[Cite as State ex rel. Ohio Edison Co. v. Trumbull Cty. Court of Common Pleas, 2019-Ohio-5313.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO ex rel. OHIO EDISON                       :          PER CURIAM OPINION
COMPANY,
                                                        :
                 Relator,
                                                        :          CASE NO. 2019-T-0062
        - vs -
                                                        :
TRUMBULL COUNTY COURT OF
COMMON PLEAS, et al.,                                   :

                 Respondent.                            :


Original Action for Writ of Prohibition.

Judgment: Petition granted.


John T. Dellick, Harrington, Hoppe & Mitchell, Ltd., 26 Market Street, Suite 1200, P.O.
Box 6077, Youngstown, OH 44501 (For Relator).

Dennis Watkins, Trumbull County Prosecutor, and William J. Danso and Michael J.
Fredericka, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High
Street, N.W., Warren, OH 44481 (For Respondent).



PER CURIAM.

        {¶1}     Relator, Ohio Edison Company (“Ohio Edison”), has filed an original action

seeking a writ of prohibition to prevent respondent, Trumbull County Court of Common

Pleas, from proceeding on a complaint, filed against it by a third party, Double K Kirby

Farms (“Double K”) in Case No. 2019 CV 416. In its petition, Ohio Edison argues the

court of common pleas lacks jurisdiction over a complaint filed against it because it
claims the Public Utility Commission of Ohio (“PUCO”) possesses exclusive jurisdiction

over the allegations, pursuant to R.C. 4905.26. Relator filed a motion to dismiss the

complaint, asserting its jurisdictional argument. Respondent, Trumbull County Court of

Common Pleas, however, after considering the motion and the plaintiff’s memorandum

in opposition, denied the motion. For the reasons that follow, we conclude the Trumbull

County Court of Common Pleas lacks jurisdiction to proceed and accordingly grant Ohio

Edison’s petition.

       {¶2}   Factual and Procedural Background

       {¶3}   In March 2019, Double K filed its complaint in the court of common pleas.

The following allegations were set forth in the complaint:      In April 2017, Double K

observed abnormal behavior in its dairy cows. In October 2017, Double K believed

stray electrical voltage existed on its farm in the form of neutral-to-earth voltages.

Double K contacted Precision Ag Automation, an apparent agricultural engineering

company, to test for stray voltage (the complaint and the parties appear to agree that

“neutral-to-earth voltage” and “stray voltage” identify the same electrical phenomenon).

Pursuant to the test, Precision Ag found excessive voltage on the farm and equipment

damage from low voltage during a “brownout.” Double K subsequently contacted New

Pittsburg Large Animal Clinic to evaluate its cows. The clinic opined the stray electrical

voltage caused substantial damage to its cows. Over 25 cows died from the stray

electrical voltage and another 32 had to be sold for slaughter due to complications from

the voltage. In light of the foregoing, Double K asserted Ohio Edison breached its duty

by failing to provide proper and appropriate electrical voltage and failing to install an




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appropriate device to reduce the neutral-to-earth voltages which caused it damages in

excess of $25,000.

       {¶4}   Ohio Edison moved to dismiss the complaint, arguing Double K’s claim

was actually a service complaint subject to the exclusive jurisdiction of PUCO. Double

K opposed the motion. In its memorandum, Double K noted it had previously filed a

claim with PUCO, but, in that matter, Ohio Edison moved to dismiss its prayer for

monetary damages. PUCO granted the motion. Double K asserted that, because the

prayer for damages was dismissed, the action in tort was properly before the court of

common pleas. Ohio Edison filed a reply brief, asserting Ohio’s public-utility statutes

provide a customer with the ability to have its service claim assessed for a violation, but

the process is two-fold. If the service complaint before PUCO is successful and not

reversed by the Ohio Supreme Court, a claimant may then bring the matter before the

courts to determine whether damages are appropriate. See R.C. 4905.61. The trial

court denied Ohio Edison’s motion, concluding the claim for damages was properly

before it.

