                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




             Thomas v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102868




Appellate Court            SHEILA THOMAS, Individually and on Behalf of All Others Similarly
Caption                    Situated, Plaintiff-Appellant, v. PEOPLES GAS LIGHT AND COKE
                           COMPANY, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-10-2868


Filed                      September 30, 2011
Rehearing denied           November 15, 2011
Held                       A class action alleging that defendant gas company was attempting to
(Note: This syllabus       force the payment of debts that had been discharged in bankruptcy was
constitutes no part of     improperly dismissed on the ground that the Illinois Commerce
the opinion of the court   Commission had exclusive jurisdiction.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-27734; the
Review                     Hon. Rita M. Novak, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Consumer Advocacy Center, P.C., of Chicago (Lance A. Raphael, Stacy
Appeal                     M. Bardo, and Allison Krumhorn, of counsel), for appellant.

                           Foley & Lardner, LLP, of Chicago (Michael M. Conway and Thomas C.
                           Hardy, of counsel), for appellee.


Panel                      PRESIDING JUSTICE STEELE delivered the judgment of the court,
                           with opinion.
                           Justices Neville and Salone concurred in the judgment and opinion.



                                            OPINION

¶1          Plaintiff, Sheila Thomas, appeals an order of the circuit court of Cook County dismissing
        her putative class action lawsuit against defendant, Peoples Gas Light & Coke Company
        (Peoples Gas), on the ground that the Illinois Commerce Commission (Commission) had
        exclusive jurisdiction over Thomas’s claims that Peoples Gas was attempting to force
        payment of debts Thomas discharged in bankruptcy. For the following reasons, we reverse
        the decision of the circuit court and remand the case for further proceedings.

¶2                                        BACKGROUND
¶3           On August 10, 2009, Thomas filed a class action complaint containing the following
        allegations. Thomas is 60 years old and collects disability benefits. In May 2000, Thomas
        filed for bankruptcy; a debt she owed to Peoples Gas was discharged in the proceeding.
        Peoples Gas continued to attempt to collect the debt, turned off Thomas’s gas, and refused
        to reactivate her account for several winters.
¶4           Thomas alleged that in 2004, Thomas again tried to reactivate her account. Peoples Gas
        informed Thomas she would have to pay $5,158.20, due to her past account, to reactivate
        service. Thomas notified Peoples Gas of the bankruptcy and sent a notice of the discharge
        of the debt by facsimile to Peoples Gas. However, Peoples Gas did not reactivate her account
        in the winter of 2004. Between the winter of 2004 and 2006, Thomas repeatedly tried to have
        Peoples Gas restore her service, to no avail. In February 2006, Peoples Gas demanded
        $8,984.92 to reinstate her account.
¶5           Thomas alleged that in the summer of 2006, she filed a complaint about the matter with
        the office of the Illinois Attorney General. Peoples Gas subsequently activated Thomas’s
        account, providing her with heat, hot water and cooking gas. In June 2008, Peoples Gas again
        deactivated Thomas’s gas service. Peoples Gas demanded $8,519.61 to reinstate the account
        and referred her account to a debt collector.
¶6           Moreover, Thomas alleged, on information and belief, that the accounting system

