Steffen v. General Tel. Co.

• Decision Date: 11 October 1978
• Citation: 14 O.O.3d 111,395 N.E.2d 1346,60 Ohio App.2d 144
• Parties: , 14 O.O.3d 111 STEFFEN et al., Appellants, v. GENERAL TELEPHONE COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

Page 144

60 Ohio App.2d 144

395 N.E.2d 1346, 14 O.O.3d 111

STEFFEN et al., Appellants, v. GENERAL TELEPHONE COMPANY et al., Appellees.

Court of Appeals of Ohio, First District, Butler County.

Oct. 11, 1978.

Syllabus by the Court

Cases involving intentional, wilful and malicious torts committed by a public utility within the course of its business are not within the exclusive jurisdiction of the Public Utilities Commission of Ohio, but may be litigated in the courts.

Baden, Jones, Scheper & Crehan, Hamilton, for appellants.

Edward J. Utz, Cincinnati, for appellee Gen. Tel. Co. of Ohio.

James R. Adams, Cincinnati, for appellee Cincinnati Bell, Inc.

BLACK, Judge.

Plaintiffs appeal from an order dismissing their action, granted for the reason that the trial court had no jurisdiction of the subject matter set forth in the complaint, the amended complaint or the second amended complaint. ^* In its opinion, the trial court stated its conclusions that all the questions raised in the three complaints are about services rendered by the appellee telephone companies, and that the Public Utilities Commission of Ohio had exclusive jurisdiction of all such questions, under State, ex rel. Northern Ohio Telephone Co. v. Winter (1970), 23 Ohio St.2d 6, 260 N.E.2d 827.

It is well established that under a motion to dismiss for failure to state a cause of action filed pursuant to clause (6) of Civ.R. 12(B), the complaint cannot be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. In the instant case, the motion claimed lack of jurisdiction of the subject matter, under clause (1) of the rule, but we hold that a similar principle controls: if under the allegations of the second amended complaint, plaintiffs demonstrated that the court has subject matter jurisdiction, then the second amended complaint was improperly dismissed. Stated otherwise, the question is whether the plaintiff has alleged any cause of action cognizable by the forum.

Our review of the second amended complaint leads us to the conclusion that the trial court was only partially correct. The court had subject matter jurisdiction of those matters set forth in three of the eleven causes of action found in the second amended complaint. Accordingly, we reverse the judgment below and remand this case for further proceedings.

Briefly, plaintiffs allege that they are in the business of real estate sales and that they sought to have installed at their place of business a " foreign exchange telephone," but that the defendant telephone companies failed to provide an adequate and efficient "foreign exchange service." In the first seven causes of action and in the tenth cause of action, they allege negligence in the rendering of services, breaches of contract and of express and implied warranties about service, misrepresentations about service, and failure to provide service. All these allegations clearly have to do with services rendered or to be rendered by the telephone companies in accordance with tariffs filed with and approved by the Public Utilities Commission. These are clearly within the exclusive jurisdiction of the Commission, under Winter, supra, wherein the Supreme Court held that the Commission has exclusive jurisdiction of such matters as the discontinuance of telephone service for nonpayment of amounts due for service. In State, ex rel. Columbia Gas v. Kiroff (1976), 46 Ohio St.2d 397, 348 N.E.2d 705, the determination of the legality of increased rates charged by a public utility for natural gas in an emergency was held to be within the exclusive jurisdiction of the Commission. See, also, North Ridge Invest. Corp. v. Columbia Gas (1973), 49 Ohio App.2d 74, 359 N.E.2d 443, where the complaint was that the defendant public utility company refused to furnish natural gas service after representing that it would be available to plaintiff's residential development.

The additional allegations in the first seven and the tenth causes of action that the telephone companies acted either maliciously, wilfully or intentionally do not change the character of the subject matter of those allegations. All of them have to do with service rendered or to be rendered, matters that are within the exclusive jurisdiction of the Public Utilities Commission and subject to initial complaint under R.C. 4905.26.

However, the allegations set forth in the eighth, ninth and eleventh causes of action of the second amended complaint are of an entirely different nature. Appellants allege, therein, that the telephone companies maliciously and wilfully harassed and discredited them and that the companies tape-recorded and wilfully divulged to others the contents of private telephone conversations, all without the consent or knowledge of the appellants, and all of a nature to cause mental anguish, suffering and humiliation to a person of ordinary sensibilities. These allegations claim the malicious or wilful violation of plaintiffs' rights of privacy.

In the leading case of Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340, the Ohio Supreme Court affirmed an award of damages against a collection agent for harassment, holding as follows in the first and second paragraphs of the syllabus:

"1. The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

"2. An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation...