{¶ 2} Plaintiffs' original class action complaint1 was filed on August 19, 2003. Thereafter, plaintiffs filed a first amended class action complaint2 and then a second amended class action complaint3 on November 14, 2003. The allegation in all three complaints was the same: defendants negligently supplied electrical services, on or about August 14, 2003,4 which negligence resulted in business interruption damages to plaintiffs.
{¶ 3} On December 16, 2003, plaintiffs filed motion for leave to file a third amended complaint. That request was denied by the trial court on December 22, 2003.
{¶ 4} On December 17, 2003, defendants responded to plaintiff's second amended complaint by filing a motion to dismiss pursuant to Civ.R. 12(B)(1). In their motion, defendants argued the trial court lacked subject matter jurisdiction because The Public Utilities Commission of Ohio ("PUCO") has exclusive jurisdiction over plaintiff's claims. Defendants argued plaintiffs' claims are governed by R.C.
{¶ 5} The trial court granted defendants' motion and plaintiffs now appeal. Plaintiffs present two assignments of error for review. Because plaintiffs' second assignment of error is essentially dispositive of this appeal, we address it first. In that assignment, plaintiffs allege:
II. The trial judge erred, as a matter of law, by dismissing plaintiff-appellants' claims for lack of subject matter jurisdiction.
{¶ 6} Plaintiffs argue that the trial court erred in dismissing their complaint, because their claims sound in tort and are not, therefore, subject to PUCO's exclusive jurisdiction over servicerelated utility complaints.
{¶ 7} When it granted defendants' Civ.R. 12(B)(1) motion to dismiss, the trial court entered the following entry:
The defendants' motion to dismiss for lack of subject matter jurisdiction is granted. the court agrees with the reasoning in S.G. Foods, Inc. v. First Energy Corporation (2003, summit county court of common pleas) CV 03 08 4909. That case arises out of the same power outage as The instant claim and held the occurence to be an "alleged termination of electric service." therefore, The public utilities commission of ohio has exclusive jurisdiction of the claim (R.C.
{¶ 8} "Once a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court determines whether the complaint contains a cause of action that it has authority to decide. * * * On appeal, we conduct a de novo review of a Civ.R. 12(B)(1) motion." Pac. Indem. Ins. Co. v. IlluminatingCo., Cuyahoga App. No. 82074,
{¶ 9} PUCO "has jurisdiction to adjudicate utility customer complaints related to rates or services of the utility." Kazmaier Supermarket, Inc.v. Toledo Edison Co. (1991),
{¶ 10} R.C.
Upon complaint in writing against any public utility by any person, firm, or corporation, or upon the initiative or complaint of the public utilities commission, that any rate, fare, charge, toll, rental, schedule, classification, or service, or any joint rate, fare, charge, toll, rental, schedule, classification, or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, and, upon complaint of a public utility as to any matter affecting its own product or service, if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof. Such notice shall be served not less than fifteen days before hearing and shall state the matters complained of. The commission may adjourn such hearing from time to time.
{¶ 11} There are, however, exceptions to PUCO'S exclusive jurisdiction over utility complaints. Contract and pure common-law tort claims may be brought in a court of common pleas, rather than submitted to PUCO. Stateex rel. Illuminating Co. v. Cuyahoga Cty. Court of Common Pleas,
{¶ 12} Nonetheless, "claims [that] are manifestly service-related complaints * * * are within the exclusive jurisdiction of the commission." State ex rel. Columbia Gas of Ohio, Inc. v. Henson,
{¶ 13} In the case at bar, we must determine whether plaintiffs' claims are common-law tort claims or whether they primarily relate to service. We review the substance of the claims rather than plaintiffs' assertions that they are tort claims. See, Milligan v. Ohio BellTelephone Co. (1978),
{¶ 14} Following the Ohio Supreme Court and other state appellate courts, this court has repeatedly held that tort claims alleging disruption in service or the adequacy of utility service fall under the exclusive jurisdiction of PUCO. Pac. Indem. Ins. Co. v. IlluminatingCo., Cuyahoga App. No. 52074,
{¶ 15} Plaintiffs' second amended complaint in this case includes one cause of action entitled "negligence." The underlying factual claims include the following statements:
On or about August 14, 2003, [defendants] * * * negligently and carelessly permitted a disruption of electrical services that eventually spread to utility companies in Michigan, Pennsylvania, New York, and other parts of the United States and Canada. Plaintiffs have reason to believe that the most significant events related to this disruption of services occurred in Cuyahoga County, Ohio.
* * * [defendants] permitted the disruption to occur and escalate byfailing to comply with applicable laws and regulations, industrypractices and standards, and other requirements of due care.
