State ex rel. Ohio Edison Co. v. Shaker, 93-1533

• Decision Date: 02 February 1994
• Docket Number: No. 93-1533,93-1533
• Citation: 625 N.E.2d 608,68 Ohio St.3d 209
• Parties: The STATE ex rel. OHIO EDISON COMPANY, Appellant, v. SHAKER, Judge, Appellee.
• Court: Ohio Supreme Court

Page 209

68 Ohio St.3d 209

625 N.E.2d 608

The STATE ex rel. OHIO EDISON COMPANY, Appellant, v. SHAKER, Judge, Appellee.

No. 93-1533.

Supreme Court of Ohio.

Submitted Nov. 9, 1993.

Decided Feb. 2, 1994.

Roderick, Myers & Linton, Robert F. Linton and Matthew W. Oby, Akron, for appellant.

Dennis Watkins, Trumbull County Pros. Atty., and Patrick F. McCarthy, Asst. Pros. Atty., for appellee.

PER CURIAM.

For a writ of prohibition to issue, the respondent must be about to exercise judicial or quasi-judicial power, the exercise of that power must be unauthorized by law, and refusal of the writ must result in injury for which no other adequate legal remedy exists. State ex rel. Albright v. Delaware Cty. Court of Common Pleas (1991), 60 Ohio St.3d 40, 572 N.E.2d 1387; State ex rel. Lewis v. Warren Cty. Court of Common Pleas (1990), 52 Ohio St.3d 249, 556 N.E.2d 1184.

It is undisputed that Judge Shaker has exercised jurisdiction and that if not restrained he will exercise further judicial power. Ohio Edison argues that Judge Shaker lacks subject-matter jurisdiction over the complaint and that such lack of jurisdiction is so patent and unambiguous as to render immaterial the availability of appeal from the order denying summary judgment. See State ex rel. Butler Cty. Bd. of Commrs. v. Court of Common Pleas (1978), 54 Ohio St.2d 354, 8 O.O.3d 359, 376 N.E.2d 1343; State ex rel. Pearson v. Moore (1990), 48 Ohio St.3d 37, 548 N.E.2d 945.

In Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 573 N.E.2d 655, we found that although the General Assembly has granted the commission exclusive jurisdiction to hear and determine rate and service-related matters, see State ex rel. N. Ohio Tel. Co. v. Winter (1970), 23 Ohio St.2d 6, 52 O.O.2d 29, 260 N.E.2d 827; Ohio Transport, Inc. v. Pub. Util. Comm. (1955), 164 Ohio St. 98, 57 O.O. 108, 128 N.E.2d 22, the basic jurisdiction of the court of common pleas is not diminished in other areas of possible claims against utilities, including pure tort and contract claims. See Milligan v. Ohio Bell Tel. Co. (1978), 56 Ohio St.2d 191, 10 O.O.3d 352, 383 N.E.2d 575 (invasion of privacy); Kohli v. Pub. Util. Comm. (1985), 18 Ohio St.3d 12, 18 OBR 10, 479 N.E.2d 840 (failure to warn); Marketing Research Serv., Inc. v. Pub. Util. Comm. (1987), 34 Ohio St.3d 52, 517 N.E.2d 540 (breach of contract).

Ohio Edison argues that, although plaintiffs' complaint sounds in tort and nuisance, it actually alleges inadequate service. ¹ In State ex rel. The Ohio Company v. Maschari (1990), 51 Ohio St.3d 18, 553 N.E.2d 1356, we considered a similar question in which the basis of the claim was disputed. We held that the trial court had the authority to determine its own jurisdiction in such circumstances and denied the writ. Here, Judge Shaker has made the initial...