[Cite as Brown v. E. Ohio Gas Co., 2011-Ohio-6443.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96815




                    BRUCE ANDREW BROWN, ET AL.
                                                            PLAINTIFFS-APPELLANTS

                                                      vs.

                    THE EAST OHIO GAS CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-743533

        BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: December 15, 2011
FOR APPELLANTS

Bruce Andrew Brown, pro se
820 West Superior Avenue
Suite 840
Cleveland, OH 44113

Attorney for B. Andrew Brown & Associates, LLC

Jason Ralls
11811 Shaker Blvd.
Suite 420
Cleveland, OH 44120

ATTORNEYS FOR APPELLEES

Matthew R. Rechner
Mary K. Alexander
Richard W. Cline
Michael L. Snyder
Richard D. Summers
McDonald Hopkins LLC
600 Superior Avenue, East
Suite 2100
Cleveland, OH 44114



SEAN C. GALLAGHER, J.:

       {¶ 1} Appellants Bruce Andrew Brown and B. Andrew Brown & Associates,

LLC (collectively “appellants”), appeal the decision of the trial court in Cuyahoga County

Case No. CV-743533 in which the trial court granted The East Ohio Gas Company, Inc.’s

(“EOG”) motion to dismiss pursuant to Civ.R. 12(B)(6). For the following reasons, we

affirm the decision of the trial court.
        {¶ 2} In April 2010, appellants filed a complaint in Cuyahoga County Case No.

CV-724016 against Suzanne Charlton, alleging that she failed to fulfill her fiduciary

duties as Brown’s attorney in fact. Appellants unsuccessfully sought to file a second

amended complaint, which included a claim against EOG for negligently terminating gas

services.     Appellants filed a separate action, Case No. CV-743533, to assert their claim

against EOG.

        {¶ 3} In December 2009, Charlton sent a written request to discontinue gas

service to a property (“Penfield property”) owned by Brown & Associates.                                       The

gas-service account was in Brown’s name.                       EOG honored Charlton’s request and

terminated gas service to the Penfield property, which was heated by a gas-powered

furnace.     The water service remained active despite the lack of heat in the property.                        As

expected, the home’s water pipes burst causing damage.                       Appellants alleged that EOG

was negligent in discontinuing the gas service at the request of a third party. The trial

court granted EOG’s motion and dismissed appellants’ complaint with prejudice. 1

Appellants timely appealed, raising one assignment of error, which provides as follows:

“The trial court erred, as a matter of law, by granting a dismissal in favor of the

defendant-appellee, [EOG], pursuant to Rule 12(B)(6), Ohio Rules of Civil Procedure.”

For the following reasons, appellants’ sole assignment of error is overruled.




        1
         We note that appellants’ complaint also alleged claims against Charlton that were dismissed pursuant to a
settlement.
       {¶ 4} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the

material allegations of the complaint as true and make all reasonable inferences in favor

of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 280, 2005-Ohio-4985,

834 N.E.2d 791. For a defendant to prevail on the motion, it must appear from the face

of the complaint that the plaintiff can prove no set of facts that would justify a court in

granting relief. Id.

       {¶ 5} EOG moved to dismiss the complaint solely on the grounds that appellants

alleged, in the proposed second amended complaint filed in Case No. CV-724016, that

Charlton was appellants’ attorney in fact, reasoning that EOG was justified in relying on

Charlton’s request as appellants’ agent.    EOG attached the proposed second amended

complaint as an exhibit to its motion to dismiss. We need not address the issues argued

by the parties.   The dispositive issue is whether the trial court had subject matter

jurisdiction over the claim asserted by appellants against EOG.

       {¶ 6} That the trial court relied on Civ.R. 12(B)(6) rather than Civ.R. 12(B)(1),

lack of subject matter jurisdiction, in dismissing appellants’ complaint is irrelevant to our

discussion. Appellate courts may sua sponte consider subject matter jurisdiction even if

not raised in the lower courts. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79

Ohio St.3d 543, 1997-Ohio-366, 684 N.E.2d 72; Civ.R. 12(H)(3).
       {¶ 7} R.C. 4905.22 confers exclusive jurisdiction over various matters involving

public utilities to the Public Utilities Commission of Ohio (“PUCO”), effectively denying

jurisdiction to all Ohio courts over claims, such as those dealing with rates and charges,

classifications, and service. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102

Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶ 16. This “does not diminish ‘the

basic jurisdiction of the court of common pleas * * * in other areas of possible claims

against utilities, including pure tort and contract claims.’” Allstate Ins. Co. v. Cleveland

Elec. Illuminating Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 6, citing

State ex rel. Ohio Edison Co. v. Shaker (1994), 68 Ohio St.3d 209, 211, 625 N.E.2d 608.

