[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
OHIOTELNET.COM, INC., ET AL                          :       Hon. Patricia A. Delaney, P.J.
                                                     :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellant          :       Hon. William B. Hoffman, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2012-CA-29
WINDSTREAM OHIO, INC.                                :
                                                     :
                     Defendant-Appellee              :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Licking County Court
                                                         of Common Pleas, Case No. 11CV00485


JUDGMENT:                                                Affirmed




DATE OF JUDGMENT ENTRY:                                  December 14, 2012



APPEARANCES:

For Plaintiffs-Appellants                                For Defendant-Appellee

JAMES COOPER                                             WILLIAM ADAMS
MATTHEW J. KUNSMAN                                       Bailey Cavalieri LLC
Morrow, Gordon & Byrd, Ltd                               10 West Broad Street, Suite 2100
33 W. Main Street, P.O. Box 4190                         Columbus, OH 43215
Newark, OH 43058-4190
[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]


Gwin, J.,

          {¶1}   Plaintiffs Ohiotelnet (OTN) and Midwest Service Management (MSM)

appeal two judgments, a partial dismissal and a summary judgment, of the Court of

Common Pleas of Licking County, Ohio, finding lack of jurisdiction. Defendant-appellee

is Windstream Ohio, Inc. formerly known as ALLTEL Ohio, Inc. Appellants assign two

errors:

          {¶2}   “I. THE TRIAL COURT ERRED BY GRANTING WINDSTREAM'S

MOTION TO DISMISS BECAUSE THE TRIAL COURT HAD SUBJECT MATTER

JURISDICTION OVER THE CLAIMS IN APPELLANTS' COMPLAINT.

          {¶3}   “II. THE TRIAL COURT ERRED IN GRANTING WINDSTREAM'S

MOTION FOR SUMMARY JUDGMENT BECAUSE SEVERAL GENUINE ISSUES OF

MATERIAL FACT EXIST AND REASONABLE MINDS CANNOT COME TO BUT ONE

CONCLUSION IN FAVOR OF WINDSTREAM.”

          {¶4}   The record indicates Windstream, the successor in interest of ALLTEL

Ohio, Inc. is an Ohio public utility providing wholesale telephone, telecommunications,

and broadband services. Windstream is subject to various state and federal laws and

regulations, including marketing opening provisions and tariffs. OTN is an Ohio

corporation that provides local telephone service to Licking County, Ohio. MSM is an

Ohio corporation which provides telecommunications and information services

technology.

          {¶5}   OTN entered into an agreement with Windstream for the interconnection

of the parties’ telecommunications networks within the state of Ohio. Windstream was to

provide wholesale services to OTN, which in turn would supply services to local
Licking County, Case No. 2012-CA-29                                                         3


customers. Subsequently, the parties have engaged in billing disputes, leading to this

action as well as an action filed with the PUCO. At the time of this writing, an appeal

from the decision of the PUCO was pending before the Ohio Supreme Court.

       {¶6}    In its judgment entry of August 30, 2011, the court found appellants raised

four claims.    The first claim alleges breach of the interconnection agreement and

includes statements that the court found are presumably meant to allege interference

with the business relationship.    The second claim alleges Windstream had made false

statements to OTN’s customers, inducing them to terminate their business relationships

with OTN. The court presumed these allegations were intended to state a claim for

interference with business relationships, although they were not labeled as such. The

trial court characterized the third claim as a claim for breach of the interconnection

agreement, various unfair billing practices, prices, and service complaints. The court

found the fourth claim alleged Windstream breached an agreement with MSM. In the

August 30, 2011 entry, the court dismissed appellants’ first, second and third claims, but

found under the allegations set forth, it could not determine whether the fourth claim

was a pure contract claim over which it could take jurisdiction. Accordingly, the court did

not dismiss the fourth claim at that time.

       {¶7}    Subsequently, on February 27, 2012, the trial court found the fourth claim

must also be dismissed for lack of jurisdiction.