                                                 -2-
       adopted by Peoples Gas in 2006 prevents employees from distinguishing amounts
       legitimately owed from debts discharged in bankruptcy proceedings.
¶7         Count I of Thomas’s complaint, purportedly brought on behalf of a class of persons who
       have been the subject of debt collection activity by Peoples Gas since 2006 regarding
       amounts discharged in bankruptcy, alleged Peoples Gas violated the Illinois Consumer Fraud
       and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 et seq. (West
       2004)) and violated public policy by attempting to collect debts discharged in bankruptcy.
       Count II of the complaint alleged intentional infliction of emotional distress.
¶8         On October 8, 2009, Peoples Gas filed a motion to dismiss Thomas’s complaint pursuant
       to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West
       2008)). Peoples Gas argued the Commission had exclusive jurisdiction over Thomas’s
       claims. Peoples Gas also argued Thomas released any claims based on events prior to
       December 22, 2006, when Thomas executed a release settling any claims she had against
       Peoples Gas for $1,600.
¶9         On December 30, 2009, Thomas responded to the motion to dismiss. Thomas argued that
       the circuit court had general jurisdiction over her claims. Thomas acknowledged her release
       of claims against Peoples Gas, but argued the release did not apply to any claims arising after
       December 22, 2006.
¶ 10       On April 16, 2010, following briefing and a hearing on the matter, the circuit court
       granted the motion to dismiss, concluding the Commission had exclusive jurisdiction over
       Thomas’s claims. On May 17, 2010, Thomas filed a motion to reconsider. Thomas, in
       addition to rearguing points raised in her opposition to the motion to dismiss, informed the
       circuit court she had filed an informal complaint with the Commission, which was denied.
       On August 25, 2010, following briefing and a hearing on the matter, the circuit court denied
       the motion to reconsider. On September 23, 2010, Thomas filed a timely notice of appeal
       with this court.

¶ 11                                       DISCUSSION
¶ 12       On appeal, Thomas argues the circuit court erred in dismissing her complaint on the
       ground the Commission had exclusive jurisdiction over Thomas’s claims. When resolving
       motions to dismiss, we accept as true all well-pled factual allegations. Morris v. Illinois
       Central R.R. Co., 382 Ill. App. 3d 884, 886 (2008). This court reviews decisions granting
       motions to dismiss pursuant to section 2-619 of the Code de novo. Sheffler v. Commonwealth
       Edison Co., 2011 IL 110166, ¶ 23.
¶ 13       The Commission’s exclusive jurisdiction over rates and other charges for public utility
       services is set forth in section 9-252 of the Public Utilities Act (Act), which provides:
              “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 therefor, with interest at the legal rate from the date of payment of
              such excessive or unjustly discriminatory amount.

                                                 -3-
                    ***
                    All complaints for the recovery of damages shall be filed with the Commission
                within 2 years from the time the produce [sic], commodity or service as to which
                complaint is made was furnished or performed, and a petition for the enforcement of
                an order of the Commission for the payment of money shall be filed in the proper
                court within one year from the date of the order ***.” 220 ILCS 5/9-252 (West
                2008).
       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.’ ” Sheffler, 2011 IL 110166, ¶ 41 (quoting Terminal R.R. Ass’n of St.
       Louis v. Public Utilities Comm’n, 304 Ill. 312, 317 (1922)).
¶ 14        In contrast to the Commission’s jurisdiction, the jurisdiction of the circuit courts is set
       forth in section 5-201 of the Act, which states:
                “In case any public utility shall do, cause to be done or permit to be done any act,
                matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do
                any act, matter or thing required to be done either by any provisions of this Act or any
                rule, regulation, order or decision of the Commission, issued under authority of this
                Act, the public utility shall be liable to the persons or corporations affected thereby
                for all loss, damages or injury caused thereby or resulting therefrom, and if the court
                shall find that the act or omission was wilful, the court may in addition to the actual
                damages, award damages for the sake of example and by the way of punishment. An
                action to recover for such loss, damage or injury may be brought in the circuit court
                by any person or corporation.” 220 ILCS 5/5-201 (West 2008).
¶ 15        Accordingly, if a claim is for reparations, jurisdiction rests with the Commission, while
       jurisdiction of an action for civil damages lies in the circuit court. Sheffler, 2011 IL 110166,
       ¶ 42 (citing Sheffler v. Commonwealth Edison Co., 399 Ill. App. 3d 51, 68 (2010)). A claim
       for reparations exists when the essence of the claim is that a utility has overcharged for a
       service. Alternatively, a claim for civil damages exists when the essence of the complaint is
       that the utility has engaged in other conduct to wrong the plaintiff. Id. (citing Fluornoy v.
       Ameritech, 351 Ill. App. 3d 583, 585 (2004)).
¶ 16        Thomas characterizes her complaint as a suit for civil damages properly brought in the
       circuit court pursuant to section 5-201. Relying on Village of Deerfield v. Commonwealth
       Edison Co., 399 Ill. App. 3d 84, 87 (2009), Thomas argues the circuit court has jurisdiction
       over claims “not pertaining to excessive or unjustly discriminatory rates.” However, in
       Sheffler, the Illinois Supreme Court discussed Village of Deerfield and concluded the
       Commission’s jurisdiction is determined by the nature of the relief sought, not the claims or
       type of the damages requested. See Sheffler, 2011 IL 110166, ¶ 50. The Sheffler court also
       ruled that Village of Deerfield erred in narrowly interpreting reparations as limited to claims
       of excessive or discriminatory rates, concluding that complaints about the adequacy of a
       utility’s service also fall within the scope of reparations claims. Id. at ¶¶ 54-56. The Sheffler
       court reasoned that adequacy of service is necessarily tied to rates and both subjects are the


