delivered the judgment of the court, with opinion.
Justices Cahill and McBride concurred in the judgment and opinion.
OPINION
This is an appeal from an order of respondent the Illinois Commerce Commission (ICC or respondent), cancelling previous gas rates for customers in Illinois and authorizing North Shore Gas Company (North Shore) and Peoples Gas Light and Coke Company (Peoples Gas) (together, the Utilities) to file new tariff sheets. Petitioners, the People of the State of Illinois (People), the Citizens Utility Board (CUB) and the City of Chicago (Chicago) (together, the GC petitioners), the Utilities, and Multiut Corporation (Multiut), now appeal from that order on various grounds. Respondent contends, inter alia, that this court does not have jurisdiction to reach the merits of this appeal under the Public Utilities Act (Act) (220 ILCS 5/10—201(a) (West 2008)), because the Illinois Appellate Court for the Second District wаs first to acquire jurisdiction over this matter. For the reasons discussed below, we agree with respondent and transfer this case back to the Second District.
I. BACKGROUND
On March 9, 2007, the Utilities filed tariffs with the ICC proposing general increases in natural gas rates of $102,560,000 for Peoples Gas and $6,314,000 for North Shore, new rate mechanisms and other tariff revisions. On April 4, 2007, the ICC suspended the proposed rates and initiated contested rate cases to examine the proposed rates and revisions. Several parties intervened, including the parties to this appeal, and an evidentiary hearing was held.
The ICC entered its dispositive order on February 5, 2008, permanently cancelling previous gas rates and ordering the filing of new tariff sheets. In doing do, the ICC authorized Peoples Gas to file new tariff sheets designed to produce annual revenues of $461,780,000, which reflected an increase of $71,191,000; and North Shore to file new tariff sheets to produce annual revenues of $63,439,000, reflecting a decrease of $213,000. In calculating those rates, the ICC denied the Utilities recovery of certain incentive compensation and pension costs. However, the ICC authorized a volume balancing adjustment rider (Rider VBA), a decoupling mechanism that imposes a monthly per-customer surcharge for decreased gas consumption, and a credit for increased gas consumption. In addition, the ICC authorized two changes to the full standby transportation rider (Rider FST), a rider used by transportation customers.
Several parties, namely, the People, the Utilities, Multiut, the Illinois Industrial Energy Consumers (IIEC), the University of Illinois (UI), the CUB, and Chicago, filed applications for rehearing within the statutorily allowed period of 30 days. On March 26, 2008, the ICC issued a notice of Commission action allowing IIEC’s and UI’s rehearing application on only one issue and denied all other applications for rehearing.
Each party sought to file an appeal, in varying chronological order, which raises the jurisdictional question that we now address. Substantively, GC petitioners contend that the ICC erred in authorizing the Rider VBA because it violates the prohibition against single-issue rate-making and test-year principles, it improperly discriminates against two classes of customers, and the Utilities did not prove that it was necessary. They also argue that the ICC also erred in calculating the reduction in the Utilities’ return on equity due to the decreased risk brought by the rider and in calculating the rates by failing to account for some portions of depreciation of the rate base. Moreover, the Utilities contend that the ICC erred by not including all of their incentive compensation in the rate base and operating expenses, by excluding pension costs from the rate base, and by making a reduction in their approved rate of return to account for the lower risk caused by Rider VBA. Finally, Multiut contends that the ICC erred in allowing changes to Rider FST because, in doing so, it approved a non-unanimous settlement without conducting an independent factual review.
