[Cite as Sunoco, Inc. (R&M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720.]




   SUNOCO, INC. (R&M), APPELLANT, v. TOLEDO EDISON COMPANY ET AL.,
                                      APPELLEES.
                [Cite as Sunoco, Inc. (R&M) v. Toledo Edison Co.,
                       129 Ohio St.3d 397, 2011-Ohio-2720.]
Public utilities — Special contracts and reasonable arrangements in electric-
        service contracts — Most-favored-nation clauses — Commission
        misconstrued the language of the clause — Order reversed.
   (No. 2009-0880 — Submitted February 15, 2011 — Decided June 9, 2011.)
       APPEAL from the Public Utilities Commission, No. 07-1255-EL-CSS.
                                 __________________
        MCGEE BROWN, J.
                                      Introduction
        {¶ 1} Sunoco, Inc. (R&M) owns and operates petroleum-refining
facilities in several states, including Oregon, Ohio. Sunoco purchases electric
service for its Oregon facility from the Toledo Edison Company, intervening
appellee.
        {¶ 2} This case involves a contract between Sunoco and Toledo Edison
for the sale of electricity. The contract is a “special contract,” approved by
appellee Public Utilities Commission of Ohio (“PUCO” or “commission”)
pursuant to R.C. 4905.31, which permits “reasonable arrangement[s]” between
public utilities and their customers.            Generally, such contracts include
arrangements that differ from the standard rate schedules and are often tailored to
a specific customer’s service.
        {¶ 3} The case also concerns a contract between BP Oil Company and
Toledo Edison for the sale of electricity. BP owns and operates a competing
refinery located adjacent to Sunoco’s refinery. Both the Sunoco and BP contracts
                              SUPREME COURT OF OHIO




contain clauses generally called “most favored nation” clauses. These clauses –
titled “Comparable Facility Price Protection” – allow Sunoco and BP to utilize
any “arrangement, rates or charges” for their facilities that Toledo Edison has
given to the other.
       {¶ 4} The sole issue in this case is whether Sunoco could invoke the
most-favored-nation clause to extend the duration of its contract with Toledo
Edison to match the duration of BP’s contract with Toledo Edison. If the clause
can be used to extend the contract, then Sunoco would pay the same rate that BP
paid for electric service from February 2008 until December 31, 2008. If the
contract is not extended, Sunoco would be obligated to pay Toledo Edison over
$13 million in higher electric bills.
       {¶ 5} The commission found that the plain language of the most-
favored-nation clause did not allow Sunoco to extend the duration of its contract
to match the duration of BP’s contract. We find that the commission committed
several errors in construing the language of the most-favored-nation clause. As a
result, we reverse the decision of the commission and render judgment in favor of
Sunoco.
                                        Facts
       {¶ 6} Sunoco, Inc. (R&M) filed a complaint in 2007 against Toledo
Edison in the Public Utilities Commission of Ohio. In proceedings before the
commission, the parties filed joint stipulations of facts, which include the
following information.
       {¶ 7} In 1996, Toledo Edison entered into an electric-service contract
with Sunoco. Also in 1996, Toledo Edison entered into a similar contract with
BP, hereinafter referred to as “the BP Agreement” or “the 1996 Agreement.”
The BP Agreement provided that it would remain in effect until June 2006.
       {¶ 8} On May 17, 1999, Sunoco and Toledo Edison entered into an
electric-service agreement (the “Sunoco Agreement” or “the 1999 Agreement”),




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                                 January Term, 2011




which replaced the 1996 Sunoco-Toledo Edison contract. The Sunoco Agreement
is a special contract authorized by the PUCO pursuant to R.C. 4905.31. Under the
terms of the special contract, Sunoco was entitled to pricing for electric service
that was below standard tariff rates. The Sunoco Agreement provided that it
would remain in effect through June 2006 – the same date as the BP Agreement.
          {¶ 9} The Sunoco Agreement and the BP Agreement contained identical
most-favored-nation clauses. Generally, Sunoco and BP could utilize the clause
to obtain a benefit – in the form of an “arrangement, rates or charges” – that
Toledo Edison had given the other. In each of these agreements, the clause was
titled “Comparable Facility Price Protection.” No one disputes that Sunoco and
BP are comparable facilities as that term is defined in the most-favored-nation
clause.
          {¶ 10} In late 1999, the General Assembly enacted legislation that
restructured Ohio’s electric-utility industry to allow retail customers to buy
electricity from someone other than their local electric company.              See
Am.Sub.S.B. No. 3, 148 Ohio Laws, Part IV, 7962. Codified as R.C. Chapter
4928, the legislation was commonly known as “S.B. 3.” What followed was a
series of cases at the PUCO involving Toledo Edison and other electric utilities in
which the PUCO attempted to ease the transition from a regulated rate structure to
a market-rate structure.     See the electric-transition-plan (“ETP”) case, In re
Application of Ohio Edison Co. (July 19, 2000), PUCO No. 09-1212-EL-ETP;
and the rate-stabilization-plan (“RSP”) case, In re Application of Ohio Edison Co.
(Oct. 28, 2003), PUCO No. 03-2144-EL-ATA, in which the PUCO allowed
Toledo Edison and its large customers to extend the terms of their pre-S.B. 3
service contracts.
          {¶ 11} The first extension was proposed through a joint stipulation filed
by Toledo Edison and other parties to Toledo Edison’s ETP case. The electric-
transition-plan stipulation provided that each electric-service customer that had



