Village of Evergreen Park v. Commonwealth Edison Co.

THIRD DIVISION
May 27, 1998

No. 1-97-1511

VILLAGE OF EVERGREEN PARK, )
a municipal corporation, )
individually and on behalf of all )
other municipal corporations ) APPEAL FROM THE CIRCUIT
similarly situated, ) COURT OF COOK COUNTY.
)
Plaintiff-Appellant, )
)
v. )
) HONORABLE LESTER D.
COMMONWEALTH EDISON COMPANY, ) FOREMAN, JUDGE PRESIDING.
an Illinois corporation, )
)
Defendant-Appellee. )

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

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,
then the circuit court has jurisdiction. 220 ILCS 5/5-201 (West
1996); Thrasher, 159 Ill. App. 3d 1076, 513 N.E.2d 460; Gowdey,
37 Ill. App. 3d 140, 345 N.E.2d 785.
In the instant case, the plaintiff concedes that the
Commission has exclusive jurisdiction over claims seeking
reparation for excessive charges (220 ILCS 5/9-252 (West 1996))
and for claims for refund for overcharges due to "error either in
charging more than the published rate or in measuring the
quantity or volume of service provided" (220 ILCS 5/9-252.1 (West
1996)). The plaintiff, in reliance primarily on Gowdey, 37 Ill.
App. 3d 140, 345 N.E.2d 785; Consumers Guild of America, Inc. v.
Illinois Bell Telephone Co., 103 Ill. App. 3d 959, 431 N.E.2d 1047 (1981); and Sutherland, 254 Ill. App. 3d 983, 627 N.E.2d 145, argues, however, that a claim that a utility is charging for
equipment or services that the customer did not contract to
purchase is not a claim for overcharge within the exclusive
jurisdiction of the Commission but is instead a claim for breach
of contract or misrepresentation that belongs in the circuit
court. The plaintiff argues that its claim, like the claims
brought in those cases, is a claim for breach of contract
premised on the defendant's violation of its agreement to charge
only for those Rate 23 lights that were in service. The
defendant, in reliance on Malloy, 12 Ill. App. 3d 483, 299 N.E.2d 517; Thrasher, 159 Ill. App. 3d 1076, 513 N.E.2d 460; Burke v.
Illinois Bell Telephone Co., 348 Ill. App. 529, 109 N.E.2d 358
(1952); and Cummings v. Commonwealth Edison Co., 64 Ill. App. 2d
320, 213 N.E.2d 18 (1965), argues that the plaintiff's claim
concerns rates and overcharges and the measurement of the
quantity or volume of service provided. The defendant argues
that the plaintiff is seeking relief in the form of a refund or
reparation such that its claim falls within the exclusive
jurisdiction of the Commission. For the reasons discussed below,
we agree with the defendant.
In Gowdey, 37 Ill. App. 3d 140, 345 N.E.2d 785, the
plaintiffs, who were customers of defendant Commonwealth Edison,
alleged that the defendant utility violated Commission and
judicial orders by failing to advise its customers that light
bulb service was optional. The plaintiffs sought recovery of
charges they paid for that service which they did not contract to
purchase. With respect to the issue of subject matter
jurisdiction, the court found the plaintiffs' action was for
civil damages under section 73 (now section 5-201) of the Act
rather than for reparations for an overcharge under section 72
(now sections 9-252 and 9-252.1) of the Act. In that regard the
court stated:
"We believe Section 72 is meant to grant the
Commission, which has exclusive authority for rate
making, an opportunity to first review any allegation
that a rate or charge set by the Commission is
excessive. In this action no such agency expertise in
rate making is necessary. The complaint is simply that
plaintiffs were charged for a service which they did
not contract to purchase." Gowdey, 37 Ill. App. 3d at
149, 345 N.E.2d at 793.
Similarly in Consumers Guild, 103 Ill. App. 3d 959, 431 N.E.2d 1047, the court found that the allegations in the
plaintiff's complaint did not challenge the rates charged and
thus did not invoke the jurisdiction of the Commission. In that
case, the plaintiff alleged that the defendant telephone company
had negligently misrepresented the type of telephone service
needed by the plaintiff. The court concluded:
"The plaintiff in the present case seeks to recover
damages incurred because of negligent
misrepresentations or the negligent performance of a
duty voluntarily assumed by the defendant's employee.
Thus the case sounds in tort and the claims 'are the
type of traditional claims within which our trial
courts of general jurisdiction are most familiar and
capable of dealing.' [Citation.] *** [T]he plaintiff
has repeatedly conceded the propriety of the rates
charged, and seeks damages not because of allegedly
excessive or discriminatory rates but because it was
misled by defendant's misrepresentations into using the