On April 28, 2008, before the last order disposing of the issue for which rehearing was allowed, the Utilities filed a petition for judicial review in the Second District. Likewise, Abbott Laboratories (Abbott), which is one of the Illinois Industry Energy Consumers, 1 filed a petition for review in the Second District, and the People did the same on May 6, 2008, both before an order was entered disposing of the last pending issue for which rehearing was granted. Subsequently, on July 30, 2008, the ICC entered an order disposing of the last issue for which rehearing was allowed and amending its previous order to reflect that determination. Those orders were served on the parties on July 31, 2008. At 9:23 a.m. that day, the People filed a petition for review in the First District; at 11 a.m., the Utilities refiled a petition for review in the Second District; and at 11:17 that day, the CUB filed its petition in the First District. On August 18, 2008, Chicago also filed its petition for review in the First District, and the People filed a motion in the Second District to dismiss the petitions filed before July 30 as premature and to transfer the Utilities’ second petition to the First District. Multiut subsequently filed its petition for review in the First District on August 22, 2008. Although the People filed a motion asking to trаnsfer only the Utilities’ second petition, the Second District, on August 26, 2008, apparently transferred the Utilities’ first petition and other pending appeals to the First District on its own motion. In doing so, the Second District Appellate Court entered a transfer order without elaboration, in which it determined that the First District Appellate Court had jurisdiction over these appeals. The transferred appeals have been consolidated with four appeals that had been filed in the First District.
On October 1, 2008, respondent filed a motion to the supreme court for a supervisory order to vacate the transfer orders of the Second District and to order that all appeals be transferred and consolidated in the Second District. The supreme court denied the motion on October 29, 2008.
Respondent now contеnds that the First District does not have jurisdiction over the appeal because the Second District was first to acquire jurisdiction and under the Public Utilities Act, it now has exclusive jurisdiction over the appeals. The Utilities agree with respondent’s contention. The GC petitioners did not address this issue in their brief, but pursuant to this court’s request at oral argument, the People submitted their response to respondent’s motion to the supreme court for a supervisory order. In that response, the People contend that the First District has jurisdiction under the Act because the petitions filed in the Second District were premature and the First District was, therefore, first to acquire jurisdiction over the petitions. The ICC responds that, although the petitions filed in the Second District were premature when filed, that court was first to acquire jurisdiction because the petitions became effective when the ICC entered its order on rehearing. We agree with that contention and therefore transfer the appeal to the Second District Appellate Court.
II. ANALYSIS
In response to the appeals filed in the First District, respondent contends that this court does not have jurisdiction to review the order from the ICC. The Utilities, which are petitioners, state that they are in agreement with respondent’s contentions that this court does not have jurisdiction, but assert that they are not pursuing that subject in their brief. Respondent and the Utilities maintain that because the Second District was first to obtain jurisdiction, section 10 — 201(a) of the Act precludes this court from acquiring jurisdiction over this matter. For the foregoing reasons, we agree with respondent.
We first note that рetitioners appeal from a decision of the ICC, an administrative body. This court has jurisdiction to review administrative decisions only as provided by law, and we must exercise special statutory jurisdiction to review such administrative action. Ill. Const. 1970, art. VI, §6; Town & Country Utilities, Inc. v. Illinois Pollution Control Board,
The statute that gives an appellate court jurisdiction to review an order from the ICC is section 10—201(a) of the Public Utilities Act (220 ILCS 5/10—201(a) (West 2008)). Under section 10—201(a) of the Act:
“Within 35 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of the Commission refusing an application for a rеhearing of any rule, regulation, order or decision of the Commission, including any order granting or denying interim rate relief, or within 35 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any final order or decision of the Commission upon and after a rehearing of any rule, regulation, order or decision of the Commission, including any order granting or denying interim rate relief, any person or corporation affected by such rule, regulation, order or decision, may appeal to the. appellate court of the judicial district in which the subject matter of the hearing is situated, or if the subject matter of the hearing is situated in more than one district, then of any one of such districts, for the purpose of having the reasonableness or lawfulnеss of the rule, regulation, order or decision inquired into and determined.
The court first acquiring jurisdiction of any appeal from any rule, regulation, order or decision shall have and retain jurisdiction of such appeal and of all further appeals from the same rule, regulation, order or decision until such appeal is disposed of in such appellate court.” 220 ILCS 5/10—201(a) (West 2008).