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entered into a special contract with Toledo Edison would be given a one-time
opportunity to continue, cancel, or extend the terms of its special contracts,
provided that those customers gave Toledo Edison timely notice. As was required
by the electric-transition-plan stipulation and the commission’s order approving
that stipulation, Toledo Edison gave notice to each special-contract customer of
the option to extend the duration of its contract. Sunoco elected to extend the
terms of its 1999 Agreement with Toledo Edison. Likewise, BP elected to extend
the terms of its 1996 Agreement with Toledo Edison.1
        {¶ 12} The next opportunity to extend occurred in Toledo Edison’s RSP
case. In that case, the commission again approved a joint stipulation filed by
Toledo Edison and other parties allowing Toledo Edison’s customers to extend
the term of any special contract “upon the request of the customer, or its agent,
received within 30 days of the Commission’s order in this case.”                   However,
unlike in the ETP case, the stipulation and the PUCO’s order in the RSP case did
not require Toledo Edison to notify its contract customers of the opportunity to
extend, and Toledo Edison did not directly communicate with Sunoco, BP, or any
other contract customer regarding this option. Nevertheless, within that 30-day
window, BP requested that Toledo Edison extend the 1996 BP Agreement, which
Toledo Edison agreed to do. Sunoco did not submit a request to Toledo Edison to
extend the Sunoco Agreement.
        {¶ 13} A final stipulated contract extension was approved in Toledo
Edison’s rate-certainty-plan (“RCP”) case, In re Application of Ohio Edison Co.,
PUCO No. 05-1125-EL-ETA, a case that is still open. The stipulation in the RCP
case provided that the special contracts that were extended under the RSP case —
such as the BP Agreement — would continue in effect until December 31, 2008.
The stipulation further provided that special contracts extended under the ETP


1. The contract extensions were not for a specific date but depended instead upon the date that
Toledo Edison could no longer collect regulatory transition charges.




                                              4
                                January Term, 2011




case, but not extended under the RSP case – such as the Sunoco Agreement –
would continue in effect only until February 2008. Thus, Sunoco’s agreement
was scheduled to expire ten months before BP’s agreement.
       {¶ 14} On or about May 16, 2007, Toledo Edison informed Sunoco that
the Sunoco Agreement would terminate in February 2008.
       {¶ 15} On November 13, 2007, Sunoco sent a letter to Toledo Edison
stating that Sunoco “is exercising its right under the [Sunoco] Agreement to
utilize the BP Oil Company arrangement including, in particular, the term of that
arrangement which has been extended until December 31, 2008” and disputing
Toledo Edison’s right to terminate the Sunoco Agreement in February 2008.
Sunoco invoked the most-favored-nation clause in its 1999 Agreement with
Toledo Edison as evidence that the duration of Sunoco’s agreement must match
the duration of the BP Agreement.
       {¶ 16} On November 16, 2007, Toledo Edison responded with a letter to
Sunoco stating that it has “a different interpretation of the impact of the provision
of the contract,” disputing that Sunoco had the right to extend the term of the
Sunoco Agreement until December 31, 2008.
       {¶ 17} On December 6, 2007, Sunoco filed a complaint with the
commission against Toledo Edison under R.C. 4905.26.            Sunoco challenged
Toledo Edison’s refusal to extend the duration of the Sunoco Agreement to
December 31, 2008. The complaint alleged that if the agreement was terminated
in February 2008, as Toledo Edison intended, Sunoco’s electric bills would be
“millions of dollars higher,” and Sunoco would “operate at a competitive
disadvantage to the adjacent BP facility.”
       {¶ 18} On February 20, 2008, Sunoco agreed to pay into an escrow
account the difference between what Sunoco and Toledo Edison alleged should be
the cost of Sunoco’s electric service between its February 2008 billing date and
December 31, 2008.



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                            SUPREME COURT OF OHIO




       {¶ 19} On February 19, 2009, the commission issued its order denying
Sunoco’s complaint. The commission found that the most-favored-nation clause
was a price-protection provision that was limited in its application to rates and
charges for electrical service. Accordingly, the commission held that Sunoco had
not provided sufficient evidence to show that the most-favored-nation clause
allowed Sunoco to extend the duration of its contract to December 31, 2008, to
match the termination date of the BP agreement.
       {¶ 20} Sunoco filed a timely application for rehearing. The commission
denied Sunoco’s application.
       {¶ 21} Sunoco appealed to this court, raising four propositions of law.
For the reasons discussed below, we sustain propositions of law Nos. 1, 3, and 4
and reverse the commission’s order.
                               Standard of Review
       {¶ 22} “R.C. 4903.13 provides that a PUCO order shall be reversed,
vacated, or modified by this court only when, upon consideration of the record,
the court finds the order to be unlawful or unreasonable.”         Constellation
NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820
N.E.2d 885, ¶ 50. We will not “ ‘reverse or modify a PUCO decision as to
questions of fact where the record contains sufficient probative evidence to show
[that] the PUCO’s determination is not manifestly against the weight of the
evidence and is not so clearly unsupported by the record as to show
misapprehension, mistake, or willful disregard of duty.’ ” Monongahela Power
Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶
29, quoting AT&T Communications of Ohio, Inc. v. Pub. Util. Comm. (2000), 88
Ohio St.3d 549, 555, 728 N.E.2d 371. “[T]he appellant bears the burden of
demonstrating that the commission’s decision is against the manifest weight of
the evidence or is clearly unsupported by the record.” Id.




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                                January Term, 2011




       {¶ 23} Although “we have complete and independent power of review as
to all questions of law” in appeals from the PUCO, Ohio Edison Co. v. Pub. Util.
Comm. (1997), 78 Ohio St.3d 466, 469, 678 N.E.2d 922, we have explained that
we may rely on the expertise of a state agency in interpreting a law where “highly
specialized issues” are involved and “where agency expertise would, therefore, be
of assistance in discerning the presumed intent of our General Assembly.”
Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St.2d 108, 110, 12
O.O.3d 115, 388 N.E.2d 1370.
                                      Analysis
                        A. Sunoco’s Proposition of Law No. 1
       {¶ 24} In its first proposition of law, Sunoco contends that the
commission erred when it found that the plain language of the most-favored-
nation clause in the Sunoco Agreement did not allow Sunoco to extend the
duration of its contract to make it identical to the BP Agreement. We agree. The
commission’s interpretation of the most-favored-nation clause was unlawful and
unreasonable for the following reasons.
             1. The PUCO erred in considering the title of the clause
       {¶ 25} Sunoco first contends that the PUCO wrongfully relied on the
heading of the clause in interpreting the scope and intent of the clause. In its
order, the commission noted that the most-favored-nation clause is titled
“Comparable Facility Price Protection.” The commission then stated that “[t]he
first indication of the scope of the most favored nation clause is the title of the
clause itself, which plainly indicates that the clause is intended to provide price
protection between comparable facilities and is not intended to deal with the
termination date of the contract.” Sunoco maintains that the PUCO erred in this
regard because the 1999 Sunoco Agreement prohibits using clause headings to
interpret the scope and intent of any clause.




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                            SUPREME COURT OF OHIO




       {¶ 26} Sunoco is correct. Section 10.6 of the Sunoco Agreement, titled
“Clause Heading,” provides, “The clause headings appearing in this Agreement
have been inserted for the purpose of convenience and ready reference. They do
not purport to and shall not be deemed to define, limit or extend the scope or
intent of the clauses to which they pertain.” Thus, the commission erred in
relying on the clause heading.
       {¶ 27} The PUCO and Toledo Edison both counter that Sunoco did not
preserve this issue for appeal by raising it in its application for rehearing at the
commission or in its notice of appeal to this court.       See R.C. 4903.10 and
4903.13. We find that this issue is properly before us.
       {¶ 28} Sunoco’s rehearing application and notice of appeal both contained
the following identical language: “The Order is unjust and unlawful in that it finds
that the ‘Comparable Facility Price Protection’ (hereinafter ‘MFN clause’) of the
1999 Agreement * * * only allowed Sunoco to invoke the provision to obtain a
price for power from Toledo Edison identical to that in the Agreement between
BP Oil Company * * * and Toledo Edison, and did not allow it to invoke the
MFN clause to extend the duration of the contract to make it identical to the BP
Agreement.” (Footnote omitted.) The commission found that the title of the
most-favored-nation clause “plainly indicates that the clause is intended to
provide price protection between comparable facilities and is not intended to deal
with the termination date of the contract.” Sunoco’s rehearing application and
notice of appeal specifically referred to the commission’s finding that the title
heading (“Comparable Facility Price Protection”) was intended only to provide
price protection between comparable facilities (“only allowed Sunoco to invoke
the provision to obtain a price for power from Toledo Edison identical to that in
the Agreement between BP Oil Company and Toledo Edison”). We conclude that
this language was sufficient to preserve this issue for our review. See Discount




                                         8
                                January Term, 2011




Cellular, Inc. v. Pub. Util. Comm., 112 Ohio St.3d 360, 2007-Ohio-53, 859
N.E.2d 957, ¶ 59.
                    2. The PUCO misconstrued the plain language
                         of the most-favored-nation clause
       {¶ 29} Section 9.2, the most-favored-nation clause in the 1999 Sunoco
Agreement, provides:
       {¶ 30} “If the Company provides an arrangement, rates or charges which
is or may be in effect at any time during the term of this Agreement, to a
Comparable Facility within its certified territory, then the Customer will have the
right to utilize that arrangement, rates or charges for its Facility. The Customer
must comply with all other terms and conditions of the arrangement including
firm and interruptible load characteristics/conditions.”
       {¶ 31} The commission found that the plain language of this clause did
not allow Sunoco’s termination date in its 1999 Agreement with Toledo Edison to
match the termination date of BP’s 1996 Agreement with Toledo Edison.
Specifically, the commission rejected Sunoco’s “attempts to interpret the word
‘arrangement,’ as used in this provision, to infer a relationship with the duration
of the contract.”     The commission reasoned that “within the context of the
comparable facility price provision, the duration or ‘term’ of the contract is
referred to separately from the ‘terms and conditions of the arrangement.’
Clearly, the language ‘during the term of this agreement,’ which is contained in
the most favored nation clause, makes that clause applicable to provisions of the
contract other than the duration of the contract. Thus, we can not [sic] find that
the most favored nation clause enables Sunoco to adopt the duration or ‘term’ of
BP’s contract.”
       {¶ 32} Sunoco contends that the commission’s interpretation is not
supported by a plain reading of the most-favored-nation clause. We agree with
Sunoco and find that the commission’s interpretation – specifically its reading of



                                          9
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the first sentence of the most-favored-nation clause – is not a reasonable
interpretation of the plain language of the clause.
       {¶ 33} In construing the plain language of the clause, the commission
based its finding solely on the fact that the duration or “term of this Agreement” –
set forth in the first sentence of the most-favored-nation clause – is referred to
separately from the “terms and conditions of the arrangement” in the second
sentence of the clause. According to the commission, the phrase “during the term
of this Agreement” made the most-favored-nation clause applicable to all other
provisions of the contract except the contract’s duration.      The commission’s
reasoning appears to be that because these phrases are separated in the most-
favored-nation clause and used in different contexts, Sunoco and Toledo Edison
intended the words “arrangement” and “term” (meaning duration) to have
different meanings.     Presumably based on this reasoning, the commission
concluded that the duration of the contract was outside the scope of an
“arrangement.”
       {¶ 34} This was error.      The first sentence of the most-favored-nation
clause reads as follows: “If the Company provides an arrangement, rates or
charges which is or may be in effect at any time during the term of this
Agreement, to a Comparable Facility within its certified territory, then the
Customer will have the right to utilize that arrangement, rates or charges for its
Facility.” This language is limiting, but not in the manner the commission found.
The language of this provision, when construed in its proper context, merely
means that Sunoco can invoke the most-favored-nation clause only “during the
term of this Agreement.” Stated another way, the first sentence limits Toledo
Edison’s obligations under the most-favored-nation clause to the “term of this
Agreement,” meaning that Sunoco has no right to invoke the clause after the
agreement has expired. Because Sunoco invoked the clause before the contract




                                         10
                                     January Term, 2011




expired, the “during the term of this Agreement” provision is not at issue in this
appeal.
                       3. The meaning of the word “arrangement”
          {¶ 35} By focusing its attention on the phrases “during the term of this
Agreement” and “terms and conditions of the arrangement,” the commission
overlooked the dispositive question in this case: the meaning of the word
“arrangement.” Section 9.2 of the most-favored-nation clause provides that “the
Customer (here Sunoco) will have the right to utilize [any] arrangement, rates or
charges for its Facility” that Toledo Edison provides to BP. Thus, the crux of the
issue before us is whether the duration of the BP contract was an “arrangement”
provided by Toledo Edison that Sunoco could utilize for its facility.
          {¶ 36} Sunoco asserts that the word “arrangement” in the most-favored-
nation clause allows Sunoco to utilize all terms and conditions of the BP
Agreement for its facility, including contract duration.                     Sunoco’s primary
argument is that the word “arrangement” means the “entire contract” or “entire
agreement.”2 We need not decide whether the parties intended that the word
“arrangement” be interpreted to mean “entire contract or agreement.” Rather, we
need determine only whether “arrangement,” as used in the most-favored-nation
clause, encompasses the duration of a competitor’s contract.
          {¶ 37} When confronted with an issue of contract interpretation, our role
is to give effect to the intent of the parties. We will examine the contract as a
whole and presume that the intent of the parties is reflected in the language of the
contract. In addition, we will look to the plain and ordinary meaning of the
language used in the contract unless another meaning is clearly apparent from the
contents of the agreement. When the language of a written contract is clear, a

2. In its reply brief, Sunoco argues for the first time that the word “arrangement,” as set forth in
G.C. 614-17, the predecessor to R.C. 4905.31, means “contract.” See Lake Erie Power & Light
Co. v. Telling-Belle Vernon Co. (1937), 57 Ohio App. 467, 11 O.O. 234, 14 N.E.2d 947,
paragraph one of the syllabus. Sunoco is forbidden to raise new arguments in its reply brief. State
ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61.