       {¶5}   Ohio Edison subsequently filed the instant petition for writ of prohibition.

The matter is before the court on the petition, Ohio Edison’s motion for summary

judgment, as well as respondent’s memorandum in opposition to Ohio Edison’s motion.

       {¶6}   General Governing Law

       {¶7}   Three elements are generally required for a writ of prohibition to issue: the

exercise of judicial power, the lack of authority for the exercise of that power, and the

lack of an adequate remedy in the ordinary course of the law. State ex rel. Elder v.

Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, ¶13. If, however, the absence of




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jurisdiction is patent and unambiguous, a petitioner need not establish the third prong,

the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of

Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, ¶15.

       {¶8}   Ohio Edison has established the first prerequisite for the issuance of the

writ. Respondent, the court of common pleas, has exercised judicial power in the

underlying case by denying Ohio Edison’s motion to dismiss Double K’s complaint for

lack of subject-matter jurisdiction and will continue to exercise judicial power as the

case proceeds. We shall therefore proceed to analyze whether, as Ohio Edison asserts

in its motion for summary judgment, the trial court patently and unambiguously lacks

subject-matter jurisdiction.

       {¶9}    Subject-matter jurisdiction is the power conferred upon a court to hear

and decide a case on the merits. Morrison v. Steiner, 32 Ohio St.2d 86 (1972),

paragraph one of the syllabus. “‘Jurisdiction does not relate to the rights of the

parties, but to the power of the court.’” (Emphasis sic.) State ex rel. Jones v. Suster, 84

Ohio St.3d 70, 75 (1998), quoting Executors of Long’s Estate v. State, 21 Ohio App.

412, 415 (1st Dist.1926).

       {¶10} “The General Assembly has created a broad and comprehensive statutory

scheme for regulating the business activities of public utilities.” Kazmaier Supermarket,

Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 150 (1991). “R.C. Title 49 sets forth a

detailed statutory framework for the regulation of utility service and the fixation of rates

charged by public utilities to their customers.” Id. As part of that framework, the General

Assembly created PUCO, and “empowered it with broad authority to administer and

enforce the provisions of Title 49.” Id.




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       {¶11} “R.C. 4905.26 provides that PUCO shall determine any complaint by any

person against a public utility alleging that any rate charged or service rendered is in

any respect unjust, unreasonable, in violation of law, or inadequate.” Jones v. Ohio

Edison Co., 11th Dist. Ashtabula No. 2014-A-0015, 2014-Ohio-5466, ¶9. The statutory

scheme, consequently, gives PUCO “the right to adjudicate complaints involving

customer rates and services.” Kazmaier, supra, at 151. Further, where PUCO has

jurisdiction as provided by this statute, that jurisdiction is exclusive and only subject to

review by the Supreme Court of Ohio. State ex rel. N. Ohio Tel. Co. v. Winter, 23 Ohio

St.2d 6 (1970), paragraph one of the syllabus. The detailed procedure for filing rate

and/or service complaints set forth in R.C. 4905.26 expresses the intention of the

General Assembly that such powers were to be vested solely in PUCO. Winter,

supra, at 9.

       {¶12} Courts, however, retain limited subject-matter jurisdiction over “pure tort”

claims and certain contract actions involving public utilities. State ex rel. The Illuminating

Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, ¶21.

Therefore, we must examine whether Double K’s claim is subject to the exclusive

jurisdiction of PUCO or is a pure tort claim within the jurisdiction of the common pleas

court. Id. at ¶21. “‘[C]asting the allegations in the complaint to sound in tort * * * is not

sufficient to confer jurisdiction upon a trial court’ when the basic claim is one that the

commission has exclusive jurisdiction to resolve.” Id., quoting Higgins v. Columbia Gas

of Ohio, Inc., 136 Ohio App.3d 198, 202 (7th Dist.2000). Accordingly, courts must look

to the substance of the allegations in the complaint to determine the proper jurisdiction.




