                                       2017 IL App (1st) 162821

                                            No. 1-16-2821

                                          November 28, 2017


                                                                             SECOND DIVISION



                                               IN THE


                                   APPELLATE COURT OF ILLINOIS


                                          FIRST DISTRICT



     GREENSIDE PROPERTIES, LLC, on Behalf           )     Appeal from the Circuit Court
     of Itself and All Others Similarly Situated,   )     Of Cook County.
                                                    )
            Plaintiff-Appellant,                    )
                                                    )     No. 15 CH 439
            v.                                      )
                                                    )     The Honorable
     PEOPLES GAS LIGHT AND COKE                     )     Diane J. Larsen,
     COMPANY,                                       )     Judge Presiding.
                                                    )
            Defendant-Appellee.                     )



             PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
             Justices Pucinski and Mason concurred in the judgment and opinion.


                                            OPINION


¶1          Greenside Properties, LLC (Greenside), filed a complaint charging Peoples Gas Light

        and Coke Company (Peoples Gas) with billing Greenside for services provided long after

        Greenside asked Peoples Gas to terminate services. The Cook County circuit court dismissed

        the complaint, finding that the claim fell under the jurisdiction of the Illinois Commerce

        Commission (Commission). We affirm the circuit court’s judgment.
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¶2                                         BACKGROUND

¶3         In 2016, Greenside filed a complaint against Peoples Gas, basing its claims on theories of

        fraud and deceptive trade practices. Greenside alleged that it managed a property on 102nd

        Street in Chicago and it arranged for Peoples Gas to provide natural gas service for the

        property. Greenside leased the property to a tenant.

¶4         In the complaint, Greenside explained that when Greenside leases a property it manages,

        it cancels the request for service from Peoples Gas and informs the tenant that the tenant

        must arrange to have Peoples Gas continue supplying gas to the property for the tenant.

        Greenside followed its usual procedure with the property on 102nd Street. In November

        2013, Greenside requested a termination of services from Peoples Gas for the 102nd Street

        property. Peoples Gas sent a bill to Greenside for the 102nd Street property at the end of

        October 2013.

¶5         Greenside alleged that it heard nothing further from Peoples Gas about the property until

        June 2014, when Peoples Gas sent Greenside a bill for $1809.69 for gas used at the 102nd

        Street property. Greenside alleged that Peoples Gas generated bills for the 102nd Street

        property every month from October 2013 through June 2014 but it did not send the bills to

        Greenside. Peoples Gas never informed Greenside that Peoples Gas failed to terminate

        Greenside’s services at the 102nd Street property, despite Greenside’s request.

¶6         Greenside alleged that it experienced similar problems with several other properties it

        managed, including a property on Woodlawn Avenue. The Woodlawn property housed three

        separately metered units. In November 2013, Greenside asked Peoples Gas to terminate its

        request for service to the basement unit. Peoples Gas sent Greenside a bill in October 2013

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        for the basement unit, and Greenside heard nothing further from Peoples Gas about service to

        the basement unit until June 2014. In June 2014, Peoples Gas sent Greenside a bill in the

        amount of $1151.37 for service to the basement unit for the period from October 2013

        through June 2014. Greenside alleged that Peoples Gas had generated bills for the unit but it

        did not send the bills to Greenside and it never informed Greenside that it refused to honor

        Greenside’s request for termination of service to the basement unit.

¶7         Greenside alleged that “[i]f Greenside does not pay a bill for these impermissible charges,

        Peoples Gas refuses to subsequently connect services at any other Greenside property and

        continues to send bills to Greenside indicating that it owes a past due balance.” Because the

        problem occurred at several properties Greenside managed or owned, Greenside concluded

        that the improper posttermination billings occurred “[d]ue to a systematic error in Peoples

        Gas’s billing,” which caused Peoples Gas to generate bills for properties but not to send the

        bills to the property managers who had requested termination of services to those properties.

        Greenside sought to have the court certify a class of property managers and owners who

        requested termination of services from Peoples Gas and to whom Peoples Gas sent a bill for

        services provided after the requested termination date. Greenside sought reimbursement of all

        amounts improperly billed following the termination requests, together with “consequential

        damages such as needing to pay security deposits, not being able to initiate service on

        properties, and expending additional time, energy, and resources addressing Peoples Gas’s

        unlawful billing.”

¶8         Peoples Gas moved to dismiss the complaint under section 2-619(a) of the Code of Civil

        Procedure (Code) (735 ILCS 5/2-619(a) (West 2016)), arguing that the Illinois Commerce

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          Commission had jurisdiction over the claim. The circuit court dismissed the complaint.

          Greenside now appeals.

¶9                                              ANALYSIS

¶ 10         We review de novo the dismissal of a complaint under section 2-619(a) of the Code.

          DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The Public Utilities Act (Act) (220 ILCS 5/1­

          101 et seq. (West 2012)) establishes that the Commission “shall have general supervision of

          all public utilities *** and shall keep itself informed as to the manner and method in which

          the business is conducted. It shall examine those public utilities *** with respect to the

          adequacy, security and accommodation afforded by their service [and] also with respect to

          their compliance with this Act and any other law, with the orders of the Commission and

          with the charter and franchise requirements.” 220 ILCS 5/4-101 (West 2012). “[T]he

          Commission has the exclusive responsibility to ‘see that the provisions of the Constitution

          and statutes of this State affecting public utilities, the enforcement of which is not

          specifically vested in some other officer or tribunal, are enforced and obeyed, and that

          violations thereof are promptly prosecuted.’ ”” Commonwealth Edison Co. v. City of

          Warrenville, 288 Ill. App. 3d 373, 377-78 (1997) (quoting 220 ILCS 5/4-201 (West 1994)).