* * *
As a direct and proximate result of the negligence and wrongdoing of [defendants], plaintiffs suffered an impairment of their business operations to their substantial detriment. (Emphasis added.)
Plaintiffs' second amended complaint, ¶¶ 5, 6, and 11.
{¶ 16} On the face of plaintiffs' second amended complaint, we conclude that the claims therein are singularly related to the manner in which defendants provided or failed to provide electricity service to plaintiffs.
{¶ 17} Although couched in tort language, the substance of plaintiffs' claims primarily relate to defendants' alleged disruption of plaintiffs' electrical service. Moreover, the determination of issues related to "applicable laws and regulations, industry practices and standards," "is best accomplished by the commission with its expert staff technicians familiar with the utility commission provisions." Gayheart v. DaytonPower Light Co. (1994),
{¶ 18} We reject plaintiffs' interpretation of State ex rel. TheIlluminating Co. v. Cuyahoga Cty. Court of Common Pleas,
{¶ 19} In State ex rel. The Illuminating Co. v. Cuyahoga Cty. Court ofCommon Pleas, The Illuminating Company ("CEI") agreed to provide electric service to Parkbrook Development Corporation ("first owner") at a property in Cleveland, Ohio. In September 1995, All Erection Crane Rental Corporation ("second owner") acquired title to the property. First owner, however, remained in possession of the property. Electricity bills for the property went unpaid. In September 1999, second owner made a $5,000 payment on part of the bills and also sent a letter stating that "as owner of the referenced property [second owner] will accept responsibility for all monies owed to C.E.I. for legitimate electric charges." In July 2000, CEI disconnected the electricity for the property and filed suit in common pleas court.7
{¶ 20} The Ohio Supreme Court determined that virtually all of CEI's claims fell under PUCO's exclusive jurisdiction, except its claims that second owner had assumed guarantor responsibility for payment arrearages in its September 1999 letter. The Court affirmed the trial court's declaring the September letter was a guaranty. However, the Court held that second owner's claims for declaratory judgment that the letter was indefinite and failed for consideration, more properly belonged in common pleas court for determination. The Court explained as follows:
* * * the court of common pleas and Judge Corrigan do not patently and unambiguously lack jurisdiction over [second owner's] claims for declaratory judgment based upon indefiniteness and lack of consideration. These are purely contractual claims that are independent of any claim that CEI violated any provision of R.C. Title 49 or commission regulations. Regarding these claims, the commission has no power to determine rights and liabilities even though a public utility is involved.
Id., at ¶ 32.
{¶ 21} Unlike State ex rel. The Illuminating Co. v. Cuyahoga Cty.Court of Common Pleas, the case at bar does not involve a third-party contract. In State ex rel. The Illuminating Co., CEI alleged that second owner independently and contractually bound itself to pay first owner's unpaid electric bills. The evidence needed to prove or disprove CEI's claim had nothing to do with PUCO's expertise or any of the administrative regulations it enforces.
{¶ 22} In the case at bar, plaintiffs' second amended complaint does not contain any factual allegation that would raise the issue of the guaranty described in State ex rel. The Illuminating Co. Accordingly, plaintiffs' reliance on that case is misplaced.
{¶ 23} In Pacific Indemn. Ins. Co., supra, a property owner filed suit for property damage after CEI had jerry-rigged an electrical service line at her property. This court held that because plaintiff's allegations were "subject to more than one interpretation" the court
* * * cannot say the substance of its claims fall unequivocally within PUCO's exclusive jurisdiction. CEI has failed to present any evidence that jerry-rigging utility service lines is one of its regular "practices." Further, CEI has not shown why the decision to jerry-rig Leedy's service line requires PUCO's administrative expertise.
Plaintiff's claims can be easily characterized as pure tort and contract claims rather than the type of service claims described in R.C.
Id., at ¶ 22 and ¶ 23.
{¶ 24} Unlike the complaint in Pacific Indemn. Ins. Co., the claims in plaintiffs' second amended complaint in the case at bar are not subject to more than one interpretation. The language of plaintiffs' second-amended complaint singularly and substantively focuses on the disruption of plaintiffs' electrical service on August 14, 2003. Plaintiffs unequivocally specify that the August 14th electrical disruption falls under the "applicable laws and regulations, industry practices and standards, and other requirements of due care." Plaintiffs' second amended complaint, at ¶ 6.
{¶ 25} Plaintiffs allege that their claims are related to an electrical blackout that affected not only Ohio, but other states as well. The cause of this type of widespread electrical failure comes within the scope of defendants' statutory and regulatory obligations. We conclude that PUCO is best suited to determine and assess any wrongdoing by defendants according to the laws and regulations it routinely construes and applies.
