{ "id": 222614, "name": "THE VILLAGE OF EVERGREEN PARK, Indiv. and on Behalf of All Other Municipal Corporations Similarly Situated, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee", "name_abbreviation": "Village of Evergreen Park v. Commonwealth Edison Co.", "decision_date": "1998-05-27", "docket_number": "No. 1\u201497\u20141511", "first_page": "810", "last_page": "818", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 810" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "464 N.E.2d 761", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "issues presented by appellant on appeal are waived by failing to raise them before the trial court" } ], "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428016 ], "year": 1984, "pin_cites": [ { "parenthetical": "issues presented by appellant on appeal are waived by failing to raise them before the trial court" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0457-01" ] }, { "cite": "213 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "21" }, { "page": "21" } ], "opinion_index": 0 }, { "cite": "64 Ill. App. 2d 320", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5294028 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "323-24" }, { "page": "323-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/64/0320-01" ] }, { "cite": "109 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "parenthetical": "plaintiffs' complaint seeking refund for utility's failure to publish directory for which they had paid is claim for reparations" } ], "opinion_index": 0 }, { "cite": "348 Ill. App. 529", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5096800 ], "weight": 2, "year": 1952, "pin_cites": [ { "parenthetical": "plaintiffs' complaint seeking refund for utility's failure to publish directory for which they had paid is claim for reparations" } ], "opinion_index": 0, "case_paths": [ "/ill-app/348/0529-01" ] }, { "cite": "431 N.E.2d 1047", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483608 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "964-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0959-01" ] }, { "cite": "299 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1973, "pin_cites": [ { "page": "518" }, { "page": "518" }, { "page": "518" } ], "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850355 ], "weight": 5, "year": 1973, "pin_cites": [ { "page": "485" }, { "page": "485" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0483-01" ] }, { "cite": "370 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 671", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3398539 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0671-01" ] }, { "cite": "627 N.E.2d 145", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 983", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2980763 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0983-01" ] }, { "cite": "136 N.E. 797", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "304 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4997869 ], "year": 1922, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill/304/0312-01" ] }, { "cite": "345 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1976, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2717383 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0140-01" ] }, { "cite": "510 N.E.2d 52", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3542226 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0201-01" ] }, { "cite": "513 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "462-63" } ], "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612025 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "1079-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/1076-01" ] }, { "cite": "692 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45718 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0784-01" ] }, { "cite": "619 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] } ], "analysis": { "cardinality": 799, "char_count": 20845, "ocr_confidence": 0.75, "pagerank": { "raw": 1.2559396913436957e-07, "percentile": 0.6112829358005042 }, "sha256": "3b9fe156e517284d69937e03616c2562a827c9c548efd9258158e59df7aa9a11", "simhash": "1:3b14659c7bc7a9ad", "word_count": 3374 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF EVERGREEN PARK, Indiv. and on Behalf of All Other Municipal Corporations Similarly Situated, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff, 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\u2019s section 2 \u2014 619 motion (735 ILCS 5/2 \u2014 619 (West 1996), the trial court dismissed plaintiffs complaint for lack of subject matter jurisdiction. For the reasons discussed below, we affirm the dismissal of plaintiffs complaint.\nThe plaintiff\u2019s 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 streetlights under Tariff Rate 23 (Rate 23), entitled \u201cMunicipal Street Lighting,\u201d 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 streetlights 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.