IN RE COMPLAINT OF PILKINGTON NORTH AMERICA, INC., APPELLANT; TOLEDO EDISON COMPANY, INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION, APPELLEE.
No. 2013-0709
Supreme Court of Ohio
Submitted September 2, 2015—Decided November 24, 2015.
[Cite as In re Complaint of Pilkington N. Am., Inc., 145 Ohio St.3d 125, 2015-Ohio-4797.]
FRENCH, J.
{1 1} In the proceedings below, appellant, Pilkington North America, Inc., filed a motion for relief from judgment under
{1 2} Pilkington challenges the commission‘s order, raising two propositions of law, each containing several supporting arguments. Pilkington has waived its primary argument that the commission‘s February 19, 2009 order is ultra vires. The arguments that Pilkington did preserve lack merit. Therefore, we affirm the commission‘s order.
Facts and Procedural Background
{1 3} Pilkington is a large industrial company that manufactures glass. It has a facility in Rossford, Ohio. In 1990, Pilkington entered into a special contract with intervening appellee, Toledo Edison Company, under which the utility provided the Rossford facility with discounted electric service. The commission approved the special contract under
{1 5} The commission consolidated the six complaints, id. at 2, and the parties filed joint stipulations of fact, id. at 3. Each of the industrial customers but one, Martin Marietta, agreed to pay into an escrow account the amounts in dispute, i.e., the difference between the special contract rates and the tariff rates from February 2008 to December 31, 2008. Id. at 7.
{1 6} On February 19, 2009, the commission dismissed the complaints. The commission found that the industrial customers failed to show that Toledo Edison “had violated any applicable order, statute, or regulation” when it terminated the special contracts in February 2008. 2009 Order at 20.
{1 7} Each of the industrial customers—except Pilkington—appealed the commission‘s decision to this court. Because Pilkington decided not to challenge the order on appeal, it had to release the money placed in escrow (which Pilkington claims was over $1.8 million) to Toledo Edison.
{1 8} In August 2011, we reversed the commission‘s order, holding that Toledo Edison had prematurely terminated the special contracts in February 2008. Martin Marietta Magnesia Specialties, L.L.C. v. Pub. Util. Comm., 129 Ohio St.3d 485, 2011-Ohio-4189, 954 N.E.2d 104. We found under the plain language of the contracts that the contracts should have remained in effect until December 31, 2008. Id. at ¶ 25. This meant that the industrial customers who had appealed were entitled to discounted rates from Toledo Edison over the ten-month billing period from February to December 31, 2008.
{1 9} Just over four months after we decided Martin Marietta, Pilkington filed a
{1 10} The commission denied Pilkington‘s motion, holding that Pilkington had failed to satisfy the requirements for obtaining relief under
{1 11} Pilkington then filed an application for rehearing with the commission, claiming three errors. First, Pilkington claimed that the commission wrongly decided the
{1 12} Second, Pilkington claimed that the commission violated the filed-rate doctrine by forcing it to pay an unauthorized rate. According to Pilkington, the lawful rate that applied to its electric service from Toledo Edison was the contract rate, as determined by our opinion in Martin Marietta.
{1 13} Third, Pilkington alleged that the commission allowed Toledo Edison to charge similarly situated customers different rates.
{1 14} The commission denied Pilkington‘s application for rehearing. Pub. Util. Comm. No. 08-255-EL-CSS, Entry on Rehearing, 5-6 (Mar. 20, 2013). Pilkington has now filed the instant appeal challenging the January 23 order and the order on rehearing.
Standard of Review
{1 15} ”
{1 16} Although this court has “complete and independent power of review as to all questions of law” in appeals from the commission, Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997), 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., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979).
Discussion
{1 17} Pilkington raises two propositions of law, each with various supporting arguments. After review of those arguments, we conclude that Pilkington has not demonstrated reversible error.
I. Proposition of Law No. 1: When an order of the commission is reversed on appeal, that order is ultra vires
{1 18} Pilkington‘s primary argument on appeal is that an order of the commission that is found to be unlawful is ultra vires and “of no legal effect.” According to Pilkington, when this court reversed the 2009 Order in Martin Marietta, it rendered that order void as a matter of law not just with respect to the appealing parties, but even as to other customers of Toledo Edison that did not appeal the order and whose interests are so interwoven with those of the appealing parties as to justify relief. Therefore, Pilkington claims it is entitled to relief from the 2009 Order despite not challenging the order on appeal.
A. We lack jurisdiction over Pilkington‘s ultra vires claim
{1 19} Fatal to Pilkington‘s claim is its failure to raise the ultra vires argument in its application for rehearing of the commission‘s order denying
{1 20} Pilkington tries to salvage its ultra vires claim in its reply brief. Pilkington first argues that it was not required to preserve its ultra vires argument on rehearing at the commission. Pilkington also argues that its rehearing application contained language sufficient to preserve the ultra vires claim. We disagree on both counts.