Thus, for an appellate court to have jurisdiction over an order from the ICC, the subject matter of the proceeding must be located in the judicial district of the appellate court, and “if the subject matter of the hearing is situated in more than one district,” the appellate court which first acquires “jurisdiction of any appeal” from the decision is the court that retains jurisdiction until the appeal is disposed оf in that court. 220 ILCS 5/10—201(a) (West 2008).
In this case, the record shows that while all of Peoples Gas’ customers are located in Cook County, which is in the First Judicial District, North Shore also serves customers in Lake County, in the Second Judicial District. Having determined that the subject matter is situated in two judicial districts, we must consider which district first acquired jurisdiction over the appeal from the ICC’s order. See, e.g., People ex rel. Madigan v. Illinois Commerce Comm’n,
The People contend, in their objection to the motion for a supervisory order, that the First District was first to acquire jurisdiction over this matter because the petitions filed in the Second District were premature, and the first petition filed after the ICC’s order on rehearing was filed in the First District. In doing so, they contend that the Act, which confers exclusive jurisdiction on the first appellate court to acquire it, also precludes jurisdiction on appeals filed before an application for rehearing is finally disposed of by the Commission, by providing that “[n]o appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and finally disposed of by the Commission.” 220 ILCS 5/10—113(a) (West 2008).
We agree with the contention that jurisdiction would not have attached to the Second District by the filings of April 28, May 2, and May 6, 2008, as of the time they were filed, since the ICC had yet to rule on the last issued on which rehearing was granted. Nevertheless, those petitions would have been sufficient to confer jurisdiction as of the moment that the final order on rehearing was entered, pursuant to Illinois Supreme Court Rule 303(a)(2) (eff. May 30, 2008), which рrovides that prematurely filed appeals become automatically effective at the time when the appeal may properly be filed. Under that rule:
“When a timely postjudgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or claim is entered. A party intending to challenge an order disposing of any postjudgment motion or separate claim, or a judgment amended upon such motion, must file a notice of appeal, or an amended notice of appeal within 30 days of the entry of said ordеr or amended judgment, but where a postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.” Ill. S. Ct. R 303(a)(2) (eff. May 30, 2008).
Thus, we find that the Second District was first to acquire jurisdiction over this appeal. Under the current version of Rule 303(a)(2), otherwise premature petitions for review are held by the appellate court and become effective when an order resolving the last pending motion is entered. Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008). For instance, in In re Marriage of Duggan,
The People have urged that Rule 303(a) would apply only to dispositions from lower courts, but not to administrative decisions as was the case here. That contention would fail pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994), which provides:
“The procedure for a statutory direct review of orders of an administrative agency by the Appellate Court shall be as follows:
^
*** Insofar as appropriate, the provisions of Rules 301 through 373 (except for Rule 326) are applicable to proceedings under this rule. As used in any applicable rule, the term ‘appellant’ includes a petitioner and the term ‘appellee’ includes a respondent in proсeedings to review or enforce agency orders.” Ill. S. Ct. R. 335(i) (eff. Feb. 1, 1994).
Accordingly, administrative proceedings are encompassed within the provisions of Rule 303(a)(2). This conclusion is supported by Commonwealth Edison Co. v. Illinois Commerce Comm’n,
Nevertheless, the People contend that, notwithstanding Rule 335, Rule 303(a)(2) does not apply to a petition for judicial review while a rehearing is pending. They maintain that, unlike a final order from a trial court, which can itself be appealed, an order from the ICC cannot be final because the Act does not permit an administrative order to be judicially reviewed until an order on rehearing is entered or the statutory limit runs. Accordingly, the People claim that Rule 303(a)(2) is applicable only to postjudgment motions made after final judgments and does not apply to administrative decisions bеfore an order on rehearing is entered.
