Jones v. Ohio Edison Co.

• Citation: 26 N.E.3d 834
• Decision Date: 15 December 2014
• Docket Number: No. 2014–A–0015.,2014–A–0015.
• Parties: Loretta JONES, et al., Plaintiffs–Appellants, v. OHIO EDISON COMPANY, Defendant–Appellee.
• Court: United States Court of Appeals (Ohio)

26 N.E.3d 834

Loretta JONES, et al., Plaintiffs–Appellants

v.OHIO EDISON COMPANY, Defendant–Appellee.

No. 2014–A–0015.

Court of Appeals of Ohio, Eleventh District, Ashtabula County.

Dec. 15, 2014.

Mark D. McGraw, Cleveland, OH, for Plaintiffs–Appellants.

John T. Dellick, Harrington, Hoppe & Mitchell, Ltd., Youngstown, OH, for Defendant–Appellee.

OPINION

CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellants, Loretta Jones and William Fifolt, appeal the judgment of the Ashtabula County Court of Common Pleas dismissing their complaint for damages against appellee, Ohio Edison Company, for lack of subject-matter jurisdiction. At issue is whether appellants' complaint represents a service complaint, which is within the exclusive jurisdiction of the Public Utilities Commission of Ohio (“PUCO”). For the reasons that follow, we affirm.

{¶ 2} Appellants filed this action against Ohio Edison, a public utility, which provided electricity to them at their former residence in Dorset, Ashtabula County, Ohio. In their complaint, appellants alleged that in mid- or late-July 2011, Ohio Edison replaced the utility pole that carries power lines to their residence. They alleged that Ohio Edison was negligent in connecting the power lines to the pole by using faulty equipment; connecting the lines too tightly to the pole; or connecting them too loosely. Appellants alleged that about one month later, on August 14, 2011, due to Ohio Edison's negligence, the power lines snapped off the pole, causing a power surge at their residence, resulting in damage to certain electric appliances and wiring. Appellants sought damages in the amount of $25,000.

{¶ 3} In response, Ohio Edison filed a motion to dismiss the complaint for lack of subject-matter jurisdiction, pursuant to Civ.R. 12(B)(1). Ohio Edison argued that, although appellants couched their complaint in terms of a negligence claim, the complaint asserted a claim arising from a power surge, which constitutes a service complaint, a matter within the exclusive jurisdiction of PUCO. Appellants filed a brief in opposition, arguing that PUCO did not have jurisdiction over their negligence claim. Upon considering the parties' briefs, the trial court entered judgment granting Ohio Edison's motion to dismiss.

{¶ 4} Appellants appeal the trial court's judgment, asserting the following for their sole assignment of error:

{¶ 5} “The trial court committed prejudicial error in granting defendant-appellee's, Ohio Edison Company's, Motion to Dismiss for Lack of Subject Matter Jurisdiction.”

{¶ 6} Subject-matter jurisdiction is the power conferred upon a court, either by constitutional provision or by statute, to decide a particular matter or issue on its merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). A motion to dismiss for lack of subject-matter jurisdiction is made pursuant to Civ.R. 12(B)(1), and “[t]he standard of review for a dismissal pursuant to Civ.R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in the complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). This court has noted, “ ‘in determining whether the plaintiff has alleged a cause of action sufficient to withstand a Civ.R. 12(B)(1) motion to dismiss, the trial court is not confined to the allegations of the complaint and it may consider material pertinent to such inquiry without converting the motion into one for summary judgment.’ ” Kinder v. Zuzak, 11th Dist. Lake No. 2008–L–167, 2009-Ohio-3793, 2009 WL 2357800, ¶ 10, quoting McHenry v. Industrial Com. of Ohio, 68 Ohio App.3d 56, 62, 587 N.E.2d 414 (4th Dist.1990).

{¶ 7} Further, in ruling on a Civ.R. 12(B)(1) motion to dismiss, the court is not required to take the allegations in the complaint at face value. N. Central Local Edn. Assn. v. N. Central Local School Dist. Bd. of Edn., 9th Dist. Wayne No. 96CA0011, 1996 WL 556910, *1 (Oct. 2, 1996). “ ‘[N]o presumptive truthfulness attaches to [the] plaintiff's allegations [.] * * * ’ ” Id., quoting Mortensen v. First Fed. S. & L. Ass'n., 549 F.2d 884, 891 (3d Cir.1977). Further, we review an appeal of a dismissal for lack of subject-matter jurisdiction under Civ.R. 12(B)(1) de novo. Washington Mut. Bank v. Beatley, 10th Dist. Franklin No. 06AP–1189, 2008-Ohio-1679, 2008 WL 928424, ¶ 8.