                                                11
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court may look no further than the writing itself to find the intent of the parties.
“As a matter of law, a contract is unambiguous if it can be given a definite legal
meaning.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849,
797 N.E.2d 1256, ¶ 11.
        {¶ 38} The most-favored-nation clause states that if Toledo Edison
“provides an arrangement, rates or charges which is or may be in effect at any
time during the term of this Agreement, to a Comparable Facility within its
certified territory, then the Customer will have the right to utilize that
arrangement, rates or charges for its Facility.” (Emphasis added.) The word
“arrangement” is not defined in the Sunoco Agreement. Common, undefined
words appearing in a contract “will be given their ordinary meaning unless
manifest absurdity results, or unless some other meaning is clearly evidenced
from the face or overall contents” of the agreement. Alexander v. Buckeye Pipe
Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, paragraph
two of the syllabus.
        {¶ 39} We then must look to the ordinary meaning of the word
“arrangement.” While there are several dictionary definitions of “arrangement,”
even the narrower definitions fit within the context of the most-favored-nation
clause, such as “adjustment,” “mutual agreement,” and “understanding.”
Webster’s Third New International Dictionary (1986) 120 (definitions 6(a) and
(b)(1)). Each of these definitions would fit within the context of the clause and
would not result in “manifest absurdity.” By implication then, any adjustment,
agreement, or understanding that Toledo Edison provides to a comparable facility
within its certified territory is an arrangement that Sunoco has the right to utilize
for its facility.
        {¶ 40} Moreover, although the words “arrangement, rates or charges” are
used together in the same phrase, it is apparent from the face of the clause that
“arrangement” means something other than “rates or charges.” Rates and charges




                                         12
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are clearly price terms of the contract.        Thus, it is reasonable to construe
“arrangement” to encompass other, nonprice terms of the contract. In sum, when
the word “arrangement” is interpreted according to its common usage and in
context, the most-favored-nation clause allows Sunoco to utilize all nonprice
terms of a competitor’s contract. Because contract duration is a nonprice term, an
“arrangement” would include the duration of the contract.
       {¶ 41} This interpretation is consistent with the purpose of the most-
favored-nation clause. The parties agree that the purpose of the most-favored-
nation clause is to “level the playing field” between two competitors served by the
same electric utility so that neither Sunoco nor BP has a competitive advantage
over the other. Sunoco and BP would not be on equal footing if BP could obtain
discount pricing for the entire duration of its contract, but Sunoco – because it
was denied its right to match BP’s contract duration – could not obtain the same
discount for the same length of time.
          4. Counterarguments to Sunoco’s Proposition of Law of No. 1
       {¶ 42} Both       Toledo     Edison     and   the   PUCO     raise   several
counterarguments. None have merit.
                         a. Toledo Edison’s Counterarguments
            i. Interpreting “arrangement” to include duration does not
                      violate the doctrine of noscitur a sociis
       {¶ 43} Toledo Edison argues that Sunoco’s interpretation of the word
“arrangement” in the most-favored-nation clause violates the maxim noscitur a
sociis, “it is known from its associates.” Ashland Chem. Co. v. Jones (2001), 92
Ohio St.3d 234, 236, 749 N.E.2d 744. Under the doctrine of noscitur a sociis, the
meaning of an unclear word may be derived from the meaning of accompanying
words. Id. at 236-237.
       {¶ 44} Toledo Edison concedes that “arrangement” refers to nonprice
terms of the contract, but it maintains that such nonprice terms include only



                                          13
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“similar non-price terms, such as the choice between interruptible and firm power
that was so important to Sunoco.” Yet Toledo Edison offers no compelling
argument why “arrangement” must be construed so narrowly. Had Toledo Edison
wanted the most-favored-nation clause to apply only to specific terms of the
contract such as the type of power supplied, using a broad term like
“arrangement” is an odd way to limit the reach of that clause.                          The word
“arrangement,” because of its breadth, would seemingly cover most, if not all,
nonprice terms and provisions of a competitor’s contract.
                                 ii. Eveleth is not persuasive
         {¶45} Toledo Edison asserts that several courts in other jurisdictions have
reviewed similar most-favored-nation clauses in electric-utility-supply contracts
and rejected the very arguments that Sunoco makes here. Toledo Edison states
that the commission had the benefit of several of these court decisions, but Toledo
Edison cites only one: Eveleth Taconite Co. v. Minnesota Power & Light Co.
(1974), 301 Minn. 20, 221 N.W.2d 157.3 Eveleth, however, is inapposite.
         {¶ 46} First, Eveleth is distinguishable because the most-favored-nation
clause in that case does not contain the language of the clause in this case.
Specifically, the clause in Eveleth does not contain the word “arrangement.”
Thus, Eveleth’s interpretation of a similar most-favored-nation clause has no
bearing on determining the meaning of the clause at issue here.
         {¶ 47} Second, Toledo Edison’s reliance on Eveleth is misplaced because
the court went beyond the four corners of the contract and relied on extrinsic
evidence of precontract negotiations between the customer and the utility to
determine the intent of the parties. See Eveleth, 301 Minn. at 27. In contrast,
extrinsic evidence cannot be considered in this case because the outcome turns



3. The commission cited Eveleth and reasoned that “within the context of the comparable facility
price provision, the duration or ‘term’ of the contract is referred to separately from the ‘terms and
conditions of the arrangement.’ ” See Eveleth, 301 Minn. at 27-28, 221 N.W.2d 157.