That distinction was explicitly rejected in Madigan,
The People argued that the First District had been first to acquire jurisdiction because ComEd’s and Ameren’s petitions filed before the ICC denied the last applications for rehearing were premature under Rule 303(a)(1), which provides that petitions for review must be filed “ ‘after the entry of the order disposing of the last pending post-judgment motion,’ ” and under the previous version of Rule 303(a)(2), a notice of appeal filed before that time “ ‘shall have no effect and shall be withdrawn.’ ” Commonwealth Edison Co.,
The court agreed with the People and found that their appeals were premature specifically because the “last pending post-judgment motion” of Rule 303(a)(1). Commonwealth Edison Co.,
“Section 10—201(a) does not expressly state that, in the event that multiple parties file applications for rehearing, a party wishing to appeal does not have to wait for the ICC to dispose of all timely filed aрplications for rehearing. Section 10—201(a) does not address multiple applications for rehearing but, rather, speaks only to the situation where a single application for rehearing is filed. *** Because the legislature did not express an intent to exercise its power to promulgate a rule preempting Rule 303(a)(1)’s ‘last pending post-judgment motion’ provision, Rule 303(a) is applicable here. Thus, the petitions for review docketed as Nos. 2—06—0149 and 4—06—0118 were premature under Rule 303(a)(1) and, consequently, ineffectual under [former] Rule 303(a)(2).” Commonwealth Edison Co.,368 Ill. App. 3d at 739 ,858 N.E.2d at 74 (quoting Ill. S. Ct. R. 303(a)(1) (eff. Feb. 1, 1994)).
The court’s reliance on Rule 303(a) in Commonwealth Edison Co.,
The People argued that because the Fourth District dismissed Illinois Bell’s appeals for lack of jurisdiction, the First District was first to acquire jurisdiction. Madigan,
“At the time of the January 2007 ruling [dismissing the previously filed appeals as premature], the applicable Rule 303(a)(2) appeared in 210 Ill. 2d R. 303(a)(2). Interestingly, it is this version of the rule the Madigan court told this court to consider. *** Under this version, petitions for review filed in the appellate court before the Commission resolved all of the postjudgment motions were untimely and deprived the appellate court of jurisdiction over such petitions.” Madigan,394 Ill. App. 3d at 390 ,915 N.E.2d at 460 .
While the court in Commonwealth Edison Co.,
In fact, unlike the court in Commonwealth Edison Co.,
Moreover, the language of Rule 303(a)(2) does not differentiate appeals filed before a postjudgment motion has been filed, from those filed while a postjudgment motion is already pending at the cirсuit court. It provides that “[w]hen a timely postjudgment motion has been filed by any party, *** a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or claim is entered.” Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008). Thus, the rule only looks to when a pending motion is disposed of and allows a premature appeal to become effective even if it was filed when a postjudgment motion was already pending and the party filing it was aware that the judgment appealed from was not final at that time. Therefore, it cannot be argued that Rule 303(a)(2) only protects parties who file appeals that are permitted at the time of filing but become premature when another party files a postjudgment motion.
Thus, the argument that Rule 303(a)(2) is inapplicable to appeals from administrative proceedings because of the apparent distinction between postjudgment motions at lower court proceedings and applications for rehearing in administrative proceedings does not hold up. As the court noted in Commonwealth Edison Co.,
The People also contend that Rule 303(a)(2) does not apply to the Utilities’ petition because “where a claim is cognizable in the first instance by an administrative agency alone, administrative remedies must be exhausted before the case may be considered by the courts,” citing Citizens Utilities Co. of Illinois v. O’Connor,
As previously noted, the Act permits any party to seek judicial review once its petition for rehearing has been denied and is only premature because of the “last pending motion” provision of Rule 303(a)(1). Commonwealth Edison Co.,
The People, nevertheless, contend that Rule 303(a)(2) is inapplicable to premature petitions from an administrative decision because the Act confers limited jurisdiction on appellate courts and does not allow appeals from administrative orders until an order on rehearing is entered. In doing so, the People maintain that sections 10—201(a) and 10—113(a) of the Act preempt Rule 303(a)(2) because appeals from the ICC must strictly follow the language of the Act.
