Valentin v. Ohio Edison

[Cite as Valentin v. Edison, 2012-Ohio-2437.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PABLO VALENTIN, )
)
PLAINTIFF-APPELLANT, )
)
V. ) CASE NO. 11 MA 93
)
OHIO EDISON, ) OPINION
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Youngstown Municipal
Court of Mahoning County, Ohio
Case No. 10CV103662Y
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Atty. Raymond M. Delost
3685 Stutz Drive, Suite 100
Canfield, Ohio 44406
For Defendant-Appellee Atty. John T. Dellick
26 Market St., Suite 1200
P.O. Box 6077
Youngstown, Ohio 44501-6077
Atty. Michael B. Lindow
76 S. Main St., 15th Floor
Akron, Ohio 44308
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: May 29, 2012
[Cite as Valentin v. Edison, 2012-Ohio-2437.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Pablo Valentin, appeals from a Youngstown
Municipal Court judgment dismissing his case against defendant-appellee, Ohio
Edison Company.
{¶2} On or about September 30, 2010, appellant experienced an electrical
power surge at his Youngstown residence. Appellant claims, as a result of the power
surge, his various electronics were ruined.
{¶3} Acting pro se, appellant filed a small claims lawsuit against appellee
asserting, “Ohio Edison’s wire was faulty, therefore, it sent a power surge through our
property, causing our electronics to blow.”
{¶4} Appellee subsequently filed a Civ.R. 12(B)(1) motion to dismiss arguing
that the Public Utilities Commission of Ohio (PUCO) has the sole authority to hear
and determine electric service complaints from its customers.
{¶5} Appellant retained counsel and filed objections to the magistrate’s
decision.
{¶6} The trial court considered the objections, overruled them, and adopted
the magistrate’s decision.
{¶7} Appellant filed a timely notice of appeal on June 6, 2011.
{¶8} Appellant raises a single assignment of error, which states:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
CONCLUDING THAT THE PUBLIC UTILITY COMMISSION OF OHIO
(PUCO) HAS EXCLUSIVE SUBJECT MATTER JURISDICTION OVER
THE NEGLIGENCE CLAIM BROUGHT BY THE PLAINTIFF AGAINST
THE DEFENDANT, UTILITY COMPANY.
{¶9} By enacting R.C. Title 49, the General Assembly created PUCO to
administer the activities of public utilities. PUCO’s statutorily-granted jurisdiction is
exclusive and reviewable only by the Ohio Supreme Court. Higgins v. Columbia Gas
of Ohio, 136 Ohio App.3d 198, 201, 736 N.E.2d 92 (7th Dist. 2000). PUCO’s
exclusive jurisdiction includes matters involving public utilities, such as rates and
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charges, classifications, and service. State ex rel. The Illum. Co., 97 Ohio St.3d 69,
2002-Ohio-5312, ¶18. The common pleas courts retain subject-matter jurisdiction
only on claims of pure common-law tort and certain contract actions. Id. at ¶20.
{¶10} Appellant argues that his complaint is one in negligence and, therefore,
does not fall within PUCO’s exclusive jurisdiction. Appellant asserts that the
substance of his claim is that appellee was negligent in failing to inspect, repair, and
maintain its electric feed wire that is attached to his house. He urges that PUCO’s
expertise is not required to resolve this claim. Instead, appellant argues that his
claim is like that of any other claim brought against a business that negligently fails to
correct a known, dangerous condition on its property.
{¶11} A trial court's decision on a motion to dismiss under Civ.R. 12(B)(1) for
lack of subject-matter jurisdiction raises questions of law; thus, an appellate court
reviews the decision de novo. Morway v. Durkin, 181 Ohio App.3d 195, 199, 2009-
Ohio-932, 908 N.E.2d 510, ¶18 (7th Dist.).
{¶12} R.C. 4905.26 provides:
Upon complaint in writing against any public utility by any person
* * * that any rate, fare, charge, toll, rental, schedule, classification, or
service * * * or service rendered * * * is in any respect unjust,
unreasonable, unjustly discriminatory, unjustly preferential, or in
violation of law, or that any regulation, measurement, or practice
affecting or relating to any service furnished by the public utility, or in
connection with such service, is, or will be, in any respect
unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly
preferential, or that any service is, or will be, inadequate or cannot be
obtained, * * * if it appears that reasonable grounds for complaint are
stated, the commission shall fix a time for hearing and shall notify
complainants and the public utility thereof.
{¶13} The Ohio Supreme Court has interpreted R.C. 4905.26 to confer
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jurisdiction on PUCO to hear all complaints pertaining to rates and/or service
provided by a public utility. Higgins, 136 Ohio App.3d at 201, citing Kazmaier
Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 573 N.E.2d 655 (1991).