wrong type of service." Consumers Guild, 103 Ill. App.
3d at 964-65, 431 N.E.2d at 1051.
In reliance on Gowdey and Consumers Guild, the Sutherland court
also found that the circuit court had jurisdiction over
plaintiff's claims alleging that she was unlawfully charged for
inside wire service that was never ordered as well as for
defective telephones and improperly installed telephone jacks.
Sutherland, 254 Ill. App. 3d 983, 627 N.E.2d 145. The court
found that the plaintiff's claims did not concern rates or
charges set by the Commission which would require the
Commission's special expertise. Rather, according to the court,
the claims were ordinary breach of contract claims within the
conventional experience of trial courts. Sutherland, 254 Ill.
App. 3d at 993, 627 N.E.2d at 152.
Unlike in Gowdey and Sutherland, the plaintiff's claim in
the instant case is not one of contract formation and
misrepresentation and does not require inquiry into the nature of
the parties' bargain or, more specifically, whether the plaintiff
had contracted with the public utility to purchase certain
services. Also, unlike in Consumers Guild, plaintiff's claim
does not raise questions as to what representations or promises
were made by the public utility to the plaintiff and whether
those representations and promises of service were false. Here,
there is no question regarding the contractual relationship of
the plaintiff and the defendant nor is there any question
regarding the terms of their contract. As discussed above, it is
undisputed that the defendant agreed to provide and the plaintiff
agreed to pay for municipal street lights under Tariff Rate 23 at
the rates established under that tariff. The plaintiff's claim
deals with the application of those rates and the charges
incurred for lights cancelled by the plaintiff and disconnected
or taken out of service by the defendant. Plaintiff's claim
seeks recovery for overcharges based upon alleged errors by the
defendant in quantifying the number of lights in service.
Refunds for such overcharges are within the original jurisdiction
of the Commission pursuant to section 9-252.1 of the Act. 220
ILCS 5/9-252.1 (West 1996).
The plaintiff argues that questions of contract formation
exist in the instant case. Specifically, the plaintiff argues
that questions exist as to whether each light was the subject of
a separate contract. It contends that if each light was the
subject of a separate contract, then the Village's request to
remove the light terminated the contract thereby creating the
situations set forth in Gowdey v. Commonwealth Edison Co., 37
Ill. App. 3d 140, 345 N.E.2d 785 (1976) and Sutherland v.
Illinois Bell, 254 Ill. App. 3d 983, 627 N.E.2d 145 (1993),
wherein the plaintiffs were charged for services and equipment
that they did not contract to purchase. Initially, we note that
this argument was not raised in the court below and thus is
waived. See, e.g., Downes Swimming Pool, Inc. v. North Shore
National Bank, 124 Ill. App. 3d 457, 464 N.E.2d 761 (1984)
(issues presented by appellant on appeal are waived by failing to
raise them before the trial court). Moreover, even if we were to
reach this argument, we would reject it on its merits. Contrary
to the plaintiff's contentions, there is nothing in the language
of Tariff Rate 23, entitled "Municipal Street Lighting," to
support a finding that each light was the subject of a separate
contract. If anything, the language therein suggests that one
contract exists for the entire street lighting system of the
Village. It states that "the Company will furnish and operate
the necessary facilities to supply street lighting service ***
for the number of lighting units ordered by the Customer." It
states that the "charges for service supplied in any month shall
be determined on the basis of the number of lighting units and
other equipment in place at the beginning of the month." The
fact that Rate 23 establishes a charge per light does not lead to
the conclusion that a separate contract exists for each light.
Furthermore, with respect to cancellability, Rate 23 provides for
the cancellability of the "contract with respect to any lighting
unit served hereunder"; it does not provide for cancellability of
"each contract" for each lighting unit. These terms and others
suggest the existence of one contract to provide street lighting
services to the Village and that the monthly charge for that
service was to be based on "the number of lighting units and
other equipment in place at the beginning of the month."
The fact that the plaintiff labels its action a breach of
contract action is not dispositive nor does it transform