{¶ 8} “The General Assembly has created a broad and comprehensive statutory scheme for regulating the business activities of public utilities.” Kazmaier Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 150, 573 N.E.2d 655 (1991). “R.C. Title 49 sets forth a detailed statutory framework for the regulation of utility service and the fixation of rates charged by public utilities to their customers.” Id. As part of that scheme, the legislature created PUCO, and “empowered it with broad authority to administer and enforce the provisions of Title 49.” Id.

{¶ 9} R.C. 4905.26 provides that PUCO shall determine any complaint by any person against a public utility alleging that any rate charged or service rendered is in any respect unjust, unreasonable, in violation of law, or inadequate. The Ohio Supreme Court has interpreted this provision to confer jurisdiction upon PUCO to hear all complaints pertaining to service provided by a public utility, i.e., “service complaints.” Kazmaier, supra, at 151, 573 N.E.2d 655. Further, where PUCO has jurisdiction as provided by this statute, that jurisdiction is exclusive and reviewable only by the Supreme Court of Ohio. State ex rel. N. Ohio Tel. Co. v. Winter, 23 Ohio St.2d 6, 260 N.E.2d 827 (1970). The detailed procedure for filing rate and/or service complaints set forth in R.C. 4905.26 expresses the intention of the General Assembly that such powers were to be vested solely in PUCO. Winter, supra, at 9, 260 N.E.2d 827.

{¶ 10} However, courts retain limited subject-matter jurisdiction over “pure tort claims” and certain contract actions involving public utilities. State ex rel. Illuminating Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 20.

{¶ 11} Thus, we must determine whether appellants' claim falls within the exclusive jurisdiction of PUCO or is a pure tort claim within the jurisdiction of the common pleas court. Id. at ¶ 21. “ ‘[C]asting the allegations in the complaint to sound in tort * * * is not sufficient to confer jurisdiction upon a trial court’ when the basic claim is one that the commission has exclusive jurisdiction to resolve.” Id., quoting Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 202, 736 N.E.2d 92 (7th Dist.2000). Moreover, in Allstate Ins. Co. v. Cleveland Electric Illuminating Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 8, the Supreme Court rejected the notion that alleging a tort is sufficient, by itself, to confer jurisdiction upon the common pleas court. The Supreme Court held that in cases involving public utilities, jurisdiction is not conferred based solely on the pleadings. Id. Instead, courts must look to the substance of the allegations in the complaint to determine the proper jurisdiction. Id. at ¶ 9; Illum. Co., supra, citing Kazmaier, supra, at 154, 573 N.E.2d 655.

{¶ 12} Further, while “trial courts determine their own jurisdiction,” such determinations can be challenged. Allstate, supra, at ¶ 11. The Ohio Supreme Court in Allstate, adopted a two-part test to help courts decide when a trial court, rather than PUCO, has jurisdiction over a case involving a public utility alleged to have committed a tort, i.e., a “pure tort.” Under this test, a court asks (1) whether PUCO's administrative expertise is required to resolve the issue in dispute, and (2) whether the act complained of constitutes a practice normally authorized by the utility. If the answer to either question is “No,” the claim is one for a pure tort and is not within PUCO's exclusive jurisdiction. Id. at ¶ 11–13. Thus, the answer to both questions must be yes in order for the claim to fall within PUCO's jurisdiction.

{¶ 13} With respect to the first question, the complaint alleged that Ohio Edison was negligent in attaching power lines to a utility pole by using faulty equipment in attaching the lines to the pole; connecting the power lines to the pole too tightly; or connecting them too loosely.

{¶ 14} In determining whether appellants' claim presents a service complaint (in PUCO's jurisdiction) or a pure tort (in the court's jurisdiction), we first consider the substance of the allegations of the complaint. While appellants cast the allegations in the complaint to sound in tort, the issue presented here is whether Ohio Edison provided faulty service to appellants resulting in a power surge and property damage. Thus, regardless of how appellants couched the language in the complaint, their claim more closely resembles service-related claims than pure tort actions. Hiener v. Cleveland Electric Illuminating Co., 11th Dist. Geauga No. 95–G–1948, 1996 WL 495092 (Aug. 9, 1996) (tort claim for damages caused to a television set from a power surge more closely resembled service complaint than a pure tort action and fell within R.C. Chapter 4905 regulating service complaints); LaForge v. Cleveland Electric Illuminating Co., 115 Ohio App.3d 740, 686 N.E.2d 311 (11th Dist.1996) (complaint against utility alleging it caused damage to plaintiff's furnace during period of low voltage known as a “brownout” was clearly service-related); Miles Mgmt. Corp. v. FirstEnergy Corp., 8th Dist. Cuyahoga No. 84197, 2005-Ohio-1496, 2005 WL 730095 (manner in which electric company provided or failed to provide electrical service is service-related and within PUCO's jurisdiction).

{¶ 15} In contrast, Allstate, supra, provides a typical example of a case against an electric utility involving a pure tort. In Allstate, the plaintiff noticed a large tree limb leaning on the power lines leading to her home. Over a period of five hours, she called CEI three times to report the...