Milligan v. Ohio Bell Tel. Co.

• Decision Date: 06 December 1978
• Docket Number: No. 78-349,78-349
• Citation: 10 O.O.3d 352,56 Ohio St.2d 191,383 N.E.2d 575
• Parties: , 10 O.O.3d 352 MILLIGAN, Appellee, v. OHIO BELL TELEPHONE COMPANY, Appellant.
• Court: Ohio Supreme Court

Page 191

56 Ohio St.2d 191

383 N.E.2d 575, 10 O.O.3d 352

MILLIGAN, Appellee, v. OHIO BELL TELEPHONE COMPANY, Appellant.

No. 78-349.

Supreme Court of Ohio.

Dec. 6, 1978.

Syllabus by the Court

1. A Court of Common Pleas is without jurisdiction to hear a claim seeking treble damages pursuant to R.C. 4905.61 absent a prior determination by the Public Utilities Commission that there was in fact a violation of R.C. Chapters 4901, 4903, 4905, 4907, 4909, 4921 or 4925, or an order of the Commission.

2. A Court of Common Pleas is without jurisdiction to hear a claim alleging that a utility has violated R.C. 4905.22 by charging an unjust and unreasonable rate and wrongfully terminating service, since such matters are within the exclusive jurisdiction of the Public Utilities Commission. (Paragraph one of the syllabus in State, ex rel. Northern Ohio Tel. Co. v. Winter, 23 Ohio St.2d 6, 260 N.E.2d 827 approved and followed.)

3. A Court of Common Pleas has jurisdiction pursuant to R.C. 2305.01 to hear a properly stated claim alleging an invasion of privacy brought against a utility.

William A. Milligan (appellee herein), a residential customer of the Ohio Bell Telephone Company ("Ohio Bell") filed a complaint against Ohio Bell contending that it had charged him an unjust and unreasonable rate and had wrongfully terminated his service in violation of R.C. 4905.22, and that as a result thereof, Ohio Bell had injured his good name and reputation. Appellee contended further that Ohio Bell had "intentionally, wrongfully, and maliciously invaded plaintiff's right to privacy in an offensive and objectionable manner." Appellee sought treble damages in the amount of $30,750 as provided in R.C. 4905.61. ^*

Pursuant to Civ.R. 12(B)(1), Ohio Bell filed a motion to dismiss for lack of subject-matter jurisdiction on the basis that appellee's complaint involved alleged violations of R.C. Chapter 4905, matters which are within the exclusive jurisdiction of the Public Utilities Commission of Ohio ("the commission").

The trial court sustained the motion and dismissed the complaint.

On appeal, the Court of Appeals reversed and remanded the cause on the basis that the trial court had subject-matter jurisdiction to try actions for damages asserted against a utility. The court noted that no issue was presented concerning whether appellee's complaint stated a claim for which relief could be granted.

Subsequently, Ohio Bell filed a motion to certify the record of the case to this court for review and final determination in that the judgment rendered by the Court of Appeals for Franklin County was in conflict with a judgment rendered by the Court of Appeals for Lorain County in North Ridge Invest. Corp. v. Columbia Gas (1973), 49 Ohio App.2d 74, 359 N.E.2d 443. That latter court held that before an action for treble damages under R.C. 4905.61 may be brought in a common pleas court there must first be a successful prosecution of the complaint under R.C. 4905.26 before the commission.

The Court of Appeals sustained the motion for certification of conflict upon the following question:

"Whether or not a litigant is required to successfully prosecute a complaint under R.C. 4905.26 before a Court of Common Pleas may assert jurisdiction over an action for treble damages under R.C. 4905.61."

Douglas J. Bennett, Columbus, for appellee.

Porter, Wright, Morris & Arthur, Allan E. Roth, James S. Monahan, Columbus, and Robert K. Huston, Cleveland, for appellant.

SWEENEY, Justice.

Although appellee had not first sought a determination from the commission that Ohio Bell had violated any of the provisions of R. C. Chapter 4905, the Court of Appeals held that the trial court had jurisdiction to hear the complaint seeking treble damages under R. C. 4905.61 R. C. 4905.61 provides, in relevant part, that any person, firm, or corporation injured by any act or omission by a utility in violation of R. C. Chapter 4905 or an order of the commission may bring an action for treble damages against the utility. It also provides that any recovery by an injured party will not affect a recovery by the state under the forfeiture provisions contained in R. C. Chapter 4905.

Bringing suit for treble damages against a utility, therefore, is dependent upon a finding that there was a violation of a specific statute (R. C. 4905.22 in this cause) or an order of the commission. Because such finding is within the exclusive jurisdiction of the commission, paragraph one of the syllabus in State ex rel. Northern Ohio Tel. Co. v. Winter (1970), 23 Ohio St.2d 6, 260 N.E.2d 827, it follows that before a Court of Common Pleas has jurisdiction to hear a complaint for treble damages under R. C. 4905.61, there first must be a determination by the commission that a violation has in fact taken place. An award of treble damages based upon an independent finding by a Court of Common Pleas of a violation of such statute or order would be void. See State ex rel. Columbia Gas v. Kiroff (1976), 46 Ohio St.2d 397, 348 N.E.2d 705.

Thus, it was error for the Court of Appeals to reverse the judgment of the trial court, insofar as it held that the Court of Common Pleas had jurisdiction to hear the complaint concerning treble damages.

In reversing the judgment of the trial court, the Court of Appeals held further, in effect, that the trial court had subject-matter jurisdiction to hear appellee's first, second, and fourth claims for relief, wherein appellee alleged that Ohio Bell had charged an unjust and unreasonable rate, had wrongfully terminated his service, and thus had injured his good name and reputation.

Since these allegations are based on purported violations of R. C. Chapter 4905, only the commission has jurisdiction to review them. R. C. 4905.04 and 4905.26. As noted in Winter, supra, at page 10, 260 N.E.2d at page 830:

"The General Assembly has provided a comprehensive plan by which subscribers may contest the reasonableness of rates, rules, regulations and quality of service of a public utility, which plan does not include proceedings in the Court of Common Pleas."

Thus, it was also error for the Court of Appeals to reverse the judgment of the Court of Common Pleas with respect to appellee's first, second, and fourth claims for relief.

This court notes, however, that in his third claim for relief, appellee contends that Ohio Bell had wrongfully invaded his right to privacy and should be held liable in the amount of $5,000.

In New Bremen v. Pub. Util. Comm. (1921), 103 Ohio St. 23, at pages 30-31, 132 N.E.162, this court noted that the commission has no power to judicially ascertain and determine legal rights and liabilities, since such power has been vested in the courts by the General Assembly...