                                                 14
                                January Term, 2011




solely on the plain language of the most-favored-nation clause. See Shifrin v.
Forest City Ents., Inc. (1992), 64 Ohio St.3d 635, 597 N.E.2d 499, syllabus.
    iii. Baker Car & Truck Rental and Waterloo Furniture are distinguishable
       {¶ 48} Toledo Edison also contends that courts in other jurisdictions
“consistently have found that contracts with most favored nation clauses end on
the termination date specified in the contract unless the contract itself contains
specific language authorizing an extension of the contract’s term.” Toledo Edison
refers the court to Baker Car & Truck Rental, Inc. v. Little Rock (1996), 325 Ark.
357, 925 S.W.2d 780, and Waterloo Furniture Components, Ltd. v. Haworth, Inc.
(C.A.7, 2006), 467 F.3d 641.
       {¶ 49} Both Baker Car and Waterloo Furniture turned on the fact that
neither plaintiff had attempted to invoke the most-favored-nation clauses of its
contract until after the contract had already expired. See Baker Car, 325 Ark. at
359, 363; Waterloo Furniture, 467 F.3d at 645-646. In contrast to this case, there
is no dispute that Sunoco invoked the most-favored-nation clause before its 1999
contract with Toledo Edison had expired. As a result, we reject Toledo Edison’s
invitation to rely on these cases as persuasive authority.
                     b. The Commission’s Counterarguments
             i. The PUCO’s fear of perpetual contracts is unwarranted
       {¶ 50} The PUCO first counters that if Sunoco’s interpretation of the
most-favored-nation clause prevails, the consequences would be “unintended and
irrational.” Specifically, the PUCO claims that Sunoco would be able to extend
its contract with Toledo Edison indefinitely should Toledo Edison continue to
enter into special contracts with other oil refineries’ operating facilities
comparable to Sunoco’s facility.      The PUCO’s argument is speculative and
without merit.
       {¶ 51} There is no evidence in the record of any other special contracts
involving Toledo Edison and BP, or any other oil refinery for that matter. Indeed,



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the record is silent as to whether refineries beyond those operated by Sunoco and
BP even exist in Toledo Edison’s service territory. This case concerns only the
1999 Sunoco Agreement and Sunoco’s request to extend that agreement to match
the expiration date of the 1996 BP Agreement. Based on the stipulated facts of
this case, BP’s contract expired on December 31, 2008.           Thus, the Sunoco
Agreement will be extended to December 31, 2008, and no further.
     ii. Requirements set forth in the RSP case are not “terms and conditions
             of the arrangement” under the most-favored-nation clause
       {¶ 52} The most-favored-nation clause provides that for a customer to
utilize an “arrangement,” that customer “must comply with all other terms and
conditions   of    the   arrangement   including   firm   and    interruptible   load
characteristics/conditions.”      The PUCO states that          assuming that     an
“arrangement” encompasses a contract extension, the arrangement allowing BP to
extend its contract to December 31, 2008, was made pursuant to the RSP case.
The PUCO notes that the stipulation in that case offered all of Toledo Edison’s
special-contract customers — including BP and Sunoco — a one-time opportunity
to extend their agreements, provided that they notify Toledo Edison of their
decision to extend their contracts within 30 days of the commission’s order
approving the stipulation. The PUCO maintains that Sunoco was offered the
same arrangement as BP; BP complied with the notification requirement, but
Sunoco did not. According to the PUCO, Sunoco cannot utilize the arrangement
offered to BP because Sunoco failed to comply with the terms and conditions of
the arrangement.
       {¶ 53} What the PUCO overlooks here is that if Sunoco had accepted
Toledo Edison’s offer in the RSP case, there would be no need to resort to the
most-favored-nation clause as a means of extending its contract with Toledo
Edison. Acceptance of the offer, by itself, would have extended the Sunoco
Agreement through December 2008. The whole aim of the most-favored-nation




                                        16
                                January Term, 2011




clause is to allow its beneficiary to avail itself of a contractual arrangement based
merely on the fact that another Toledo Edison customer enjoys that arrangement.
That aim is defeated if “terms and conditions of the arrangement” includes a
prerequisite that precludes Sunoco from invoking the clause in the first place.
       {¶ 54} In interpreting a contract, we are required, if possible, to give
effect to every provision of the contract. “ ‘[I]f one construction of a doubtful
condition written in a contract’ ” would render a clause meaningless and it is
possible that another construction would give that same clause meaning and
purpose, then the latter construction must prevail. Foster Wheeler Enviresponse,
Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 362,
678 N.E.2d 519, quoting Farmers Natl. Bank v. Delaware Ins. Co. (1911), 83
Ohio St. 309, 94 N.E. 834, paragraph six of the syllabus. We find that the notice
requirement of the RSP stipulation is not a term or condition of an “arrangement.”
Simply stated, the PUCO’s construction here would render the phrase “all other
terms and conditions of the arrangement” a nullity and defeat the purpose of the
most-favored-nation clause.
                    5. Conclusion to Proposition of Law No. 1
       {¶ 55} Sunoco’s first proposition of law is well taken. The most-favored-
nation clause is not strictly a price-protection provision.     Instead, the clause
allows Sunoco to utilize any more favorable “arrangement, rates or charges” that
Toledo Edison offers to a competitor of Sunoco. Under the plain language of the
clause, the word “arrangement” encompasses all nonprice terms of a competitor’s
contract. Duration is a nonprice term of a contract and, consequently, is subject to
the clause. Moreover, this interpretation is consistent with the agreed purpose of
the clause, which is to ensure that neither Sunoco nor BP obtains a competitive
advantage over the other. Toledo Edison’s refusal to allow Sunoco to invoke the
clause to extend its contract to match BP’s contract placed Sunoco at a
competitive disadvantage. Therefore, we hold that the most-favored-nation clause