          “Thus, the legislature has given the Commission broad powers, so that the Commission on its

          own initiative can promulgate orders, rules or regulations fixing adequate service standards

          and requiring adequate facilities.” Sheffler v. Commonwealth Edison Co., 2011 IL 110166,

          ¶ 40.

¶ 11         The Act accords jurisdiction to the circuit court for some claims against utilities. The Act

          provides:

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                 “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 2012).

¶ 12         Our supreme court summarized the distinction between claims that the Commission must

          decide and claims that litigants may bring to the circuit court: “[I]f a claim is for reparations,

          jurisdiction is in the Commission, while jurisdiction of an action for civil damages lies in the

          circuit court.” Sheffler, 2011 IL 110166, ¶ 42. The Sheffler court added, “courts focus on the

          nature of the relief sought rather than the basis for seeking relief in determining whether an

          action falls within the jurisdiction of the Commission.” Sheffler, 2011 IL 110166, ¶ 50.

¶ 13         In Sheffler, the plaintiffs alleged that after a storm in 2007, Commonwealth Edison failed

          to restore power to the plaintiffs within 24 hours and some of the plaintiffs had no power for

          several days. The plaintiffs alleged that two plaintiffs in particular “suffered damage to their

          basement and personal property, house, appliances, and food, had to seek alternative living

          arrangements, and had to hire someone to repair the damage.” Sheffler, 2011 IL 110166,

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          ¶ 44. The plaintiffs sought compensation for “personal injury, property damage and financial

          damages, including the loss of use of property, and costs of repair and replacement of

          property.” Sheffler, 2011 IL 110166, ¶ 44.

¶ 14         The Sheffler court held that “the nature of the relief sought by plaintiffs is compensation

          for ComEd’s allegedly inadequate service, which directly relates to the Commission’s rate-

          setting functions for electrical power services. *** [I]t is essential that the Commission

          consider matters relating to services and rates of utilities, given the complex data underlying

          those matters.” Sheffler, 2011 IL 110166, ¶ 53. The Sheffler court affirmed dismissal of the

          complaint with prejudice.

¶ 15         Greenside points out that the Sheffler court affirmed the dismissal of the complaint on a

          separate basis before discussing the Commission’s jurisdiction. See Sheffler, 2011 IL

          110166, ¶¶ 33-38; but see id. ¶¶ 69-78 (affirming trial court’s denial of leave to file fourth

          amended complaint solely on basis of Sheffler’s jurisdictional analysis). Assuming,

          arguendo, the discussion in Sheffler of the Commission’s jurisdiction qualifies as dicta

          because the discussion was “unnecessary to the disposition of the case” (People v. Williams,

          204 Ill. 2d 191, 206 (2003)), we note that the parties in Sheffler briefed and argued the issue

          of the Commission’s jurisdiction. Thus, the discussion of jurisdiction in Sheffler is

          authoritative judicial dicta, which has “the force of a determination by a reviewing court and

          should receive dispositive weight in an inferior court.” Williams, 204 Ill. 2d at 206; see also

          Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Moreover, our supreme court reasserted Sheffler’s

          analysis of jurisdiction in State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co.,

          2014 IL 116844, ¶ 12. Accordingly, we apply here the authoritative reasoning of Sheffler.

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¶ 16         Greenside asks us to distinguish Sheffler on the basis of the kinds of problems described

          in the complaint. Greenside argues that its complaint alleges nothing as complex as the

          service disruption at issue in Sheffler. Instead, the complaint here involves “a mere transfer of

          service from Greenside’s name onto the tenants” and the failure to notify Greenside of the

          bills accruing on its account after it had requested a service termination. Greenside

          emphasizes that it “takes no issue with the particular rate charged over the relevant seven-

          month period.” Greenside has presented “a claim of billing the wrong person—Greenside

          versus the respective tenants—then forcing Greenside to pay those erroneous bills.”

¶ 17         The Illinois Administrative Code shows that the Commission treats these issues as

          matters falling under its authority. As currently amended, one section of the Administrative

          Code provides: “The utility shall not hold the landlord/property manager responsible for an

          amount owing to the utility by any tenant.” 83 Adm. Code 280.35(d) (2014). Another section

          says, “The utility shall bill the customer monthly unless both the customer and the utility

          have agreed to bi-monthly or quarterly billing.” 83 Adm. Code 280.50(b)(2) (2014).

¶ 18         We find that the amendments to the Administrative Code do not alter any substantive

          rights. See Itasca Public School District No. 10 v. Ward, 179 Ill. App. 3d 920, 926 (1989).

          Instead, the amendments clarify the Commission’s jurisdiction and the procedures for

          obtaining remedies for utilities’ mistakes and misconduct. See Liquilux Gas Corp. v. Martin

          Gas Sales, 979 F.2d 887, 888-90 (1st Cir. 1992). Greenside’s prayer for consequential

          damages does not take the case outside the Commission’s jurisdiction. Sheffler, 2011 IL

          110166, ¶¶ 44, 53.



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¶ 19         Greenside has alleged two specific billing errors, and it alleged that the errors form part

          of a systematic practice affecting other property managers. Under the broad explanation of

          “reparations” applied in Sheffler, the compensation for billing errors sought here qualifies as

          reparations. The circuit court correctly held that the Commission has jurisdiction over the

          claims presented here. Accordingly, we affirm the circuit court’s judgment dismissing the

          complaint.

¶ 20         Affirmed.




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