Haste v. Indianapolis Power & Light Co.

• Decision Date: 28 November 1978
• Docket Number: No. 2-1076A392,2-1076A392
• Citation: 382 N.E.2d 989,178 Ind.App. 394
• Parties: Roy H. HASTE, David Koss, Gloria M. Schwarts, et al., Appellants (Plaintiffs Below), v. INDIANAPOLIS POWER & LIGHT COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 989

382 N.E.2d 989

178 Ind.App. 394

Roy H. HASTE, David Koss, Gloria M. Schwarts, et al Appellants (Plaintiffs Below), v. INDIANAPOLIS POWER & LIGHT COMPANY, Appellee (Defendant Below).

No. 2-1076A392.

Court of Appeals of Indiana, Fourth District.

Nov. 28, 1978.

Robert V. Bridwell and Paul Hirsch, Haymaker, Hirsch & Fink, Indianapolis, for appellants.

Alan W. Boyd, Jerry P. Belknap, Jon D. Noland, Barnes, Hickam, Pantzer & Boyd, Marcus E. Woods, Indianapolis, for appellee.

YOUNG, Judge.

Plaintiffs challenge the trial court's decision to dismiss their complaint. ¹ The trial court took this action in response to a motion to dismiss asserting lack of subject matter jurisdiction. Ind.Rules of Procedure, Trial Rule 12(B)(1). The sole issue before us is whether the trial court had subject matter jurisdiction. We conclude that it did not, thus we affirm.

The events giving rise to this appeal are as follows. On June 26, 1975, the Public Service Commission of Indiana ("Commission") approved a request by the appellee, Indianapolis Power & Light Co. ("IPALCO"), for a change in IPALCO's fuel cost adjustment charges. ² The merits of the Commission's order are not before us. We do, however, set forth so much of the order as is necessary to decide this appeal. In pertinent part the order stated:

"6. Applicant (IPALCO) should be authorized to collect such fuel adjustment charges per KWH billed Effective on all bills rendered by Applicant for electricity on and after the effective date of this order; provided, that for any customer such fuel cost adjustment charges shall be in effect for not less than a monthly billing cycle ". . . .tme

"IT IS THEREFORE ORDERED BY THE PUBLIC SERVICE COMMISSION OF INDIANA that Applicant be, and it hereby is, authorized to collect fuel cost adjustment charges in accordance with finding 4 hereof effective on all bills rendered by Applicant for electricity on and after the effective date of this order . . .." (emphasis added.)

The effective date of the order was June 26, 1975, the same date on which the Commission handed down the decision. IPALCO, which bills its customers for electricity received prior to the billing date, put the order into effect at once. Accordingly, one consequence of the order was to increase electric bills for electricity furnished prior to the effective date of the order. ³ Thus, in common parlance it could be said that the order had a retroactive effect. This alleged effect is readily ascertainable from a reading of the order. ⁴

At this juncture, parties, such as the appellants, who were aggrieved by the Commission's order could have appealed to the Court of Appeals. See I.C.1971, 8-1-3-1 (Burns Code Ed.); Ind.Rules of Procedure, Appellate Rule 4(C). If the Commission's order were subsequently reversed on the merits, then IPALCO would be obligated to refund the amounts collected pursuant to the Commission's order. I.C. 8-1-3-6.

However, the appellants abandoned this statutory remedy. The appellants opted to file an action in the Marion Circuit Court. In this action they alleged that IPALCO, acting pursuant to the Commission's order, unlawfully applied the order retroactively. For relief, the appellants prayed the Court to award as damages the amount collected by IPALCO pursuant to the order. ⁵

The appellants' decision to abandon the statutory remedy is fatal. The Legislature has determined that parties aggrieved by orders of the Commission may challenge such decisions by proceeding in the manner prescribed by I.C. 8-1-3. The procedure established by the Legislature was fully capable of protecting the rights of the appellants. Because the Legislature has established this statutory procedure, Indiana trial courts now lack subject matter jurisdiction over those disputes which fall within the ambit of I.C. 8-1-3. State ex rel. Indianapolis Water Co. v. Boone Circuit Court (1974), 261 Ind. 583, 307 N.E.2d 870; Indianapolis P. & L. Co. v. Highland Realty Inc. (1970), 253 Ind. 637, 256 N.E.2d 394; State ex rel. Public Service Comm'n v. Marion Circuit Court (1961), 242 Ind. 145, 177 N.E.2d 397; Decatur County R. E. M. C. v. Public Service Co. of Ind. (1971), 150 Ind.App. 193, 275 N.E.2d 857; See Indiana Bell Tel. Co. v. Friedland, (1978) Ind.App., 373 N.E.2d 344. Consequently, the trial court properly dismissed this action for lack of subject matter jurisdiction.

The appellants assail the trial court's decision on various grounds. First, they argue that they possessed a "common law" right to sue IPALCO. The appellants have cited to us no authority, and we have found none, which would permit aggrieved parties to ignore an adequate statutory remedy and resort instead to a common law action to challenge the merits of the Commission's order. The appellants also sprinkle their discussion with suggestions that the order was defective because it was retroactive. This suggestion concerns the merits of the order and cannot now be considered by us. This is because the appellants abandoned their statutory opportunity to review the merits of the order. Another suggestion tendered by the appellants is that the Commission would have no power to award the damages which the appellants seek in their lawsuit. Be that as it may, we note that I.C. 8-1-3-6, Supra, would afford appellants equivalent redress. Finally appellants complain that the order is ambiguous. However, appellants do not explain why any asserted ambiguity would excuse their noncompliance with I.C. 8-1-3. ⁶ In any event, we find no ambiguity.

The second argument raised by appellants is that I.C. 8-1-2-105, 107, and other statutory provisions, reserve to them a right of action against IPALCO. Again, we find no authority which would permit appellants to ignore I.C. 8-1-3, and found a cause of action on other statutory provisions.

The appellants' third contention is that they were not aggrieved by the Commission's order Per se; but rather by the "wrongful application" of the order by IPALCO. This argument is superficial. The appellants' complaint clearly alleges that IPALCO's conduct was undertaken "pursuant to an order" of the Commission. Their complaint thus reveals that the source of their alleged injury is clearly the order itself. There is an adequate statutory remedy to challenge that order. We will not permit the appellants to circumvent that remedy.

Finally, the appellants claim that under the doctrine of primary jurisdiction, they should be permitted to pursue their lawsuit in the trial court. We reiterate that the issue of jurisdiction has been foreclosed by the Legislature. See I.C. 8-1-3 and our discussion, Supra.

Affirmed.

CHIPMAN, P. J., and MILLER, J., concur.

1 The trial court's entry states: "Court, having heretofore taken Defendant's Motion to Dismiss under advisement, and being duly advised now...