                                                   I.

       {¶8}    In their first assignment of error, appellants argue the trial court should not

have dismissed claims one, two and three because it had jurisdiction over the matter.
Licking County, Case No. 2012-CA-29                                                         4


Appellants correctly note this court reviews the issue de novo because it involves a

question of law. Helfrich v. City of Patalaska, 5th Dist. No. 02-CA-38, 2003-Ohio-847.

       {¶9}   R.C. 4905.26 confers exclusive jurisdiction on the PUCO to review any

service rendered by a public utility to determine if it is unjust or unreasonable, or

violates the law. PUCO also has exclusive jurisdiction over complaints regarding the

termination of service by public utilities. The Supreme Court has held, however, that

courts retain limited subject matter jurisdiction over a matter that is pure common-law

tort or contract action involving utilities that are regulated by the PUCO. State ex rel.

Illuminating Company v. Cuyahoga County Court of Common Pleas, 97 Ohio St. 3d 69,

(2002). In cases involving public utilities, jurisdiction is not conferred based solely on the

pleadings. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St. 3d 349,

2004-Ohio-3208, 810 N.E.2d 953, ¶ 19.

        {¶10} The Supreme Court has set out a test courts should apply to determine

whether the PUCO has exclusive jurisdiction. “‘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.”         Allstate Insurance

Company v. Cleveland Electric Illuminating Company, 119 Ohio St. 3d 301, 2008-Ohio-

3917, 893 N.E.2d 824 ¶5.

       {¶11} The Allstate opinion sets out examples of common law claims over which

the common pleas court has jurisdiction: Milligan v. Ohio Bell Tel. Co., 56 Ohio St.2d

191, 195, 383 N.E.2d 575 (1978) (claim that the telephone company invaded its

customer's privacy was actionable in common pleas court); Kohli v. Pub. Util. Comm.,
Licking County, Case No. 2012-CA-29                                                    5


18 Ohio St.3d 12, 14, 18 OBR 10, 479 N.E.2d 840 (1985) (failure to warn landowners

of dangers regarding voltage can be litigated in common pleas court.) The Supreme

Court also cautioned that the PUCO is not a court and has no power to judicially

ascertain and determine legal rights and liabilities.

       {¶12} The court found OTN’s contract claims and tort claims were not pure

common-law claims, but had to do with providing services that were regulated by the

PUCO. We agree with the trial court appellants’ claims are subject to the PUCO’s

exclusive jurisdiction.

       {¶13} The first assignment of error is overruled.

                                                 II.

       {¶14} In their second assignment of error, appellants argue the court improperly

awarded summary judgment in favor of Windstream because there are genuine issues

of material fact, and because reasonable minds could come to different conclusions.

      {¶15}    In finding the matter was appropriate for summary judgment, the trial

court found the disputes related to practices authorized by the utility, namely providing

lines and services. The court found the issues of tariffs are regulated by the PUCO, and

require the expertise of the PUCO to construe.

      {¶16}    We agree all of appellants’ causes of action are directly related to the

provision of utility services, which is vested exclusively in the PUCO

       {¶17} The second assignment of error is overruled.
Licking County, Case No. 2012-CA-29                                              6


      {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman J., concur

                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY


                                         _________________________________
                                          HON. WILLIAM B. HOFFMAN



WSG:clw 1119
[Cite as Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2012-Ohio-5969.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


OHIOTELNET.COM, INC., ET AL                            :
                                                       :
                         Plaintiffs-Appellants         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
WINDSTREAM OHIO, INC.                                  :
                                                       :
                                                       :
                        Defendant-Appellee             :       CASE NO. 2012-CA-29




   For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Licking County, Ohio, is affirmed. Costs to appellants.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. PATRICIA A. DELANEY


                                                           _________________________________
                                                           HON. WILLIAM B. HOFFMAN
