[Cite as Rafalski v. Dominion E. Ohio Co., 2011-Ohio-2931.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95908




                            LAWRENCE RAFALSKI
                                                          PLAINTIFF-APPELLANT

                                                    vs.

               DOMINION EAST OHIO CO., ET AL.
                                                          DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-728030

        BEFORE:                Keough, J., Sweeney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                             June 16, 2011
FOR APPELLANT

Lawrence Rafalski, pro se
6916 Worley Avenue
Cleveland, OH 44105

ATTORNEY FOR APPELLEES

Kathryn M. Miley
Wilkerson & Associates Co., LPA
1422 Euclid Avenue
Suite 248
Cleveland, OH 44115




KATHLEEN ANN KEOUGH, J.:

     {¶ 1} Plaintiff-appellant, Lawrence Rafalski, pro se, appeals from the

trial court’s judgment dismissing his complaint. We affirm.

I.   Background

     {¶ 2} Rafalski filed suit against defendants-appellees, East Ohio Gas

Company, Dominion East Ohio Company,1 and two employees of East Ohio

Gas Company. In response to appellees’ motion to dismiss, Rafalski sought

and was granted leave to file an amended complaint, and later a second

amended complaint. The caption on the second amended complaint stated

that it was for “negligence, intentional torts, fraud, malice, disparagement,


      A non-existent entity, according to appellees.
     1
[and] infliction of emotional distress.”

      {¶ 3} In the second amended complaint, Rafalski alleged that in

February 2009, Dominion sent him a letter informing him that it wanted

access to his home to inspect the gas meter subsequent to a fire on the

premises, and further advising him that it would turn off his gas service if

such access were not promptly provided. Rafalski alleged that he informed

Dominion by letter that access could not readily be provided due his injuries

from a fire in the home. Rafalski alleged that he sent a copy of this letter to

East Ohio Gas Company.

      {¶ 4} Rafalski further alleged that neither Dominion nor East Ohio Gas

Company responded to his reply, but Dominion subsequently sent him a

letter informing him it planned to shut off the gas service to his home because

he had not responded to the first letter.

      {¶ 5} Rafalski alleged that he again responded by letter to Dominion

and East Ohio Gas Company and again received no response.            Dominion

then sent Rafalski a third letter in which it advised him that gas service at

his home would be discontinued due to his failure to respond to Dominion’s

earlier letters.

      {¶ 6} Rafalski’s second amended complaint alleged that he sent another

letter to Dominion and East Ohio Gas Company, and also contacted Sherry

Jones, an employee of East Ohio Gas Company. He alleged that Ms. Jones
“unreasonably refused” to investigate whether his earlier letters had been

received by the company and “treated him with contempt.” Rafalski asserted

that he subsequently sent Jones a letter advising that he would pay his

account in full and requesting that his service not be shut off. According to

the second amended complaint, Jones did not respond to Rafalski’s letter and

in May 2009, East Ohio Gas Company disconnected gas service to his home.

      {¶ 7} Rafalski’s complaint further alleged that after the gas service to

his home had been shut off, Roxie Edwards, an employee of Dominion and/or

East Ohio Gas Company, sent him a letter apologizing for the defendants’

“communication shortcomings” and offering to arrange for inspection of the

gas meter in his home so that his gas service would not be shut off. Rafalski

alleged that he called Edwards and informed her that he “deeply resented”

her letter in light of the circumstances.

      {¶ 8} Appellees subsequently renewed their motion to dismiss the

second amended complaint under Civ.R. 12(B)(1) and 12(B)(6) for lack of

subject matter jurisdiction and failure to state a claim upon which relief can

be granted.   They argued that the trial court lacked jurisdiction because

Ohio’s Public Utilities Commission has exclusive jurisdiction over rate and

service complaints, such as Rafalski’s, regarding public utilities.      They

further asserted that for various reasons the second amended complaint

failed to state a claim upon which relief can be granted.     The trial court
subsequently granted appellees’ motion without opinion.

II.    Standard of Review

       {¶ 9} Civ.R. 12(B)(1) permits dismissal where the trial court lacks

jurisdiction over the subject matter of the litigation. Ferren v. Cuyahoga Cty.

Dept. of Children & Family Serv., 8th Dist. No. 92294, 2009-Ohio-2359, ¶3.

In ruling on a motion made pursuant to Civ.R. 12(B)(1), the court must

determine “whether any cause of action cognizable by the forum has been

raised in the complaint.” Id. An appellate court considers the issue de novo,

reviewing the issue independently of the trial court’s decision. Id.; D’Agnese

v. Holleran, 8th Dist. No. 83367, 2004-Ohio-1795, ¶23.

       {¶ 10} A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint.