       {¶ 8} The    threshold   issue   is,   therefore,   whether   appellants’   claim is

service-related or whether it involves a contract or common-law tort claim. Appellants

alleged that EOG was negligent in terminating gas service to the Penfield property;

however, jurisdiction is not conferred based solely on pleadings.     Allstate Ins. Co., 119

Ohio St.3d at 303, citing State ex rel. Columbia Gas of Ohio, 102 Ohio St.3d 349, ¶ 19.

Generally, termination of service by a public utility is considered a service-related matter

within the exclusive initial jurisdiction of the PUCO. Higgins v. Columbia Gas of Ohio,

Inc. (2000), 136 Ohio App.3d 198, 202, 736 N.E.2d 92.

       {¶ 9} While generally service related, the termination of service must be

determined through a case specific inquiry. Allstate Ins. Co., 119 Ohio St.3d 301. In

Allstate, the Ohio Supreme Court adopted a two-part test to determine whether the

allegations advance service-related or common-law tort claims: whether the PUCO’s
administrative expertise is required to resolve the issue in dispute and whether the act

complained of constitutes a practice normally authorized by the utility.   Id.

       {¶ 10} In the current case, appellants claim that EOG negligently terminated the

gas services to the Penfield property based on Charlton’s request, despite the fact that the

gas account was in Brown’s name and Brown & Associates owned the Penfield property.

 O.A.C. 4901:1-18-03 provides the procedures that must be followed and the conditions

under which a utility may disconnect service to residential customers.           The owner

moving from the residence is one of the enumerated conditions.                      O.A.C.

4901:1-18-03(C).

       {¶ 11} In a similar situation, this court addressed whether the termination of

services authorized by O.A.C. 4901:1-18-03 was a service-related or common-law tort

claim. Rafalski v. Dominion E. Ohio Co., Cuyahoga App. No. 95908, 2011-Ohio-2931.

In Rafalski, the utility terminated gas services because of the customer’s refusal to allow

access to the gas meter located inside the property. Refusing access to inspect the meter

is another condition under which the utility may terminate gas services.            O.A.C.

4901:1-18-03(E). This court held that the “claims that [the utility] and its employees

acted unreasonably [in terminating services] must be evaluated in light of complex state,

federal, and administrative law regarding the termination of service, requiring [the

PUCO’s] expertise to evaluate the claims.”        Rafalski, 2011-Ohio-2931, at ¶ 15-16.

This court further held that the termination of utility service is a practice normally

authorized by the utility provider under Ohio law.   Id.; see, also, State Farm Fire & Cas.
Co. v. Century 21 Arrow Realty, Cuyahoga App. Nos. 87108 and 87081,

2006-Ohio-3967, ¶       21 (holding that because the claim required “a review of the

common practices used by [the utility] in shutting off and restarting service and the

adequacy of those practices, resolution of the matter is a service-related issue that belongs

under the PUCO’s exclusive jurisdiction”).

       {¶ 12} Appellants claimed that EOG was negligent in terminating service based on

a third party’s request.   The reasonableness of terminating appellants’ services based on

the third-party request must be evaluated through the expertise of the PUCO based on a

myriad of complex regulations and laws.          In addition, R.C. 4933.122 and O.A.C.

Chapter 4901:1-18 provide the framework within which the utility provider must operate

when terminating a residential customer’s service.      Therefore, the termination of gas

services is a matter normally authorized by the utility provider.             See Rafalski,

2011-Ohio-2931, at ¶ 15-16. We find that appellants’ substantive claim against EOG is

service-related and jurisdiction is exclusively conferred on the PUCO.       The trial court

did not have subject-matter jurisdiction over appellants’ claim against EOG.

       {¶ 13} Accordingly, the trial court did not err in dismissing appellants’ complaint

with prejudice.    Appellants’ sole assignment of error is overruled.        We affirm the

decision of the trial court.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



       SEAN C. GALLAGHER, JUDGE

       KENNETH A. ROCCO, J., CONCURS;
       MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE OPINION



       MELODY J. STEWART, P.J., DISSENTING:
       {¶ 14} I respectfully dissent from the majority’s decision to affirm the trial court’s

dismissal of Brown’s complaint on jurisdictional grounds.

       {¶ 15} This case comes to us on appeal from a Civ.R. 12(B)(6) motion to dismiss

and the facts alleged in the complaint are simply insufficient to support the majority’s

decision to dismiss on jurisdictional grounds.       As the majority notes, dismissal on

jurisdictional grounds requires a finding that “the act complained of constitutes a practice

normally authorized by the utility.”     The majority notes that one of the enumerated

conditions allowing for the disconnection of utility services is whether the owner has

moved from the residence.       The complaint in the case alleges only that Charlton,

Brown’s former spouse, resided at the property. It says nothing about whether Brown

himself resided there.   The majority appears to deduce that Brown did not live at the

residence, but that fact is not alleged and at this stage in the proceedings we are obligated
to make all favorable inferences for Brown as the non-moving party. The majority goes

beyond the four corners of the complaint to justify dismissal, so I must dissent.