Casting the allegations in the complaint to sound in tort or contract does not confer
jurisdiction upon a trial court when the basic claim is one relating to service, which
only PUCO has jurisdiction to resolve. Higgins, 136 Ohio App.3d at 202. See, also,
DeLost v. First Energy Corp., 7th Dist. No. 07-MA-194, 2008-Ohio-3086, ¶21;
Suleiman v. Ohio Edison Co., 146 Ohio App.3d 41, 45, 764 N.E.2d 1098 (7th Dist.
2001).
{¶14} In determining whether a claim is under PUCO’s exclusive jurisdiction,
we apply the two-question test adopted by the Ohio Supreme Court in Allstate Ins.
Co. v. Cleveland Elec. Illuminating Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893
N.E.2d 824, ¶12-13, quoting Pacific Indemn. Ins. Co. v. Illum. Co., 8th Dist. No.
82074, 2003-Ohio-3954, ¶15:
“First, is PUCO's administrative expertise required to resolve the
issue in dispute? Second, does the act complained of constitute a
practice normally authorized by the utility?”
If the answer to either question is in the negative, the claim is not
within PUCO's exclusive jurisdiction.
{¶15} As to the first question, PUCO’s administrative expertise is required to
resolve the issue in dispute. The issue is whether appellee provided faulty service to
appellant resulting in a power surge. This issue is specifically governed by appellee’s
tariffs, which are filed with and approved by PUCO.
{¶16} Section IV(B) of appellee’s tariff provides in part:
Continuity: The Company will endeavor, but does not
guarantee, to furnish a continuous supply of electric energy and to
maintain voltage and frequency within reasonable limits. The Company
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shall not be liable for damages which the customer may sustain due to
variations in service characteristics or phase reversals.
And Section X(B) of appellee’s tariff provides in part :
Limitation Of Liability: The Company shall not be liable for any
loss, cost, damages or expense that the customer may sustain by
reason of damage to or destruction of any property, including the loss of
use thereof, arising out of, or in any manner connected with,
interruptions in service, variations in service characteristics, high or low
voltage * * * whether such damages are caused by or involve any fault
or failure of the Company or otherwise except such damages that are
caused by or due to the willful and wanton misconduct of the Company.
{¶17} When the plaintiff’s cause of action falls within the parameters of the
utility company’s tariffs, review by a common pleas court or appellate court would
result in usurpation of authority from PUCO and the Ohio Supreme Court. LaForge v.
Cleveland Elec. Illuminating Co., 115 Ohio App.3d 740, 741, 686 N.E.2d 311 (11th
Dist. 1996).
{¶18} Furthermore, in examining a power-surge claim against an electric
company, the Eighth Appellate District has stated:
Here, the plaintiffs argue that CEI is responsible for damages
stemming from two alleged power surges. Plaintiffs' claim calls into
question the manner by which CEI provided electrical service. In
addressing the power surges, it will be necessary to determine whether
CEI's response and correction of the problem complied with industry
standards. The answers to these questions require the expertise of the
PUCO administration because jurors do not have the experience or
understanding regarding the distribution of electricity. The determination
of issues related to applicable laws and regulations, industry practices
and standards, is best accomplished by PUCO with its expert staff
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technicians familiar with the utility commission provisions.
Pro Se Commercial Properties v. Illuminating Co., 8th Dist. No. 92961, 2010-Ohio-
516, ¶11.
{¶19} Based on the above considerations, the answer to the first question (is
PUCO’s expertise required to resolve the dispute in this case?) is yes.
{¶20} As to the second question, the act complained of constitutes a practice
normally authorized by appellee. Appellant’s complaint alleges that appellee’s “wire
was faulty” causing it to send “a power surge” through his property, which damaged
his electronics.
{¶21} What appellant alleges falls under the broad category of “service,”
which is within PUCO’s jurisdiction. Quality of service complaints fall under PUCO’s
jurisdiction. Miles Management Corp. v. First Energy Corp., 8th Dist. No. 84197,
2005-Ohio-1496, ¶12, citing State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102
Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶20. A power surge is a service-
related complaint. Hiener v. Cleveland Elec. Illuminating Co., 11th Dist. No. 95-G-
1948, 1996 WL 495092 (Aug. 9, 1996). Likewise, a period of low voltage, commonly
called a “brownout,” is also service-related. LaForge, 115 Ohio App.3d at 741.
“When one suffers damages related to events that are purely electrical, * * * the claim
is service-related and under PUCO's jurisdiction.” Pro Se Commercial Properties, at
¶15.
{¶22} Appellant claims that at one point in time, too much power was provided
to his home causing damages. In other words, he claims there was a problem with
his service that resulted from a faulty wire and a power surge. Thus, the answer to
the second question (does the act complained of constitute a practice normally
authorized by the utility?) also is yes.
{¶23} Because both questions of the Allstate test are answered in the
affirmative, appellant’s claim is within PUCO’s exclusive jurisdiction. Accordingly,
appellant’s sole assignment of error is without merit.
{¶24} For the reasons stated above, the trial court’s judgment is hereby
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affirmed.
Vukovich, J., concurs.
Waite, P.J., concurs.