                                         17
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allows Sunoco to extend the termination date of its 1999 Agreement to match the
termination date of the 1996 BP Agreement.
                     B. Sunoco’s Propositions of Law Nos. 3 and 4
       {¶ 56} In proposition of law No. 3, Sunoco faults the commission for
relying on “equitable considerations” and other factors that were outside the plain
language of the contract in ruling against Sunoco in this case. In proposition of
law No. 4, Sunoco asserts that the commission erred when it found that Sunoco
was attempting to “collaterally attack” the commission’s decisions in the RSP and
RCP cases.
       {¶ 57} Sunoco’s third and fourth propositions of law are well taken for the
following reasons.
        1. The commission’s reliance on extrinsic evidence was unlawful
       {¶ 58} First, Sunoco claims that the commission’s order is unlawful
because it found that Sunoco, as “a sophisticated energy consumer,” should have
extended its contract in the RSP case, just as BP did. Because the commission
found that the plain language of the most-favored-nation clause was dispositive in
resolving the issues before it, we find that it was unlawful for the commission to
rely on matters outside the written agreement of the parties. See Shifrin v. Forest
City Ents., Inc., 64 Ohio St.3d 635, 597 N.E.2d 499, syllabus.
       {¶ 59} Second, even if extrinsic evidence could be considered in this case,
relying on this specific evidence was unreasonable and unlawful. Any discussion
about what Sunoco did or did not do in the S.B. 3 cases is irrelevant to
determining the intent of Sunoco and Toledo Edison in this case, because the
Sunoco Agreement was executed on May 17, 1999, before S.B. 3 was enacted.
When circumstances surrounding the agreement invest the language of the
contract with a special meaning, extrinsic evidence can be considered in an effort
to give effect to the parties’ intention. Shifrin, 64 Ohio St.3d 635, syllabus. But
here, the commission relied on circumstances occurring after the parties had




                                        18
                                January Term, 2011




formed their contract in 1999. This was error. The commission should not have
relied on the S.B. 3 cases as a basis for denying Sunoco’s complaint when there
was no evidence in the record that the parties had contemplated the effects of
electric deregulation when the contract was formed.
            2. Sunoco did not collaterally attack the PUCO’s prior orders
       {¶ 60} The commission also found that Sunoco’s complaint was a
“collateral[ ] attack [on the commission’s] decisions” in the RSP and RCP cases,
and that to allow this attack to occur “at this late date” could provide “Sunoco
with an unfair advantage over BP which apparently followed the cases and took
the risk to extend its contract at a time when today’s market rates were not known
to them.”
       {¶ 61} The commission’s references to “collateral[] attacks” and “this late
date” misrepresent the record in this case. The Sunoco Agreement was set to
expire in February 2008. On November 13, 2007, Sunoco attempted to invoke the
most-favored-nation clause to extend its contract. When Toledo Edison rejected
Sunoco’s attempts to invoke the clause, Sunoco filed a complaint with the
commission on December 5, 2007, to enforce its rights under the contract.
Sunoco’s complaint before the commission was grounded solely on its rights
under the most-favored-nation clause of its contract with Toledo Edison. Sunoco
referred to the RSP and RCP cases in its complaint only as the means by which
BP was able to have its agreement with Toledo Edison extended. Rather than
attacking these cases, Sunoco relied on these cases to show how BP was able to
extend the duration of its contract. In sum, no evidence exists in the record to
support the finding that Sunoco sat on its rights in order to obtain an unfair
advantage over BP. See MCI Telecommunications Corp. v. Pub. Util. Comm.
(1987), 32 Ohio St.3d 306, 312, 513 N.E.2d 337 (PUCO order may be reversed
when the commission made “summary rulings and conclusions without
developing the supporting rationale or record”).



                                         19
                             SUPREME COURT OF OHIO




       {¶ 62} Moreover, even if Sunoco did gain an “unfair advantage over BP”
based on when it invoked the most-favored-nation clause, the commission erred in
rejecting Sunoco’s complaint on that basis.       See Aultman Hosp. Assn. v.
Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 54-55, 544 N.E.2d 920 (when
the terms of a contract are plain and unambiguous, a contract cannot be given a
meaning different from the one reflected by its plain language in order to provide
a more equitable result). Because the commission had previously found that the
contract was plain and unambiguous, the commission was bound to give effect to
the contract’s express terms and was prohibited from rewriting the contract to
remedy any unfairness to BP.
       {¶ 63} Toledo Edison counters that the commission had the authority
under R.C. 4905.31 to determine that Sunoco was making an untimely “collateral
attack” on the decisions in the RSP and RCP cases that, if allowed, would
disadvantage BP in the current competitive electric market.
       {¶ 64} There is no dispute that the commission has authority under R.C.
4905.31 to regulate, supervise, and modify special contracts. But how far the
commission’s authority under this statute extends need not be decided here,
because nowhere in the commission’s orders in this case did the commission
claim to be using its authority under R.C. 4905.31. R.C. 4903.09 requires the
PUCO in all cases to file “findings of fact and written opinions setting forth the
reasons prompting the decisions arrived at, based upon said findings of fact.” We
cannot find that the commission properly exercised its authority under R.C.
4905.31 when the commission never relied upon that statute in making its
decision in this case.
                         C. Sunoco’s Proposition of Law No. 2
       {¶ 65} In its second proposition of law, Sunoco maintains that the
commission erred when it refused to consider the history of the contractual
relationship between Sunoco and Toledo Edison in interpreting the Sunoco




                                        20
                               January Term, 2011




Agreement. Sunoco also claims that the commission erred when it failed to
consider certain internal memoranda of David Blank, the manager of the Rate
Department for Toledo Edison’s parent corporation, FirstEnergy.
       {¶ 66} The commission did not err in declining to consider this evidence.
As discussed in the preceding sections, extrinsic evidence cannot be considered to
give effect to the contracting parties’ intentions when the language of the contract
is clear and unambiguous. Shifrin, 64 Ohio St.3d 635, 597 N.E.2d 499, syllabus.
                                   Conclusion
       {¶ 67} We find Sunoco’s first, third, and fourth propositions of law are
well taken. Therefore, we reverse the order of the commission on those issues
and enter judgment in favor of Sunoco. Sunoco’s second proposition of law is
overruled.
                                                                    Order reversed.
       O’CONNOR, C.J., and PFEIFER and LUNDBERG STRATTON, JJ., concur.
       O’DONNELL, LANZINGER, and CUPP, JJ., dissent.
                              __________________
       LANZINGER, J., dissenting.
       {¶ 68} BP Oil Company, a competitor of Sunoco, Inc. (R&M), took
advantage of a contract extension with Toledo Edison Company.             Although
Sunoco had the same opportunity to do so, it did not seek an extension.
Nevertheless, the majority holds that the most-favored-nation clause within
Sunoco’s contract guarantees Sunoco the benefit of BP’s extended term. In part,
the majority justifies its holding as enforcing the intent of the parties. Although
Sunoco asserts that this result was intended, Toledo Edison vigorously disputes it
and contends that Sunoco is not entitled to extend the duration of its contract to
match BP’s because the contract duration is not included within the meaning of
“arrangement.” I agree and therefore dissent.