\nThe 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 streetlights that Commonwealth Edison had removed or had otherwise taken out of service. Commonwealth Edison agreed to reduce the Village\u2019s 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 \u2014 101 of the Public Utilities Act (220 ILCS 5/9 \u2014 101 (West 1996)).\nIn its motion to dismiss the Village\u2019s 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 \u2014 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 plaintiffs case was an overcharge case.\nA motion to dismiss pursuant to section 2 \u2014 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\u2019Donnell, Wicklund, Pigozzi & Peterson Architects, Inc., 295 Ill. App. 3d 784, 692 N.E.2d 739 (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 \u2014 252 provides in pertinent part:\n\u201cWhen 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.\u201d 220 ILCS 5/9 \u2014 252 (West 1996).\nWith respect to refunds for overcharges, section 9 \u2014 252.1 of the Act provides:\n\u201cWhen 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.\u201d 220 ILCS 5/9 \u2014 252.1 (West 1996).\nThe term \u201crate\u201d is defined by the Public Utility Act to include:\n\u201cevery 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.\u201d 220 ILCS 5/3 \u2014 116 (West 1996).\nIn accordance with sections 9 \u2014 252 and 9 \u2014 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\u2019n, 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\u2019n v. Public Utilities Comm\u2019n, 304 Ill. 312, 317, 136 N.E. 797, 799 (1922), stating:\n\u201cThe 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.\u201d\nThe Commission\u2019s jurisdiction has been interpreted broadly since section 9 \u2014 252 refers to rates or \u201cother charge [s] of any public utility\u201d (220 ILCS 5/9 \u2014 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\u2019s action is not one for reparations under section 9 \u2014 252 or 9 \u2014 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 \u2014 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.\nIn the instant case, the plaintiff concedes that the Commission has exclusive jurisdiction over claims seeking reparation for excessive charges (220 ILCS 5/9 \u2014 252 (West 1996)) and for claims for refund for overcharges due to \u201cerror either in charging more than the published rate or in measuring the quantity or volume of service provided\u201d (220 ILCS 5/9 \u2014 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\u2019s 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 plaintiffs 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.\nIn 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\u2019 action was for civil damages under section 73 (now section 5 \u2014 201) of the Act rather than for reparations for an overcharge under section 72 (now sections 9 \u2014 252 and 9 \u2014 252.1) of the Act. In that regard the court stated:\n\u201cWe 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.\u201d Gowdey, 37 Ill. App. 3d at 149, 345 N.E.2d at 793.\nSimilarly in Consumers Guild, 103 Ill. App. 3d 959, 431 N.E.2d 1047, the court found that the allegations in the plaintiff\u2019s 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:\n\u201cThe 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\u2019s employee. Thus the case sounds in tort and the claims \u2018are the type of traditional claims within which our trial courts of general jurisdiction are most familiar and capable of dealing.\u2019 [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\u2019s misrepresentations into using the wrong type of service.\u201d Consumers Guild, 103 Ill. App. 3d at 964-65, 431 N.E.2d at 1051.\nIn reliance on Gowdey and Consumers Guild, the Sutherland court also found that the circuit court had jurisdiction over plaintiff\u2019s 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\u2019s claims did not concern rates or charges set by the Commission which would require the Commission\u2019s 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.\nUnlike in Gowdey and Sutherland, the plaintiff\u2019s claim in the instant case is not one of contract formation and misrepresentation and does not require inquiry into the nature of the parties\u2019 bargain or, more specifically, whether the plaintiff had contracted with the public utility to purchase certain services. Also, unlike in Consumers Guild, plaintiff\u2019s 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 streetlights under Tariff Rate 23 at the rates established under that tariff. The plaintiff\u2019s 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. Plaintiffs 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 \u2014 252.1 of the Act. 220 ILCS 5/9 \u2014 252.1 (West 1996).\nThe 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\u2019s 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 plaintiffs contentions, there is nothing in the language of Tariff Rate 23, entitled \u201cMunicipal Street Lighting,\u201d 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 \u201cthe Company will furnish and operate the necessary facilities to supply street lighting service *** for the number of lighting units ordered by the Customer.\u201d It states that the \u201ccharges 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.\u201d 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 \u201ccontract with respect to any lighting unit served hereunder\u201d; it does not provide for cancellability of \u201ceach contract\u201d 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 \u201cthe number of lighting units and other equipment in place at the beginning of the month.\u201d\nThe fact that the plaintiff labels its action a breach of contract action is not dispositive nor does it transform plaintiffs action into a civil action for damages (see 220 ILCS 9/5 \u2014 201 (West 1996)). See Malloy, 12 Ill. App. 3d at 485, 299 N.E.2d at 518, citing Cummings, 64 Ill. App. 2d at 323-24, 213 N.E.2d at 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 \u2014 252 and 9 \u2014 252.1 of the Act.\nPlaintiffs 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, \u2018Whatever the plaintiff may seek to term the amount paid the defendant, that amount constituted a \u2018charge\u2019 or \u2018rate\u2019 within the meaning of section 72 [now sections 9 \u2014 252 and 9 \u2014 252.1] and her claim is for reparations within its meaning as well.\u201d Malloy, 12 Ill. App. 3d at 485, 299 N.E.2d at 518. In reaching this conclusion, the court noted that plaintiffs failure to seek a rate schedule revision or to fix utility rates for the future would \u201c \u2018not bring this matter within the powers of a court of equity and outside the exclusive jurisdiction of the Illinois Commerce Commission.\u2019 \u201d Malloy, 12 Ill. App. 3d at 485, 299 N.E.2d at 518, quoting Cummings, 64 Ill. App. 2d at 323-24, 213 N.E.2d at 21.\nThe 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\u2019s estimates of service did not take into account bulbs that were burned out. In concluding that the ICC had original jurisdiction over plaintiffs claim, the court stated:\n\u201cIn determining whether an action is within the exclusive jurisdiction of the ICC pursuant to section 72 [now sections 9 \u2014 252 and 9 \u2014 252.1] or within the circuit court\u2019s jurisdiction pursuant to section 73 [now section 5 \u2014 201], courts have consistently focused on the nature of the relief sought rather than on the plaintiffs 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.\u201d Thrasher, 159 Ill. App. 3d at 1079-80, 513 N.E.2d at 462-63.\nSee also Burke v. Illinois Bell Telephone Co., 348 Ill. App. 529, 109 N.E.2d 358 (1952) (plaintiffs\u2019 complaint seeking refund for utility\u2019s failure to publish directory for which they had paid is claim for reparations).\nHere, 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 streetlights that were not operational. (In Thrasher, the bulbs in the streetlights were burned out, whereas in the instant case the streetlights 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.\nFor the foregoing reasons, the order of the circuit court of Cook County dismissing plaintiff\u2019s action is affirmed.\nAffirmed.\nCAHILL and BURKE, JJ., concur.\nAs noted earlier in this opinion, plaintiffs 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 \u201cdefendant wrongfully collected money for equipment and services that plaintiff did not contract to receive and that defendant did not provide.\u201d (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 \u201ccharge.\u201d", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Paul V. Esposito, Douglas A. Lindsay, and John W. Loseman, all of Lewis, Overbeck & Furman, and Michael G. Cainkar and Heather R. Sloan, both of Louis F. Cainkar, Ltd., both of Chicago, for appellant.", "Kevin M. Forde and Janice R. Forde, both of Kevin M. Forde, Ltd., and Paul F. Hanzlik, David B. Goroff, and Bruce W. Doughty, all of Hopkins & Sutter, both of Chicago, for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF EVERGREEN PARK, Indiv. and on Behalf of All Other Municipal Corporations Similarly Situated, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201497\u20141511\nOpinion filed May 27, 1998.\nPaul V. Esposito, Douglas A. Lindsay, and John W. Loseman, all of Lewis, Overbeck & Furman, and Michael G. Cainkar and Heather R. Sloan, both of Louis F. Cainkar, Ltd., both of Chicago, for appellant.\nKevin M. Forde and Janice R. Forde, both of Kevin M. Forde, Ltd., and Paul F. Hanzlik, David B. Goroff, and Bruce W. Doughty, all of Hopkins & Sutter, both of Chicago, for appellee." }, "file_name": "0810-01", "first_page_order": 828, "last_page_order": 836 }