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Allstate Ins. Co. v. Cleveland Electric Illuminating Co., 119 Ohio St.3d 301, 2008-Ohio-

3917, ¶9.

       {¶13} Further, while “trial courts determine their own jurisdiction,” such

determinations can be challenged. Id. at ¶11. In Allstate, the Court adopted a two-part

test to assist courts in deciding when a trial court, rather than PUCO, has jurisdiction

over a case involving a public utility alleged to have committed a tort, i.e., a “pure tort.”

Under this test, a court asks (1) whether PUCO’s administrative expertise is required to

resolve the issue in dispute, and (2) whether the act complained of constitutes a

practice normally authorized by the utility. If the answer to either question is “no,” the

claim is one for a pure tort and is not within PUCO’s exclusive jurisdiction. Id. at ¶11-13.

Thus, the answer to both questions must be yes in order for the claim to fall within

PUCO’s jurisdiction.

       {¶14} Analysis

       {¶15} In support of its motion for summary judgment, Ohio Edison argues that

although Double K couched its complaint in terms of negligence, the allegation asserted

a claim arising from Ohio Edison’s alleged failure to provide appropriate electrical

voltage and failure to minimize or eliminate neutral-to-earth voltages - matters which

constitute service complaints which are within the exclusive jurisdiction of PUCO. It

maintains there is no genuine issue of material fact that the expertise of PUCO is

required to resolve the dispute concerning the electrical phenomena relating to the

distribution of electricity of which Double K complains; and, it argues there is no triable

issue regarding whether the distribution of electricity, including the attendant




                                             6
phenomena at the essence of Double K’s complaint, constitute a practice normally

authorized by electric utilities.

       {¶16} I. Is PUCO’s expertise required to resolve the issue in dispute?

       {¶17} The issue of whether Ohio Edison provided faulty service in voltage

maintenance and frequency is expressly governed by Ohio Edison’s tariff on file with

and approved by PUCO. The General Assembly has given PUCO statutory authority to

review and approve tariffs. Migden–Ostrander v. Pub. Util. Comm., 102 Ohio St.3d 451,

2004-Ohio-3924, ¶8, fn. 5. “Public utility tariffs are books or compilations of printed

materials filed by public utilities with, and approved by, [PUCO] that contain schedules

of rates and charges, rules and regulations, and standards for service.” Id.

       {¶18} In Hull v. Columbia Gas of Ohio, 110 Ohio St.3d 96, 2006-Ohio-3666, the

Supreme Court of Ohio held, “‘it is readily apparent that the General Assembly has

provided for commission oversight of filed tariffs, including the right to adjudicate

complaints involving customer rates and services.’” Id. at ¶20, quoting Kazmaier,

supra, at 151.

       {¶19} Section IV(B) of Ohio Edison’s tariff provides:

       {¶20} 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 shall
             not be liable for damages which the customer may sustain due to
             variations in electric service characteristics * * *. (Emphasis sic.)

       {¶21} Moreover, Section X(B) of the tariff provides:

       {¶22} Limitation on Liability. The Company shall not be liable for any
             loss, cost, damage, 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



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              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. (Emphasis sic.)

       {¶23} Claims which “require a consideration of statutes and regulations

administered and enforced by [PUCO]” are outside the jurisdiction of the trial court and

within PUCO’s exclusive jurisdiction. The Illuminating Co., supra, at ¶21.

       {¶24} As noted above, R.C. 4905.26 states that PUCO shall determine any

complaint against a public utility alleging that any service rendered is in any way unjust,

unreasonable, in violation of law, or inadequate. Ohio Edison’s tariffs indicate it will

provide voltage and maintain the same within reasonable limits, but it will not be liable

for damage due to interruptions or variations in service characteristics, or for high or low

voltage absent willful and wanton misconduct.