plaintiff's action into a civil action for damages (see 220 ILCS
9/5-201 (West 1996)).[fn1] See Malloy, 12 Ill. App. 3d at 485,
299 N.E.2d at 518, citing Cummings, 64 Ill. App. 2d 320, 323-24,
213 N.E.2d 18, 21. Irrespective of that label, it is apparent
that the plaintiff is seeking a refund of part of the charges it
paid the defendant and, consequently, plaintiff is alleging a
claim for reparations under sections 9-252 and 9-252.1 of the
Act.
Plaintiff's claim is similar to the claims brought in Malloy
and Thrasher wherein original jurisdiction was found to reside
with the Commission. In Malloy, the plaintiff, a telephone
subscriber, sought a refund for a six-day period during which her
service was interrupted. In finding that the ICC had original
jurisdiction the court stated, "Whatever the plaintiff may seek
to term the amount paid the defendant, that amount constituted a
'charge' or 'rate' within the meaning of section 72 [now sections
9-252 and 9-252.1] and her claim is for reparations within its
meaning as well." Malloy, 12 Ill. App. 3d at 485, 299 N.E.2d at
518. In reaching this conclusion, the court noted that
plaintiff's failure to seek a rate schedule revision or to fix
utility rates for the future "'would not bring this matter within
the powers of a court of equity and outside the exclusive
jurisdiction of the Illinois Commerce Commission.'" Malloy, 12
Ill. App. 3d at 485, 299 N.E.2d at 518, quoting Cummings, 64 Ill.
App. 2d 320, 323-24, 213 N.E.2d 18, 21 (1965).
The case of Chicago ex rel. Thrasher v. Commonwealth Edison
Co., 159 Ill. App. 3d 1076, 513 N.E.2d 460 (1987), is directly on
point. There, the plaintiff alleged that the defendant
overcharged the city for electricity supplied to the city for
street lighting pursuant to contract. The plaintiff alleged that
the method the defendant used to determine the quantities of
electricity was not in accordance with the terms of the contract.
Specifically, the plaintiff alleged that the defendant's
estimates of service did not take into account bulbs that were
burned out. In concluding that the ICC had original jurisdiction
over plaintiff's claim, the court stated:
"In determining whether an action is within the
exclusive jurisdiction of the ICC pursuant to section
72 [now sections 9-252 and 9-252.1] or within the
circuit court's jurisdiction pursuant to section 73
[now section 5-201], courts have consistently focused
on the nature of the relief sought rather than on the
plaintiff's basis for seeking the relief. [Citation.]
Where the essence of the claim is that a utility has
charged too much for the service provided, the claim is
for reparations. [Citation.] Where the essence of the
claim is not that too much has been charged for
service, but rather that the utility has done something
else which has wronged the plaintiff, the claim is for
ordinary damages. [Citation.] Here, the proper form
of relief, if any, is reparation under the Act."
Thrasher, 159 Ill. App. 3d at 1079-80, 513 N.E.2d at
462-63.
See also Burke v. Illinois Bell Telephone Co., 348 Ill. App. 529,
109 N.E.2d 358 (1952) (plaintiffs' complaint seeking refund for
utility's failure to publish directory for which they had paid is
claim for reparations).
Here, as in Thrasher, the plaintiff is contesting the manner
in which the public utility measured the quantity of the service
provided. Here, as in Thrasher, the plaintiff alleged that it
was charged for electrical services with respect to street lights
that were not operational. (In Thrasher, the bulbs in the street
lights were burned out, whereas in the instant case the street
lights had been removed.) The essence of both claims is that the
utility charged too much for the service it provided. Thus, as
in Thrasher, the claim in the instant case is within the
exclusive jurisdiction of the Illinois Commerce Commission.
For the foregoing reasons, the order of the Circuit Court of
Cook County dismissing plaintiff's action is affirmed.
Affirmed.
CAHILL and BURKE, JJ., concur.
[fn1]As noted earlier in this opinion, plaintiff's complaint
presented several theories of recovery including those sounding
in tort. It appears that the plaintiff has abandoned those
theories on appeal, since its sole argument on appeal is that the
"defendant wrongfully collected money for equipment and services
that plaintiff did not contract to receive and that defendant did
not provide." (Emphasis added.) Moreover, even if plaintiff
asserts that it sought civil damages based upon other substantive
legal theories, as discussed in the text of this opinion, no
matter how designated, plaintiff cannot escape the fact that it
is seeking a refund for overpayment of a "charge."