{¶ 26} Plaintiffs' last argument under this assignment of error is that "a dismissal of their claims would run afoul of the Ohio Constitution's guarantees of separation of powers, a right to a remedy, a right to a jury trial, and equal protection of the law." Plaintiffs' Brief at p. 20.
{¶ 27} "The question of the constitutionality of every law being first determined by the General Assembly, every presumption is in favor of its constitutionality, and it must clearly appear that the law is in direct conflict with inhibitions of the Constitution before a court will declare it unconstitutional. (State Board of Health v. Greenville [1912],
{¶ 28} Plaintiffs present four arguments:
Separation of Powers
{¶ 29} Plaintiffs argue that "[a]n expansion of PUCO's statutory authority into common law torts traditionally regulated by the Courts violates Article
Right to a Remedy
{¶ 30} Plaintiffs contend that allowing PUCO to determine their claims deprives them of a hearing and damages. We reject this argument in light of R.C.
Right to a Jury Trial.
{¶ 31} Plaintiffs further argue that forcing them to submit their claims before PUCO denies them their right to a jury trial. "There is no right to a jury trial, however, unless that right is extended by statute or existed at common law prior to the adoption of our state Constitution." Kneisley v. Lattimer-Stevens Co. (1988),
{¶ 32} As observed by defendants, plaintiffs have not shown that there was or is a common law right to a jury trial in a case against a public utility that has allegedly violated its service obligation to the public. Accordingly, we do not agree that plaintiffs have a constitutional right to a jury trial.
Equal Protection
{¶ 33} Plaintiffs also argue they are being denied equal protection of the law as guaranteed by Article
{¶ 34} For the foregoing reasons, plaintiffs' arguments challenging the constitutionality of the requirement that they submit their claims to PUCO pursuant to R.C.
{¶ 35} Accordingly, the trial court did not err in granting defendants' motion to dismiss for lack of subject-matter jurisdiction. Plaintiffs' second assignment of error is without merit.
I. The trial judge abused his discretion by denying plaintiffs leave to tender their third amended complaint at an early stage in the proceedings.
{¶ 36} Plaintiffs argue the trial court erred by not allowing them to file a third amended complaint. Their third amended complaint, plaintiffs contend, included contract and warranty claims, which would have removed it from PUCO's jurisdiction. We disagree.
{¶ 37} On appeal, a trial court's decision to deny a motion to amend is reviewed under an abuse of discretion standard. Wilmington SteelProducts, Inc. v. Cleve. Elec. Illum. Co. (1991),
{¶ 38} "[W]here it is possible that the plaintiff, by amending the complaint, may set forth a claim upon which relief can be granted, the court abuses its discretion in denying the motion to amend." However, it is not an abuse of its discretion to deny a motion to amend a complaint, "when to do so, would be a `vain act.'" Bushman v. Mid-Ohio RegionalPlanning Comm'n, (1995),
{¶ 39} As we stated earlier in this opinion, augmenting their claims with different labels and language in their proposed third amended complaint does not provide plaintiffs with a basis for jurisdiction. It is the substance of the claims that matters, not what plaintiffs call them.
{¶ 40} Like their second amended complaint, the substance of their third amended complaint includes claims about defendants' failure to provide adequate electrical service to them. For example, in Count I, the negligence claim, plaintiffs allege that defendants were obligated "to exercise due care in arranging and providing for electrical services to be continuously and sufficiently furnished to the class." Proposed third amended complaint, ¶ 18. Count II, the breach of contract and warranty section, asserts that defendants "expressly and/or implicitly warranted and agreed to provide the members of the Class with sufficient and uninterrupted power in accordance with their needs." Proposed Third Amended Complaint, ¶ 23. Also as in their second amended complaint, plaintiffs further allege that defendants violated "standard industry practices and their common law duty of care." Proposed Third Amended Complaint at ¶ 6.
{¶ 41} "`[C]asting the allegations in the complaint to sound in tort or contract is not sufficient to confer jurisdiction upon a trial court" when the basic claim is one that the commission has exclusive jurisdiction to resolve.'" State ex rel. The Illuminating Co., supra, at ¶ 21, citing Higgins v. Columbia Gas of Ohio, Inc. (2000),
{¶ 42} On the face of the proposed third amended complaint in the case at bar, we find nothing that would transform plaintiffs' claims into anything other than allegations about the electrical service defendants failed to provide. Again, PUCO and its trained staff is best suited to determine the issues in this case.
{¶ 43} We conclude, therefore, that the trial court did not err in denying plaintiffs' request to file a third amended complaint insofar as that complaint relates to electrical service problems.
{¶ 44} Accordingly, plaintiffs' second assignment of error is overruled.
Judgment accordingly.
It is ordered that appellees recover of appellants their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas 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.
Blackmon, A.J., and Calabrese, Jr., J., concur.