Sunoco, Inc. (R & M) v. Toledo Edison Co. , 129 Ohio St. 3d 397 ( 2011 )

Cupp, J.,

dissenting.

{¶ 92} I remain unconvinced that the term “arrangement,” as used in the Sunoco, Inc. (R & M) — Toledo Edison Company electric-service agreement, includes within its meaning the duration of the contract such that Sunoco may utilize the longer duration of the BP Oil Company — Toledo Edison contract to extend the duration of its own special contract over the objection of Toledo Edison.

{¶ 93} The language employed in the Sunoco-Toledo Edison special contract uses the terminology “arrangement, rates or charges” to describe what provisions in Toledo Edison special contracts with other customers Sunoco may take advantage of.

{¶ 94} R.C. 4905.31, which permits such special contracts between public utilities and their customers upon approval of the Public Utilities Commission of Ohio (“PUCO”), includes an illustrative list of such “arrangement^].” None of them involve the duration of a special contract. Rather, it is clear that they involve conditions of service, as well as rates and charges. Because the SunocoToledo Edison contract already separately uses the terminology “rates and charges,” it is reasonable to conclude that the plain meaning of the word “arrangement,” as used in the special Sunoco-Toledo Edison contract, necessarily means something akin to conditions of service and similar matters.

{¶ 95} Moreover, the PUCO, which must approve these special contracts, has also construed the term “arrangement” to mean something other than duration of the contract. Because of the oversight that the statute grants the PUCO over these contracts, and because the PUCO must approve the special contracts before they can become effective, it is evident that the PUCO has special expertise in this matter. I would defer to the PUCO’s determination, in which it has used its special expertise, that the term “arrangement” does not include the duration of the special contract such that Sunoco may extend the length of its own contract with Toledo Edison based upon the length of BP’s special contract with Toledo Edison.

{¶ 96} Therefore, I respectfully dissent.

O’Donnell, J., concurs in the foregoing opinion.