Peoples Gas, Light and Coke Co. v. Illinois Commerce Com'n, 87-0556

• Decision Date: 08 September 1988
• Docket Number: No. 87-0556,87-0556
• Citation: 529 N.E.2d 671,175 Ill.App.3d 39,124 Ill.Dec. 690
• Parties: , 124 Ill.Dec. 690 The PEOPLES GAS, LIGHT AND COKE COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION and Alpha Baking Company, Inc., Respondents.
• Court: United States Appellate Court of Illinois

Page 671

529 N.E.2d 671

175 Ill.App.3d 39, 124 Ill.Dec. 690

The PEOPLES GAS, LIGHT AND COKE COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION and Alpha Baking Company, Inc. Respondents.

No. 87-0556.

Appellate Court of Illinois First District, Fourth Division.

Sept. 8, 1988.

James Hinchliff, Gerard T. Fox and William M. Lopez, Chicago, for petitioner.

Kathleen Nolan, Sp. Asst. Atty. Gen., Illinois Commerce Com'n, Chicago, for respondent Illinois Commerce Comn.

James T. Ferrini, Richard C. Clark, Peter Kanaris and Edward M. Kay, Clausen Miller Gorman Caffrey & Witous, P.C., Chicago, for respondent Alpha Baking Co., Inc.

Justice McMORROW delivered the opinion of the court:

The Peoples Gas, Light and Coke Company (the gas company) sent a bill to Alpha Baking Company, Inc. (Alpha) based on an estimate of Alpha's gas consumption during a three-month period, May 1985 to July 1985, when the gas company's meter measuring Alpha's consumption malfunctioned and under-registered the gas supplied to Alpha. Alpha unsuccessfully disputed the estimated bill in an action before the Illinois Commerce Commission. Thereafter, the gas company issued a second estimated bill for a subsequent eight-month period, September 1985 to April 1986, during which the same meter malfunctioned by again under-registering the amount of gas consumed. As with the previous under-registration, the second bill represented the difference between estimated consumption and the amount indicated on the meter's digital counter. Alpha applied to the Commission for a rehearing with respect to the gas company's second estimated bill. The Commission found that the gas company was at fault within the meaning of the Illinois Administrative Code (Code) (83 Ill.Admin.Code 500.190 (1985)) with respect to the second malfunction and therefore was not entitled to bill Alpha for the estimated consumption during this period. The gas company seeks direct appellate administrative review.

We affirm.

BACKGROUND

The meter which is the subject of this dispute is a rotary meter used only for high volume commercial and industrial customers. It is located in a remote area of Alpha's plant where the air temperature varies by as much as thirty degrees. Because the volume of gas consumed varies directly in proportion to the change in the gas temperature, accuracy requires an adjustment to the volume measurement to compensate for changes in gas temperature. To assure correct measurement of Alpha's consumption of gas, a temperature compensating instrument was mounted on the top of the meter to adjust for the variations in temperature. The gas company placed the instrument inside a locked metal box, which has a small window. The window displays the digital counter telling how many cubic feet of gas Alpha has used, which in turn determines how much it will be billed.

In February 1985, an internal gas company computer report indicated that Alpha's counter was registering an irregular consumption, which, under certain circumstances, may be attributable to factors other than a malfunctioning meter. In May 1985, the gas company conducted its annual inspection of Alpha's gas meter and found that the temperature compensating device was stuck at 100 degrees Fahrenheit. The gas company neither replaced the temperature compensating instrument nor performed any tests to determine which device or mechanism in the instrument was malfunctioning. It replaced the follower wheel, an integral part of the temperature compensating device. The gas company maintains that when the follower wheel was replaced, that "all problems were solved," and that the gas temperature was in no way associated with the instrument malfunction. The gas company then sent Alpha a bill based on an estimate of Alpha's consumption for the period between March and May 1985. The estimate was derived from a reading of the veeder counter which registers the gas flow without compensating for changes in temperature. Above the veeder counter is written "UNCORRECTED READING."

In September 1985, Alpha filed a formal complaint with the Commission alleging that, with respect to the alleged under-registration for March to May, 1985, the gas company was at fault with respect to the meter's malfunction. Alpha requested that the Commission order the gas company to credit Alpha for the difference between the registered consumption and the estimated consumption. The Commission denied Alpha's request. This denial was the Commission's original order (Original Order).

