership over the Duricas' trees. Finally, count III alleged that ABC and ComEd had violated the Wrongful Tree Cutting Act. See 740 ILCS 185/2 (West 2010) (" Any party found to have intentionally cut *** any timber or tree which he did not have the full legal right to cut or caused to be cut shall pay the owner of the timber or tree 3 times its stumpage value." ). The complaint's prayer for relief requested a judgment for damages on behalf of the purported class of property owners.

[¶8] On January 11, 2013, ComEd moved to dismiss the complaint on several grounds, only one of which is relevant to this appeal. Specifically, seeking dismissal pursuant to section 2-619(a)(1) of the Code of Civil Procedure, ComEd argued that only the ICC, not the circuit court, had subject matter jurisdiction over the Duricas' claims.[2] See 735 ILCS 5/2-619(a)(1) (West 2010). Notwithstanding the complaint's statement that the Duricas did not seek damages under section 8-505.1 of the Public Utilities Act, ComEd argued that the ICC's exclusive jurisdiction over the dispute was mandated by that statute's statement that " [t]he Commission shall have sole authority to investigate, issue, and hear complaints against the utility under this subsection (a)." 220 ILCS 5/8-505.1(a) (West 2010). ComEd argued that notwithstanding the Duricas' " artful pleading," the essence of the complaint was that " ComEd's vegetation management services were inadequate" in violation of section 8-505.1(a) and argued that only the ICC, not the court, could properly evaluate the adequacy of ComEd's vegetation management services.

[¶9] ComEd's motion also relied on our supreme court's decision in Sheffler v. Commonwealth Edison Co., 2011 IL 110166, 955 N.E.2d 1110, 353 Ill.Dec. 299, which held that the ICC had exclusive jurisdiction where plaintiffs sought " compensation for ComEd's allegedly inadequate service, which directly relates to the Commission's rate-setting functions for electrical power services." Id. ¶ 53. ComEd argued that the ICC likewise had exclusive jurisdiction to decide the adequacy of vegetation management services, which ComEd claimed were " inextricably intertwined with whether ComEd's facilities are safe and operating properly."

[¶10] The Duricas' response to the motion to dismiss argued that the ICC " does not have exclusive jurisdiction over everything that Com Ed does." The Duricas argued that, just as ICC would not have jurisdiction over " tort claims for car crashes ComEd causes or employee wage or discrimination claims brought against ComEd, it does not have jurisdiction over tort claims for ComEd's trespassing, conversion, or violations of the Illinois Tree Cutting Act." The Duricas contended that circuit court jurisdiction was supported by section 5-201 of the Public Utilities Act, which contemplates damage awards against a public utility for violation of the Public Utilities Act. 220 ILCS 5/5-201 (West 2010).

Page 502

[¶11] The Duricas further argued that the Sheffler decision did not mandate ICC jurisdiction, as that decision had recognized a distinction between claims for reparations that are subject to the exclusive jurisdiction of the ICC and claims for civil damages that may be heard in circuit court. The Duricas thus argued that the key question was whether their complaint sought " reparations" or civil damages, noting Sheffler 's statement that " a claim is for reparations when the essence of the claim is that a utility has charged too much for a service, while a claim is for civil damages when the essence of the complaint is that the utility has done something else to wrong the plaintiff." Sheffler, 2011 IL 110166, ¶ 42.

[¶12] The Duricas acknowledged that section 8-505.1(a) gave the ICC jurisdiction over allegations of failure to comply with tree maintenance standards or the specified notice provisions, but argued that " nothing in [section 8-505.1] suggests that no other cause of action can be brought on the same facts." In support, the Duricas cited the last paragraph of section 8-505.1, which states that the statute does not " diminish or ...

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