                                                 -4-
       focus of the Commission’s regulatory scheme. Id.
¶ 17        In short, Sheffler establishes that the Commission’s jurisdiction is not as strictly tied to
       rate-setting as Thomas argues. On the other hand, Sheffler is distinguishable from this case,
       which does not challenge the adequacy of Peoples Gas’s infrastructure or services.
       Accordingly, the remaining question is whether the essence of Thomas’s claim is that
       Peoples Gas has overcharged for its service or whether the claim is that Peoples Gas has
       done something else to wrong Thomas. A review of our case law on the distinction is
       instructive.
¶ 18        Our court’s decision in Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill.
       App. 3d 810 (1998), discusses an example of a reparations claim. In that case, the village
       sued Commonwealth Edison (ComEd) for monetary and equitable relief, alleging that
       ComEd had wrongfully collected money for lighting equipment and services that were not
       provided. Specifically, the village alleged ComEd had charged it for electricity provided to
       streetlights that no longer existed and sought reimbursement of the monies paid to ComEd
       for those charges. Id. at 812. The circuit court dismissed the village’s complaint for lack of
       jurisdiction, finding the Commission possessed exclusive original jurisdiction over claims
       for refunds or overcharges. Id. at 812-13.
¶ 19        On appeal, the village argued that its complaint alleged that its breach of contract claim
       against ComEd in charging for services not provided in ComEd’s tariff was properly filed
       in the circuit court. Id. at 814. This court discussed the nonreparations cases the village cited:
       Sutherland v. Illinois Bell, 254 Ill. App. 3d 983, 985 (1993), in which the plaintiff claimed
       the telephone utility company charged for an “ ‘inside wire service’ ” that was never ordered,
       provided, or removed from her bill upon request; Consumers Guild of America, Inc. v.
       Illinois Bell Telephone Co., 103 Ill. App. 3d 959, 960 (1981), in which the utility allegedly
       misrepresented consultant services sold to the plaintiff; and Gowdey v. Commonwealth
       Edison Co., 37 Ill. App. 3d 140, 142 (1976), in which ComEd allegedly fraudulently charged
       customers for light bulbs. Village of Evergreen Park, 296 Ill. App. 3d at 813-16. The Village
       of Evergreen Park court distinguished the cases cited as involving questions of contract
       formation or misrepresentation. Id. at 815-16. This court affirmed the dismissal of the
       village’s complaint, stating 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.” Id. at 816-17. The essence of the village’s claim was that ComEd “charged too
       much for the service it provided”; thus, the claim fell within the exclusive jurisdiction of the
       Commission. Id. at 818.
¶ 20        In contrast, Flournoy v. Ameritech, 351 Ill. App. 3d 583 (2004), is an example of a civil
       claim that falls within the jurisdiction of the circuit court. In Fluornoy, an inmate at the Joliet
       Correctional Center sued Ameritech, alleging the company deliberately terminated his collect
       calls shortly after they were accepted. Id. at 584. Under the applicable fee structure, anyone
       who accepted a collect call was subject to an initial fee. Id. Ameritech’s alleged practice
       forced the plaintiff to make subsequent calls, which were again subject to the initial fee. Id.
       Fluornoy’s complaint alleged Ameritech fraudulently collected multiple charges and was
       negligent in operating a telephone system that prematurely terminated telephone calls and
       resulted in multiple charges. The circuit court dismissed the complaint. Id. at 585.