{22} As a general statement of law, this is true. When an administrative agency renders a decision without subject-matter jurisdiction, the order is void and subject to challenge at any time. See Shawnee Twp. v. Allen Cty. Budget Comm., 58 Ohio St.3d 14, 15, 567 N.E.2d 1007 (1991); Springfield Local School Dist. Bd. of Edn. v. Lucas Cty. Budget Comm., 71 Ohio St.3d 120, 121, 642 N.E.2d 362 (1994). In contrast, a wrong decision made by an agency with subject-matter jurisdiction is not void, but merely voidable. That is, errors in the exercise of jurisdiction can be waived and must be challenged on appeal. See State ex rel. Broadway Petroleum Corp. v. Elyria, 18 Ohio St.2d 23, 27, 247 N.E.2d 471 (1969); Garverick v. Hoffman, 23 Ohio St.2d 74, 78-79, 262 N.E.2d 695 (1970); State ex rel. Stough v. Norton City School Dist. Bd. of Edn., 50 Ohio St.2d 47, 50, 362 N.E.2d 266 (1977), overruled on other grounds by State ex rel. Alford v. Willoughby Civ. Serv. Comm., 58 Ohio St.2d 221, 390 N.E.2d 782 (1979).
{23} The critical problem for Pilkington is that the commission had subject-matter jurisdiction over the 2009 proceedings. The subject matter of the 2009 complaint cases concerned rates, and the commission‘s jurisdiction over rates and rate-related matters is unquestionable and exclusive. See, e.g., State ex rel. Cleveland Elec. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 447, 451, 727 N.E.2d 900 (2000).
{24} Moreover, Pilkington cannot credibly claim that the commission lacked jurisdiction over the subject matter when Pilkington itself invoked the commission‘s jurisdiction by filing a complaint against Toledo Edison under
{25} Pilkington also cites Arlington v. Fed. Communications Comm., 569 U.S. 290, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013), for the proposition that it was not required to preserve its ultra vires claim on rehearing at the commission. Pilkington maintains that its ultra vires claim can be raised at any time because Arlington makes clear that the commission‘s 2009 Order—which we found unlawful in Martin Marietta—is void based on a lack of jurisdiction. But that assertion is incorrect.
{1 27} Beyond this, the United States Supreme Court in Arlington was not addressing a situation that is even remotely similar. Here, the commission dismissed Pilkington‘s complaint, Pilkington chose not to appeal, and now Pilkington wants the same outcome as those parties who did appeal. By contrast, Arlington involved a challenge to a declaratory ruling by the Federal Communications Commission. Id. at 295. Even though it contains the “ultra vires” language that Pilkington cites, we must read Arlington in proper context. As noted, the court rejected the contention that it needed to decide whether the agency‘s action was jurisdictional or nonjurisdictional. While those labels may not be important to deciding issues of statutory construction on direct review, as was true in Arlington, they are critical to determining whether a nonappealing party—like Pilkington—can collaterally attack a commission order outside the normal appeal process. In short, Arlington simply did not address a situation like this, so its opinion is wholly inapposite and we will not extend it to this case.
{28} Pilkington also claims that its rehearing application contains language that is sufficient to preserve the ultra vires issue for review. Pilkington argues that it was not necessary to include the specific words “ultra vires” in its rehearing application in order to preserve the issue. Rather, in its reply brief in this court, Pilkington maintains that it preserved the issue by the following statements: (1) the commission was “incorrect in denying its motion due to Pilkington‘s failure to seek rehearing of the original Judgment and the prohibition of using
{29} Pilkington overlooks the fact that this court has strictly construed the specificity requirement in
B. The commission did not violate the filed-rate doctrine when it refused to vacate the 2009 Order
{30} Pilkington also argues under its first proposition of law that the commission violated the filed-rate doctrine by refusing to vacate the 2009 Order. Under this doctrine, a utility may charge only the rates fixed by its current, commission-approved tariff. See
{31} Pilkington‘s argument here hinges largely on its claim that the commission‘s 2009 Order is ultra vires, a claim that is not properly before us. But more importantly, Pilkington overlooks the fact that Toledo Edison did charge Pilkington the lawful rate. The filed-rate doctrine holds that rates approved by and filed with the commission are the lawful rates, unless a litigant proves otherwise. See
{32} Pilkington‘s final argument under its first proposition of law is that by allowing the 2009 Order to stand, the commission created a discriminatory rate structure in violation of
II. Proposition of Law No. 2: A motion for relief from judgment under Civ.R. 60(B) is the proper mechanism to vacate a commission order that this court has found to be unlawful
{33} In its second proposition of law, Pilkington raises three arguments. First, Pilkington contends that
{34} It is axiomatic that
Conclusion
{36} Pilkington had the burden of demonstrating that the commission‘s orders were unreasonable or unlawful.
Orders affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
Bricker & Eckler, L.L.P., Thomas J. O‘Brien, J. Thomas Siwo, Matthew W. Warnock, and Daniel C. Gibson, for appellant.
Michael DeWine, Attorney General, William L. Wright, Thomas G. Lindgren, and Thomas W. McNamee, Assistant Attorneys General, for appellee, Public Utilities Commission of Ohio.
Calfee, Halter & Griswold, L.L.P., James F. Lang, and Sarah M. Antonuccci; David S. Winston, for intervening appellee, Toledo Edison Company.