       {¶25} Double K’s complaint alleges damages resulting from stray or neutral-to-

earth voltage as well as a brownout condition. “Neutral-to-earth voltage is the

measurement at any given time and place of electricity trying to return from where it

came, either through the earth or through the neutral wire. Technically, it is the

measurement of electricity moving through a conductor that has a resistance to remote

earth.” Otte v. Dayton Power & Light Co., 37 Ohio St.3d 33, 34 (1988). A “brownout” is

a period of low voltage. Jones, supra, at ¶30. Ohio Edison supplies voltage, as a

service, and because both neutral-to-earth voltage and a brownout condition are related

to voltage, the matters at issue require consideration of statutes and regulations

administered by PUCO. See The Illuminating Co., supra. Thus, we conclude there is no

genuine issue of material fact that PUCO’s expertise is required to resolve whether the




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voltage complaints at issue were in any way unjust, unreasonable, in violation of law or

inadequate.

        {¶26} II. Do the actions complained of constitute a practice normally

authorized by the utility?

        {¶27} We first point out that this court has previously concluded that a brownout

condition is “clearly service-related.” Laforge v. Cleveland Elec. Illuminating Co., 115

Ohio App.3d 740, 741 (11th Dist.1996). And the tariffs provide (1) Ohio Edison will strive

to provide continuous electrical energy and maintain reasonable frequency and (2) are

not liable for damages due to variations in service characteristics. Hence, there is no

genuine issue of material fact that the circumstances surrounding the brownout

condition constitute a practice normally authorized by Ohio Edison.

        {¶28} Neutral-to-earth voltage presents a more difficult question.         In their

memorandum in opposition to summary judgment, respondent does not directly address

the two prongs of the Allstate test, but argue there is a genuine issue of material fact

relating to the trial court’s jurisdiction because at least one court has concluded “stray

voltage” is not specifically regulated by PUCO regulations and thus is not necessarily a

“service.” State ex re. Ohio Edison Co. v. Morris, 5th Dist. Stark No. CA-6432, 1984 WL

7590.    They further cite a case wherein the trial court exercised jurisdiction over, inter

alia, alleged negligence arising from alleged abnormal stray voltage.         Barr v. Ohio

Edison Co., 9th Dist. Summit No. 16629, 1995 WL 66351 (Feb. 17, 1995).

        {¶29} Initially, it is not clear that the utility company in Barr moved to dismiss

based upon subject-matter jurisdiction. In this respect, that case does not specifically

inform our analysis.




                                             9
         {¶30} Morris, however, does present factual and procedural issues very similar

to this matter. In Morris, the plaintiffs moved for damages, alleging installed electrical

service was improperly grounded and their dairy barn and cattle were severely affected

by stray voltage. The utility company filed a motion to dismiss, alleging the trial court

lacked subject-matter jurisdiction.      The trial court denied the motion and the utility

company filed a petition for writ of prohibition. The utility company argued that the

question of what are standard voltages and whether stray voltage is permissible and, if

so, to what extent is it a “service characteristic” within PUCO’s exclusive jurisdiction. Id.

at *4.     The Fifth District, however, pointed out that PUCO adopted no specific

regulations dealing with stray voltage. As such, the court held the plaintiff’s complaint

“is not a complaint against a public utility charging that service[s] rendered is in any

respect a violation of law within the meaning of R.C. 4905.26.” Id. at *5. The court

therefore determined the trial court did not patently lack jurisdiction and was empowered

to judicially ascertain the legal rights of the parties.