Chapman v. S. Pointe Hosp., 186 Ohio App.3d 430, 2010-Ohio-152, 928

N.E.2d 777, at ¶7. A complaint should not be dismissed for failure to state a

claim upon which relief can be granted unless it appears beyond doubt from

the complaint that the plaintiff can prove no set of facts entitling him to

recovery. O’Brien v. Univ. Comm. Tenants Union, Inc. (1975), 42 Ohio St.2d

242, 245, 327 N.E.2d 753. We review an entry of dismissal de novo, affording

no deference to the trial court’s decision. Chapman at ¶9.

III.   Subject Matter Jurisdiction

       {¶ 11} “The General Assembly has created a broad and comprehensive
statutory scheme for regulating the business activities of public utilities.

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.    As part of that scheme, the legislature created the Public

Utilities Commission and empowered it with broad authority to administer

and enforce the provisions of Title 49.”       Kazmaier Supermarket, Inc. v.

Toledo Edison Co. (1991), 61 Ohio St.3d 147, 150, 573 N.E.2d 655.

      {¶ 12} “The commission has exclusive jurisdiction over various matters

involving public utilities, such as rates and charges, classifications, and

service, effectively denying to all Ohio courts [except the Supreme Court] any

jurisdiction over such matters.” State ex rel. Cleveland Elec. Illum. Co. v.

Cuyahoga Cty. Court of Common Pleas (2000), 88 Ohio St.3d 447, 450, 727

N.E.2d 900.    The commission’s exclusive jurisdiction includes complaints

regarding the termination of service by public utilities.          State ex rel.

Columbia Gas of Ohio, Inc. v. Henson, 201 Ohio St.3d 349, 2004-Ohio-3208,

810 N.E.2d 953, at ¶17. See, also, Higgins v. Columbia Gas of Ohio, Inc.

(2000), 136 Ohio App.3d 198, 202, 736 N.E.2d 92 (“refusal or termination of

service by a public utility is a matter which is in the exclusive jurisdiction of

the [commission], subject to an appeal to the Ohio Supreme Court”).

      {¶ 13} To determine whether the commission has exclusive jurisdiction

over a claim, the court must determine “(1) whether the commission’s
administrative expertise is required to resolve the disputed issue, and (2)

whether the act complained of constitutes a practice normally authorized by

the utility.” State ex rel. Duke Energy Ohio, Inc. v. Hamilton Cty. Court of

Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, at ¶21,

citing Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d

1009, ¶11.

      {¶ 14} In   this case, it is apparent that Rafalski’s claims are

service-related claims that are within the exclusive jurisdiction of the

commission. First, as appellees contend, Rafalski claims that Dominion and

its employees acted unreasonably must be evaluated in light of complex state,

federal, and administrative law regarding the termination of service,

requiring the commission’s expertise to evaluate the claims.

      {¶ 15} Moreover, the acts that Rafalski complains of are practices

normally authorized by the utility under the law, i.e., the termination of

utility service. In his second amended complaint, Rafalski complained about

communications from Dominion allegedly threatening to terminate his gas

service if he did not allow access to his gas meter. Rafalski also complained

that he was advised that if terminated, his service would not be reinstated

unless he allowed inspection of the meter. The procedures a utility must

follow to terminate service are dictated by law. See R.C. 4933.12 and O.A.C.

4901:1-18-07. Furthermore, inspection of Rafalski’s gas meter was required
by law.   See 49 C.F.R. 192.723.     Accordingly, under the test set forth in

Duke, supra, the commission has exclusive jurisdiction over Rafalski’s

complaint and the trial court did not err in dismissing the second amended

complaint for lack of subject matter jurisdiction.

      {¶ 16} Rafalski argues in his first assignment of error, however, that the

trial court erred in dismissing his complaint for lack of subject matter

jurisdiction because he did not assert any claims against the commission.

This argument misses the mark: Rafalski’s claims must be filed with the

commission, not against it.      The first assignment of error is therefore

overruled.

      {¶ 17} Similarly, in his third assignment of error, Rafalski contends that

the trial court should not have dismissed his case because appellees are not

state agencies and the court of claims is not the proper forum for his claims.

This argument is also without merit. Appellees are indeed not state agencies

and as discussed above, jurisdiction resides with the commission, not the

court of claims. Rafalski’s third assignment of error is therefore overruled.

      {¶ 18} In his second assignment of error, Rafalski contends that the trial

court had jurisdiction over his claims because they are tort claims, and not

claims involving utility rates or business practices, which Rafalski concedes

are properly determined by the commission.           But Rafalski’s attempt to

characterize his claims as tort claims does not avoid the jurisdictional
outcome. As the Ohio Supreme Court recognized in Duke, supra, “although

some of [plaintiff’s] claims in the civil action are couched in terms of tort and

contract, they are insufficient to confer jurisdiction on the common pleas

court because it is manifest that these claims are based upon violations of

public-utility laws, which are within the exclusive initial jurisdiction of the

commission to determine.” Id. at ¶24. Similarly, in this case, although he

calls his claims “torts,” Rafalski’s claims are service-related claims that are

under the exclusive jurisdiction of the commission. The second assignment

of error is therefore overruled.

