In rе COMPLAINT OF WILKES v. OHIO EDISON COMPANY; WILKES ET AL., APPELLANTS; PUBLIC UTILITIES COMMISSION ET AL., APPELLEES.
No. 2011-0737
Supreme Court of Ohio
Submitted November 16, 2011—Decided February 22, 2012.
131 Ohio St.3d 252, 2012-Ohio-609
MCGEE BROWN, J.
Michael DeWine, Attorney General, and Richard N. Coglianese, Michael J. Schuler, and Erin Butcher-Lyden, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
MCGEE BROWN, J.
{¶ 1} Thomas and Derrell Wilkes аppeal the Public Utilities Commission‘s order dismissing their complaint against Ohio Edison Company for lack of jurisdiction. We affirm.
I. Factual and Procedural Background
{¶ 2} In 1949, Ohio Edisоn purchased an easement in Boardman, Ohio, for the purpose of building and maintaining an electric transmission line. Todаy, a 69,000-volt electric transmission line runs over the property. In 1977, Thomas and Derrell Wilkes purchased a portion of the property subject to the easement, and in 1993, they built an above-ground swimming pool and a storage shed in the area of the easement.
{¶ 4} The Wilkeses filed their own complaint a few months later, not with a court, but with the commission. They asked the commission to order the company to move its transmission line.
{¶ 5} Ohio Edison filed a mоtion to dismiss the Wilkeses’ complaint, asserting lack of jurisdiction. The commission granted the motion. It found that the technical issue—that the proximity of the pool and shed to the transmission lines violates the National Electrical Safety Code—was undisputed. What was disputed was “the remedy that should be applied to bring about compliance with the [code],” that is, which structurе must give way, the pool and shed or the transmission line. But that dispute involved a legal question of “competing property rights” аnd thus belonged before the courts.
{¶ 6} The Wilkeses have appealed; Ohio Edison has intervened as an appellee.
II. Discussion
{¶ 7} The Wilkeses present three propositions of law on appeal.
{¶ 8} In the first, they argue that the commission has еxclusive jurisdiction over a claim for “service-related issues” that “calls for the interpretation and enforcemеnt of the National Electrical Safety Code.” However, the Wilkeses have not stated such a claim.
{¶ 9} As a general matter, the commission “does not possess judicial power and may not adjudicate controversies between parties as to property rights.” Dayton Communications Corp. v. Pub. Util. Comm., 64 Ohio St.2d 302, 303-304, 414 N.E.2d 1051 (1980); New Bremen v. Pub. Util. Comm., 103 Ohio St. 23, 30-31, 132 N.E. 162 (1921). But it does possess exclusive jurisdiction over certain types of claims, set forth in
{¶ 10} The Wilkeses have not shown that the commission‘s expеrtise is required to resolve the disputed issue. Their only jurisdictional theory is that
{¶ 11} We decline to accept the first proposition of law.
{¶ 12} In their second proposition of law, the Wilkeses argue thаt the commission had “independent” jurisdiction over their claims because the claims were based upon the statutes governing the commission and the commission‘s own rules. It is true that in a given case, the commission and the courts may each havе jurisdiction that is independent of the other. When a case has both regulatory and legal issues, the commission would have jurisdiction over the former by virtue of its exclusive jurisdiction, while a court may adjudicate the latter by virtue of its general jurisdiction. Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009. See also State ex rel. The Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 18-21, 32. But the Wilkeses have not demonstrated that an “independent” regulatory claim exists for the commission to resolve. They assert that their claims are independent from those raised in the common pleas court because their claims are based upon two large collections of laws: “the PUCO statutes (
{¶ 13} As for their argument that “collateral attacks are permissible in the PUCO,” it is based on a misreading of precedent. (Emphasis deleted.) The case they depend on, W. Res. Transit Auth. v. Pub. Util. Comm., 39 Ohio St.2d 16, 313 N.E.2d 811 (1974), held merely that the commission could revisit its own orders, not the orders of a court. Id. at 18; see Martin Marietta Magnesia Specialties, L.L.C. v. Pub. Util. Comm., 129 Ohio St.3d 485, 2011-Ohio-4189, 954 N.E.2d 104, ¶ 41. W. Res. did not address, much less alter, the jurisdictional balance between the commission and the courts, and the case is irrelevant here.
{¶ 14} We decline to accept the second proposition of law.
{¶ 15} The Wilkeses’ last proposition—that the commissiоn erred by dismissing their “claim for unfair and discriminatory treatment“—is forfeited. The Wilkeses
III. Conclusion
{¶ 16} For these reasons, the Wilkeses have not demonstrated that the commission erred in dismissing their complaint for lack of jurisdiction. We affirm.
Order affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and CUPP, JJ., cоncur.
Brett M. Mancino, for appellants.
Michael DeWine, Attorney General, and William L. Wright and Thomas G. Lindgren, Assistant Attorneys General, for appellee.
Jones Day, David A. Kutik, and Douglas R. Cole, for intervening appellee Ohio Edison Company.