         {¶31} While the facts and issue in Morris are ostensibly the same as those in

this matter, Morris was released well before the Ohio Supreme Court adopted the

Allstate test and, of some import, its holding is not binding on this court.             We

consequently find the analysis of the Morris court was unduly narrow and unnecessarily

rigid, especially in light of the broad and comprehensive nature of the statutory scheme

regulating utilities. While the tariffs do not specifically address stray voltage, they do

generally address the provision and regulation of voltage, of which stray voltage is a

characteristic. “[T]he commission with its expert staff technicians familiar with the utility

commission provisions” is in the best position to resolve issues relating to utility service




                                               10
and its characteristics. Kazmaier, supra, at 153; see also Section IV(B), Ohio Edison

tariff; The Illuminating Co., supra. While stray voltage may not be practically viewed as a

“service,” i.e., the utility company does not endeavor to provide stray voltage, per se;

still, stray voltage is a consequence of a service and, as a result, is a service

characteristic within the purview of the tariffs.      We therefore disagree with the

conclusion in Morris, which essentially held that because the tariffs do not directly speak

to the specific phenomena of stray voltage, it is not a matter within PUCO’s exclusive

jurisdiction.

       {¶32} Moreover, in Jones, supra, this court pointed out that “‘“[w]hen one suffers

damages related to events that are purely electrical, * * * the claim is service-related

and under PUCO’s jurisdiction.”’” Id. at ¶30, quoting Valentin v. Ohio Edison, 7th Dist.

Mahoning No. 11 MA 93, 2012-Ohio-2437, ¶12, Pro Se Commercial Properties v.

Illuminating Co., 8th Dist. Cuyahoga No. 92961, 2010-Ohio-516, ¶15.           The Jones,

Valentin, and Pro Se cases each addressed situations in which a power surge occurred

and the courts concluded such “purely electrical” events were within the exclusive

jurisdiction of PUCO. Laforge, supra, addressed a period of low voltage, a brownout,

and this court concluded such an event was also within PUCO’s exclusive jurisdiction.

Similar to a power surge or a low voltage event, stray voltage is a “purely electrical”

event. We therefore conclude stray voltage is a characteristic of the service provided by

Ohio Edison and thus falls squarely within the jurisdiction of PUCO. Accordingly, there

is no genuine issue of material fact that the actions complained of involve practices

normally authorized by Ohio Edison.




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       {¶33} One final point requires attention. Even though the trial court does not

have jurisdiction over the issue of whether a violation has occurred, the court of

common pleas does possess jurisdiction over the issue of damages if PUCO finds a

violation.   Specifically, if PUCO determines a violation occurred, R.C. 4905.61

authorizes a suit for treble damages against the utility company. In Milligan v. Ohio bell

Tel. Co., 56 Ohio St.2d 191 (1978), the Supreme Court held: “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 Chapters 4901, 4903, 4905, 4907, 4909, 4921 or 4925, or an order

of the Commission.” Id. at paragraph one of the syllabus. Accordingly, an allegation

that a utility service is unjust, unreasonable, in violation of the law, or inadequate must

be first heard by PUCO; if PUCO determines a violation occurs, the prevailing party may

file a complaint for treble damages, per R.C. 4905.61, because PUCO has no power to

grant monetary damages under that statute. Milligan, supra; see also State ex rel.

Dayton Power & Light Co. v. Kistler, 57 Ohio St.2d 21, 23 (1979) (“‘Bringing suit for

treble damages against a utility, therefore is dependent upon a finding that there was a

violation of a specific statute * * * or an order of the commission. Because such finding

is within the exclusive jurisdiction of the commission, * * * 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.’”)

       {¶34} This bifurcated process was the basis for Ohio Edison’s motion to dismiss

the damages aspect of Double K’s complaint that was originally filed before PUCO.




                                            12
PUCO granted dismissal of that aspect of the complaint, but before it could hear the

allegations vis-à-vis Double K’s service complaints, the complaint was dismissed and

filed in the lower court.

       {¶35} Conclusion

       {¶36} In light of the foregoing analysis, we conclude there is no genuine issue of

material fact that respondent patently and unambiguously lacks jurisdiction to preside

over Double K’s complaint. Ohio Edison’s petition for writ of prohibition is therefore

granted.


CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., MARY JANE TRAPP, J.,
concur.




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