                                        21
                             SUPREME COURT OF OHIO




       {¶ 69} The contract between Sunoco and Toledo Edison is an electric-
service agreement (“ESA”) approved by the Public Utilities Commission of Ohio
(“PUCO” or “commission”) under R.C. 4905.31. This statute authorizes the
PUCO to supervise a special discounted arrangement between an electric utility
and one of its customers. “Every such schedule or reasonable arrangement shall
be under the supervision and regulation of the commission, and is subject to
change, alteration, or modification by the commission.” (Emphasis added.) R.C.
4905.31(E).   As part of its regulatory authority, the commission approved a
stipulation that special contracts extended under the electric-transition-plan case
(In re Application of Ohio Edison Co. (July 19, 2000), PUCO No. 09-1212-EL-
ETP) but not extended under the rate-stabilization-plan case (In re Application of
Ohio Edison Co. (Oct. 28, 2003), PUCO No. 03-2144-EL-ATA) would continue
only until February 2008. In re Application of Ohio Edison Co., PUCO No. 05-
1125-EL-ETA. The commission held that the most-favored-nation clause did not
entitle Sunoco to the ten-month extension that BP had negotiated with Toledo
Edison.
       {¶ 70} Sunoco bears a heavy burden in challenging PUCO orders by
showing “that the commission’s decision is against the manifest weight of the
evidence or is clearly unsupported by the record.” Monongahela Power Co. v.
Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29,
citing AT&T Communications of Ohio, Inc. v. Pub. Util. Comm. (2000), 88 Ohio
St.3d 549, 555, 728 N.E.2d 371.
       {¶ 71} The majority opinion contends that in determining the end date of
Sunoco’s ESA, the PUCO (1) improperly relied on the title of the most-favored-
nation clause,(2) misread the first sentence of the disputed clause, and (3) erred in
finding that the word “arrangement” does not include the duration of the contract.
Although the commission’s position differs from the majority’s view, the PUCO
orders are neither unsupported by evidence in the record nor against the manifest




                                         22
                                January Term, 2011




weight of the evidence. I would uphold them against the three points discussed
by the majority as well because of court holdings in other jurisdictions.
                   Reference to Heading of Contract Clause
       {¶ 72} I would hold that Sunoco waived the argument that the
commission improperly relied on the title of the disputed clause by failing to
include this point in its application for rehearing and in its notice of appeal.
Nevertheless, even if Sunoco is held not to have waived the point, the
commission’s reference is supportable. Section 10.6 of Sunoco’s ESA explains
that clause headings are “for the purpose of convenience and ready reference” and
“shall not be deemed to define, limit or extend the scope or intent of the clauses to
which they pertain.”
       {¶ 73} The commission in its order does refer at several places to the ESA
section titled “Comparable Facility Price Protection,” and the majority makes
much of the commission’s use of the phrase “ price protection provision.” But
both parties also use the words “most-favored-nation clause” in referring to and in
discussing the meaning of Section 9, although neither phrase is found within the
disputed section, which reads in full:
       {¶ 74} “9.1 A Comparable Facility shall be defined as an operating oil
refinery and located within the certified service territory of the Toledo Edison
Company, as such service territory is defined on January 1, 1996.
       {¶ 75} “9.2 If the Company provides an arrangement, rates or charges
which is or may be in effect at any time during the term of this Agreement, to a
Comparable Facility within its certified territory, then the Customer will have the
right to utilize that arrangement, rates or charges for its Facility. The Customer
must comply with all other terms and conditions of the arrangement including
firm and interruptible load characteristics/conditions.”
       {¶ 76} The commission determined that this section did not specifically
discuss the duration of the contract. Nothing mentions the length of time that the



                                         23
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contract is in effect. Section 9 of Sunoco’s ESA does refer to “an arrangement,
rates or charges,” which, if offered to a comparable facility, will be available to
the customer. Section 9.1 defines a comparable facility, and Section 9.2 offers a
“right to utilize” a similar arrangement, i.e., provides price protection between
comparable facilities during the term of the ESA. As the commission correctly
noted, neither paragraph of Section 9 deals with the termination date of the ESA.
The title "Comparable Facility Price Protection" for this clause simply describes
the language of this “most-favored-nation clause,” and the title does not limit or
extend its scope or intent.
                       Reading of First Sentence of Clause
        {¶ 77} The second alleged error relates to the commission’s reading of the
first sentence of Section 9.2. “If the Company provides an arrangement, rates or
charges which is or may be in effect at any time during the term of this
Agreement, to a Comparable Facility within its certified territory, then the
Customer will have the right to utilize that arrangement, rates or charges for its
Facility.”   Instead of seeing this sentence as guaranteeing a customer an
opportunity to obtain treatment similar to that of a comparable facility during the
ESA’s term, the majority states that it “merely means that Sunoco can invoke the
most-favored-nation clause only ‘during the term of this Agreement.’ Stated
another way, the first sentence limits Toledo Edison’s obligations under the most-
favored-nation clause to the ‘term of this Agreement,’ meaning that Sunoco has
no right to invoke the clause after the agreement has expired.” This seems to me
to rewrite the language.
        {¶ 78} More importantly, the commission has been reasonable in
observing that the duration or “term” of the contract is referred to separately in
Sunoco’s ESA from the “terms and conditions of the arrangement.” The
distinction is also seen in the second sentence of Section 9.2, which gives the
customer a reciprocal obligation: “The Customer must comply with all other