      {¶ 19} In his fourth assignment of error, Rafalski argues that the trial

court’s dismissal for lack of subject matter jurisdiction denied him his

common law and constitutional right to a jury trial. Rafalski never raised

this argument in the trial court and, accordingly, has waived it for purposes

of appeal.   Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 322

N.E.2d 629. The fourth assignment of error is therefore overruled.

IV.   Failure To State A Claim Upon Which Relief Can Be Granted

      {¶ 20} Appellees characterized their renewed motion to dismiss as a

“motion to dismiss for lack of subject matter jurisdiction and for failure to

state a claim upon which relief can be granted.” The trial court’s judgment

entry granted the motion, but did not specify whether it was granting the

motion under Civ.R. 12(B)(1) (lack of subject matter jurisdiction) or 12(B)(6)
(failure to state a claim upon which relief can be granted).

      {¶ 21} In his fifth assignment of error, Rafalski contends that the trial

court’s dismissal was based on lack of subject matter jurisdiction only and

that the trial court made no determination regarding the sufficiency of the

complaint.     Because our review is de novo, we consider whether the

complaint fails to state any claims upon which relief can be granted.

      {¶ 22} With respect to individual defendant Sherry Jones, Rafalski

alleged that Jones “unreasonably refused to use her authority as defendants’

agent and employee to postpone the impending shutoff,” “unreasonably

refused to have the defendants acknowledge that the plaintiff had, indeed,

not   failed   to   respond   to   defendant   Dominion’s   prior   letters,”   and

“unreasonably refused” to provide Rafalski with privileged information.

These allegations do not state a claim against Ms. Jones:             there is no

indication what duty she owed to Rafalski and there is no cause of action for

“unreasonableness.”

      {¶ 23} With respect to individual defendant Roxie Edwards, Rafalski

alleged that Edwards delivered a letter to him after the gas to his property

had been shut off “for the purpose of further taunting and mistreating” him.

This is not a cause of action.

      {¶ 24} As to Rafalski’s claims against East Ohio Gas Company and

Dominion East Ohio Company, the caption on the second amended complaint
identified   claims   for   “negligence,   intentional   torts,   fraud,   malice,

disparagement, [and] infliction of emotional distress” with a prayer for

compensatory damages and injunctive relief “against further damaging

conduct” by appellees.       But the second amended complaint failed to

adequately plead all but one of these claims.            There is no claim for

“intentional tort” and the second amended complaint does not specify what

intentional tort it is alleging. The claim for fraud is not pled with specificity,

as required by Civ.R. 9(B). Furthermore, although malice is an element of

some claims or may be grounds for seeking punitive damages, it is not a

separate cause of action. Dickson & Campbell, LLC v. Marshall, 8th Dist.

No. 90963, 2010-Ohio-2878, ¶10. Likewise, “disparagement” is not a cause of

action.

      {¶ 25} Similarly, there is no such claim as “infliction of emotional

distress,” and the second amended complaint does not state a claim for either

negligent or intentional infliction of emotional distress. Negligent infliction

of emotional distress may occur where “the plaintiff has either witnessed or

experienced a dangerous accident and/or was subjected to an actual physical

peril.” Kulch v. Structural Fibers, Inc. (1977), 78 Ohio St.3d 134, 162-63, 327

N.E.2d 753. That does not apply to the situation here. Nor does the second

amended complaint state a claim for intentional infliction of emotional

distress, which requires, among other things, “extreme and outrageous”
conduct that is “beyond all possible bounds of decency” and resulting in

mental anguish “so serious and of a nature that no reasonable man could be

expected to endure it.”    Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 463

N.E.2d 98.

      {¶ 26} With respect to Rafalski’s request that the court order appellees

to “refrain from further harassment, disparagement, or mistreatment” of him

and “any conduct that would tend to cause further anxiety and/or emotional

distress” to him, we find that the request is not specific enough to even be

possible.

      {¶ 27} Finally, although the caption of the second amended complaint

stated that it was claiming negligence, in the body of the complaint, Rafalski

specifically stated that he “does not allege that defendants were not legally

permitted to disconnect plaintiff’s gas service * * *.” As appellees point out,

he thereby negated the only cause of action that was even hinted at in the

second amended complaint.

      {¶ 28} Accordingly, we find that the second amended complaint failed to

state a claim upon which relief can be granted and, therefore, the trial court

did not err in granting appellees’ motion to dismiss. The fifth assignment of

error is overruled.

      Affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.
     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said 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.




KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