The supreme court recognized, in County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board,
Nevertheless, the use of such legislative authority must be explicitly stated (Cermak Health Services,
Having made this determination, we need not consider the separation of powers issue that would have been engendered if sections 10—113(a) and 10—201(a) of the Act and Rule 303(a)(2) were not mutually accommodatable. See Ultsch v. Illinois Municipal Retirement Fund,
Nevertheless, the Peoрle also contend that if Rule 303(a)(2) is applicable, it required a new petition for review to be filed once the ICC’s order on rehearing was entered to preserve appellate review. In doing so, the People note that under Rule 303(a)(2), “[a] party intending to challenge *** a judgment amended upon such motion, must file a notice of appeal, or an amended notice of appeal within 30 days of the entry of said *** amended judgment.” Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008). The People maintain that since the ICC entered an amended order on rehearing, any jurisdiction acquired by the Second District was not properly preserved until after the First District acquired jurisdiction.
However, Rule 303(a)(2) requires an additional filing of a notice of appeal only if the party intends to challenge the merits of the new order disрosing of the postjudgment motion. “[Wjhere a postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.” Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008).
In this case, when the Utilities and the People filed petitions for review in the Second District, their applications for rehearing had already been denied, and those parties do not challenge the issue that was decided by the ICC in its order on rehearing. Accordingly, the rule did not require them to file a new notice of appeal to preserve jurisdiction in the Second District.
Thus, we find that Rule 303(a)(2) governs the petitions for judicial review filed by the parties in this case, and that under that rule, the Utilities’ and the People’s petitions filed in the Second District became effective on July 30, 2008, when the ICC entered its order on rehearing. Since no party filed a petition for review in the First District until July 31, 2008, the Second District was the court to first acquire jurisdiction over this matter, and under section 10—201(a) of the Act, it must retain jurisdiction until the merits of the appeal are disposed of. 220 ILCS 5/10—201(a) (West 2008); Madigan,
We further note that although it may be argued that we are bound by the Second District’s determination that this court has jurisdiction over this matter because of the law-of-the-case doctrine, such a contention would not prevail. Commonwealth Edison Co.,
However, the doctrine binds a court only where the prior decision was final. Patterson,
We also note that while neither party has argued that we are but one appellate court, and the jurisdictional requirements of section 10—201(a) of the Act govern venue instead of jurisdiction, in which case the Second District had discretion to transfer the matter to this court, such contention would be unpersuasive. A court’s authority to transfer a case to another venue is not absolute, and in ruling on a motion to transfer a case under the doctrine of forum non conveniens, courts are directed to consider several factors, including the plaintiff s choice of forum, and such rulings are subject to review under the abuse of discretion standard. See Spiegelman v. Victory Memorial Hospital,
Moreover, although different appellate districts may have general jurisdiction over a petition for judicial review from an administrative decision, it can only have subject matter jurisdiction as provided under section 10—201(a) of the Act. Ferndale Heights Utility Co. v. Illinois Commerce Comm’n,
However, although this court lacks subject matter jurisdiction over this appeal, dismissing the case is not its only option. This court has recognized that when a court lacks subject matter jurisdiction under the Act, it has the authority, in the exercise of its general jurisdiction to transfer a case to a court of competent jurisdiction if it will cure the defect and avoid the necessity of dismissing the appeal. Ferndale Heights Utility Co.,
For the foregoing reasons, we conclude that we do not have jurisdiction over this appeal and transfer the matter to the Appellate Court for the Second District.
Appeal transferred.
Notes
It appears from the Joint Appendix filed by the parties to this appeal that Abbott has formally withdrawn from this appeal, and its former participation is not an issue in this case.