                                        24
                               January Term, 2011




terms and conditions of the arrangement including firm and interruptible load
characteristics/conditions.” (Emphasis added.)
       {¶ 79} Thus, if the company provides an “arrangement, rates or charges”
while the agreement is in effect, i.e., at any time during the term, to a comparable
facility (a competitor of the customer), the customer will then have the right to
utilize that arrangement, rates or charges for its own facility. There is no need to
reword the clause—an arrangement that benefits the competitor within the
meaning of this section gives the customer the opportunity to make the same
arrangement.
                        The Meaning of “Arrangement”
       {¶ 80} The majority interprets the term “arrangement” through a
complicated method while ignoring a fundamental point. Although the word
“arrangement” is undefined within the contract, the term has a specific meaning
set forth in R.C. 4905.31. R.C. 4905.31, which governs an ESA, states that a
public utility is not prohibited from “filing a schedule or establishing or entering
into any reasonable arrangement with another public utility or with one or more
of its customers, consumers, or employees* * *providing             for any of the
following:
       {¶ 81} “(A) The division or distribution of its surplus profits;
       {¶ 82} “(B) A sliding scale of charges, including variations in rates based
upon stipulated variations in cost as provided in the schedule or arrangement[;]
       {¶ 83} “(C) A minimum charge for service to be rendered unless such
minimum charge is made or prohibited by the terms of the franchise, grant, or
ordinance under which such public utility is operated;
       {¶ 84} “(D) A classification of service based upon the quantity used, the
time when used, the purpose for which used, the duration of use, and any other
reasonable consideration;




                                         25
                              SUPREME COURT OF OHIO




       {¶ 85} “(E) Any other financial device that may be practicable or
advantageous to the parties interested.” (Emphasis added.)
       {¶ 86} Significantly the term “arrangement” does not include duration of
the contract or the contract term. The statute establishes the obligation of the
utility to file the “schedule or arrangement” with the PUCO, and the section
concludes, “ Every such schedule or reasonable arrangement shall be under the
supervision and regulation of the commission, and is subject to change, alteration,
or modification by the commission.” (Emphasis added.) The ESA thus relates to
special pricing, and “arrangement” refers to the types of “financial devices” that
are listed in R.C. 4905.31.
                                Other Jurisdictions
       {¶ 87} Courts “consistently have found that contracts with most favored
nation clauses end on the termination date specified in the contract unless the
contract itself contains specific language authorizing an extension of the contract's
term.” Majority opinion at ¶ 48. See Baker Car & Truck Rental, Inc. v. Little
Rock (1996), 325 Ark. 357, 362, 925 S.W.2d 780. See also Waterloo Furniture
Components, Ltd. v. Haworth, Inc. (C.A.7, 2006), 467 F.3d 641, 646 (a most-
favored-nation clause "only provides insight into the parties [sic] obligations
during the term of the contract. It does not extend the Agreement past its express
termination date"). The fact that the contracts in these cases were attempted to be
extended after their expiration, while Sunoco tried to extend the express
termination date before the ESA expired, is not significant—the point is that the
most-favored-nation clause does not function to extend the ESA’s duration unless
authority to do so exists within the contract.
       {¶ 88} As an example of the type of extension authority expressed within
a contract, the most-favored-nation clause at issue in Saikhon, Inc. v. United Farm
Workers of Am., AFL-CIO (1980), 104 Cal.App.3d 1, 163 Cal.Rptr. 488, 489,
specifically authorized a contracting party to extend its contract to a "termination




                                          26
                                January Term, 2011




date" negotiated by the union with another produce company "during the term" of
the agreement. This type of language is noticeably absent from Sunoco’s ESA.
       {¶ 89} The Minnesota Supreme Court held that a purchaser of electricity
could not, under the most-favored-nation clause, extend the duration of its
contract based upon the electric utility's contract with another customer. Eveleth
Taconite Co. v. Minnesota Power & Light Co. (1974), 301 Minn. 20, 221 N.W.2d
157. The court stated that the phrase "terms or conditions," as used in the most-
favored-nation clause, “was intended by the parties to mean the covenants and
provisions” of the agreement “other than its duration and that the word ‘term’ * *
* has a distinct meaning signifying the period of duration of the contract during
which more favorable terms and conditions could, upon the election of plaintiff,
be substituted into the agreement.”      Id. at syllabus.   Eveleth relied upon a
Colorado decision that also distinguished a contract's “term" or duration from the
contract’s “terms,” which are the “ ‘conditions, limitations and propositions which
comprise and govern the acts which the contracting parties agree expressly or
impliedly to do or not to do.’ ” Id. at 161, quoting Hurd v. Whitsett (1878), 4
Colo. 77, 84. As Eveleth explained, the use of two separate phrases in the most-
favored-nation clause, that is, “term” and “terms or conditions” in different parts
of the clause and in different contexts, was further evidence that the parties had
intended those words to have different meanings. Id. Although the majority
attempts to distinguish Eveleth on the ground that it uses the phrase “arrangement,
rates and changes” in place of “terms or conditions,” this is a distinction without a
difference. There is no authority within the ESA for Sunoco to extend its own
contract term simply because BP took advantage of an opportunity to lengthen its
ESA with Toledo Edison.
                                    Conclusion
       {¶ 90} I cannot agree with the majority opinion that a most-favored-nation
clause is a tool for extending a contract term beyond its termination date. Nothing



                                         27
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in Sunoco’s ESA gives it that authority. Section 8 language relates to the “term
and effective date” of the contract, while Section 9 includes the “arrangements,
rates and charges” that are to be offered to a competitor during a contract term.
Had Sunoco wished to obtain a longer ESA, it could have negotiated such an
agreement by including specific language authorizing a longer or extended term,
or it could have opted to extend its contract duration in the summer of 2004 as
authorized by the commission's RSP order. Because it did neither, the commission
did not err in denying Sunoco the relief it requested.
       {¶ 91} I respectfully dissent and would hold that the PUCO acted
reasonably in determining that Sunoco’s contract ended in February, rather than
December, 2008. I would affirm the PUCO orders in all respects.
                               __________________
       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[s].” 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 Sunoco-




                                         28
                               January Term, 2011




Toledo 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.
                              __________________
       Boehm, Kurtz & Lowry and David F. Boehm, for appellant.
       Michael DeWine, Attorney General, and John H. Jones, William L.
Wright, and Thomas W. McNamee, Assistant Attorneys General, for appellee
Public Utilities Commission of Ohio.
       Calfee, Halter & Griswold, James F. Lang, and N. Trevor Alexander; and
Mark A. Hayden, for intervening appellee Toledo Edison Company.
                           ______________________




                                        29