                                                  -5-
¶ 21        On appeal, the Flournoy court found that the plaintiff’s claim fell within the circuit
       court’s jurisdiction, explaining the plaintiff did not “contest the actual rates charged as
       surcharges and initial calling fees, or claim those rates [were] excessive.” Id. at 586. Rather,
       the “claim [was] that Ameritech collected the charges multiple times due to its practice of
       prematurely terminating his collect calls.” Id. at 586. As such, Flournoy is a case where the
       plaintiff alleged the utility did something to wrong him, rather than assert a mere overcharge.
¶ 22        Here, Peoples Gas argues Thomas’s claim essentially involves an overcharge. The circuit
       court agreed, concluding the case involved nothing more than the determination of whether
       Thomas’s gas service was properly cut off. However, similar to the multiple charges at issue
       in Flournoy and the improper charges alleged in Sutherland, Thomas claims Peoples Gas is
       unlawfully attempting to collect a debt already discharged in federal bankruptcy proceedings.
       Thomas does not allege an overcharge; she alleges an unlawful charge. Unlike the negligence
       claims in Sheffler, Peoples Gas’s allegedly unlawful attempt to collect a debt, either as a
       condition of restoring service or through a debt collector, has nothing to do with the ultilty’s
       infrastructure, adequacy of service, or rate structure. The issue of whether Peoples Gas is
       unlawfully attempting to collect a debt discharged in federal bankruptcy proceedings does
       not involve the expert consideration of complex technological and scientific data. See
       Sheffler, 2011 IL 110166, ¶ 40. The issue raised in Thomas’s claim is not committed to the
       Commission’s expertise. Rather, Thomas asserts a claim of unlawful conduct by a public
       utility committed to the jurisdiction of the circuit court under section 5-201 of the Act (220
       ILCS 5/5-201 (West 2008)). Thomas claims Peoples Gas violated the Consumer Fraud Act.
       Sheffler does not hold the circuit court lacks jurisdiction over such claims.1 We conclude
       Thomas’s claims fall within the jurisdiction of the circuit court. Thus, the circuit court erred
       in dismissing the complaint and denying the motion to reconsider.

¶ 23                                        CONCLUSION
¶ 24       In sum, the circuit court erred in dismissing Thomas’s complaint, because her claim does
       not fall under the jurisdiction of the Commission. Accordingly, the judgment of the circuit
       court of Cook County is reversed and the cause remanded for further proceedings consistent
       with this opinion.




               1
                In Sheffler, after the Illinois Supreme Court held the negligence allegations regarding the
       adequacy of ComEd’s service were within the exclusive jurisdiction of the Commission, the court
       considered whether plaintiffs’ allegations regarding ComEd’s failure to restore service to Life
       Support Registry customers on a priority basis stated a claim pursuant to the Consumer Fraud Act
       (815 ILCS 505/2 et seq. (West 2004)). Sheffler, 2011 IL 110166, ¶ 57. The circuit court dismissed
       the Consumer Fraud Act claim for failing to state an adequate claim for relief. However, the
       appellate court did not specifically address the plaintiffs’ Consumer Fraud Act claim. Id. at ¶ 59. The
       Sheffler court ultimately agreed that the plaintiffs failed to state a claim pursuant to the Consumer
       Fraud Act. Id. at ¶ 67. Notably, the Sheffler court (and the circuit court in that case) did not consider
       whether the Consumer Fraud Act claim fell within the exclusive jurisdiction of the Commission.

                                                     -6-
¶ 25   Reversed and remanded.




                                -7-