In April 1986, the gas company made a special inspection of the meter. Once again, the meter's temperature compensating device rested at 100 degrees. The gas company claims that the device functioned properly for five months after its replacement of the follower wheel in May 1985, but rested at full scale again in September 1985 and remained at full scale registration until the April, 1986 inspection. The gas company sent Alpha a bill based upon the gas company's estimate of the instrument's under-registration of consumption from September 1985 until April 1986. On the basis of this second billing, Alpha applied to the Commission for a rehearing raising the issue of the gas company's compliance with the Commission's testing requirements.

In its order on rehearing (the Order on Rehearing), the Commission found the gas company "at fault for allowing the incorrect meter to remain in service * * * since the prescribed tests for meter accuracy have not been performed." Specifically, it determined that in May 1985, when the first under-registration was uncovered, the gas company should have either removed the device from service or performed the three-temperature test required by section 500.190 of the Illinois Administrative Code (Code) when it receives a complaint and indication that a temperature compensating device incorrectly registers at high or low temperatures. (83 Ill.Admin.Code 500.190 (1985).) The Commission found that the gas company received a complaint and indication that the meter was malfunctioning, and that upon receipt of such complaint and indication, the gas company was obliged to either remove the meter or perform the three-temperature test to be in compliance with the Code. Since the gas company did neither, the Commission concluded that the gas company could not render an estimated bill for consumption during the second malfunction of the meter and ordered the gas company to strike the estimated amount billed for that period. The Commission denied the gas company's request for rehearing, and the gas company seeks direct appellate administrative review.

OPINION

Initially, Alpha contends that this court lacks subject matter jurisdiction because the gas company filed its petition for review within thirty days after service of the Commission's denial of rehearing, pursuant to section 10-201(a) of the Illinois Public Utilities Act. (Ill.Rev.Stat.1985, ch. 111 2/3, par. 10-201(a).) Alpha argues that the gas company's petition for review should have been filed within thirty days of the entry of the Commission's order denying rehearing, in accordance with Illinois Supreme Court Rule 303(a). (107 Ill.2d R. 303(a).) Alpha contends that Supreme Court Rule 303(a) should prevail because it governs a matter within judicial authority and is in conflict with the statutory time period for the filing of a petition for direct appellate administrative review. (See generally People v. Walker (1988), 119 Ill.2d 465, 475, 116 Ill.Dec. 675, 519 N.E.2d 890; O'Connell v. St. Francis Hospital (1986), 112 Ill.2d 273, 281, 97 Ill.Dec. 449, 492 N.E.2d 1322.) We disagree.

Administrative review of agency decisions is properly an area subject to legislative control, and it is within the "authority of the legislature to fix the appropriate time within which to file a petition for review * * *." (Benton Police Department v. Human Rights Commission (1986), 147 Ill.App.3d 7, 13, 100 Ill.Dec. 698, 703, 497 N.E.2d 876, 881, appeal denied (1988), 118 Ill.2d 541, 117 Ill.Dec. 222, 520 N.E.2d 383; see also Hardee's Food Systems, Inc. v. Human Rights Commission (1987), 155 Ill.App.3d 173, 176-77, 107 Ill.Dec. 931, 507 N.E.2d 1300; but see Consumers Gas Company v. Illinois Commerce Commission (1986), 144 Ill.App.3d 229, 98 Ill.Dec. 127, 493 N.E.2d 1148.) Supreme court rules applicable to direct appellate administrative review evince the court's intent to defer to the legislative determination of statutory time periods for filing petitions for review. (Benton Police Department v. Human Rights Commission (1986), 147 Ill.App.3d 7, 12, 100 Ill.Dec. 698, 497 N.E.2d 876, citing 107 Ill.2d R. 335(h).) In light of the above, we conclude that Supreme Court Rule 303(a) does not pre-empt section 10-201(a) of the Public Utilities Act, that the gas company's petition was timely filed, and that appellate jurisdiction exists to review the Commission order.

On appeal, the gas company contends that the Order on Rehearing must be reversed because the record shows that the gas company did not have a complaint or indication that the meter was under-registering between September 1985 and April 1986, that the two-temperature test to which the meter was subjected, after under-registration by the meter was discovered in May 1985, satisfied the purposes of the three-temperature test specified in the Code, and that the gas company was not at fault in allowing the meter to remain in service after the first malfunction.

The gas company argues that (1) the Commission Order on Rehearing is defective as a matter of law because it failed to make sufficiently specific findings of fact, (2) the Commission erroneously construed the complaint and indication requirement, (3) the Commission's evidentiary finding of a complaint and indication is factually insufficient, (4) the Commission mistakes mere negligence for a demonstration of fault, (5) the Order on Rehearing is inconsistent with the Commission's...