WILLIAM SAKS v. THE EAST OHIO GAS COMPANY, ET AL.
No. 97770
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 14, 2012
[Cite as Saks v. E. Ohio Gas Co., 2012-Ohio-2637.]
Boyle, J., Stewart, P.J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-752485; JUDGMENT: AFFIRMED
ATTORNEY FOR APPELLANT
Brian Ruschel
925 Euclid Avenue
Suite 660
Cleveland, Ohio 44115-1405
ATTORNEYS FOR APPELLEES
Mark A. Whitt
Melissa L. Thompson
Whitt Sturtevant LLP
PNC Plaza, Suite 2020
155 East Broad Street
Columbus, Ohio 43215
For Integrys Energy Services, Inc.
James A. Climer
Frank H. Scialdone
John T. McLandrich
John D. Pinzone
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin‘s Row
34305 Solon Road
Solon, Ohio 44139
MARY J. BOYLE, J.:
{¶1} Plaintiff-appellant, William Saks, appeals the trial court‘s decision granting the motion to dismiss filed by defendant-appellee, The East Ohio Gas Company d.b.a. Dominion East Ohio (“Dominion“), and the motion for judgment on the pleadings filed by Integrys Energy Services, Inc. (“Integrys“). The trial court found that Saks‘s claims fall within the exclusive jurisdiction of the Public Utilities Commission of Ohio (“PUCO“). We affirm.
Procedural History and Facts
{¶2} In June 2011, Saks filed an amended complaint against Dominion, a public utility, and Integrys, a natural gas supplier, seeking to certify a class action on behalf of himself and other customers who have been “falsely and fraudulent double-billed” or “otherwise overcharged.” Saks specifically alleged that “one or both of the defendants charged [Saks] for 20.3 MCU of gas which improperly included 0.4 MCU billed to and paid by plaintiff on his October 29, 2010 statement and 6.2 MCU billed to and paid by [Saks] on his December 1, 2010 statement.” Saks further alleged that on December 30, 2010, “one or both of the defendants charged [Saks] for gas at $4.62 per unit, which rate, when multiplied by the volume gas shown on the invoice, should have resulted in a charge of $95.25 * * * instead of the $106.04 charged.” The amount of damages was approximately $40.
{¶3} Saks also asserted a claim under the Ohio Consumer Sales Practice Act (“CSPA“), alleging that “[d]efendants’ acts and practices were unfair, deceptive, and unconscionable in connection with consumer transactions and in violation of
{¶4} Dominion moved to dismiss the complaint under
{¶5} “The trial court erred in granting the defendants’ dispositive motions based on its wrong finding that the * * * PUCO has exclusive subject-matter jurisdiction here. Nothing in the record supports that.”
{¶6}
{¶7} We review an order dismissing a complaint for failure to state a claim for relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44. When reviewing a
{¶8} We likewise apply a de novo standard of review to a trial court‘s decision on a motion for judgment on the pleadings filed under
{¶9} Applying a de novo standard of review, we turn to the critical issue on appeal: whether PUCO has exclusive jurisdiction over Saks‘s claims.
Subject Matter Jurisdiction
{¶10} Through the enactment of
{¶11} The mere pleading of a tort or breach of contract claim, however, does not automatically invoke jurisdiction within a common pleas court. Allstate, 119 Ohio St.3d at 303. Indeed, “[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. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 21 (per curiam). When determining subject-matter jurisdiction, the court must review the claims’ substance “to determine if service-related issues are involved.” Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, ¶ 10.
{¶12} In Allstate, the Ohio Supreme Court adopted a two-part test to determine whether the allegations advance service-related or common-law tort claims: (1) whether the PUCO‘s administrative expertise is required to resolve the issue in dispute, and (2) whether the act complained of constitutes a practice normally authorized by the utility. Id. at ¶ 13. If the answer to both questions is in the affirmative, the claim is within PUCO‘s exclusive jurisdiction.
{¶13} Saks contends that his claims are pure tort and breach of contract claims that do not implicate the jurisdiction of PUCO. He argues that had the trial court properly applied the Allstate test, it would have been compelled to find jurisdiction because (1) the resolution of overcharges, either negligently or fraudulently done, do not require any special expertise of PUCO, and (2) PUCO does not authorize the “mismultiplications and double-charges” that were done in this case.
{¶14} We find that Saks misconstrues the holding in Allstate. In Allstate, an insurer brought a subrogation action against an electric company to recover payments to an insured for damages incurred in a fire allegedly caused by the utility‘s failure to respond to a service call. While the insurer argued that its claims involved ordinary acts of negligence, the utility argued that if it was negligent, it was negligent regarding policies and procedures for service calls subject to PUCO jurisdiction. Id. at ¶ 8, 10. The court noted, “We concede the distinction between the two arguments is a fine one,” and developed its two-part test “[t]o help us and all other courts determine when a trial court‘s determination that it, not PUCO, has jurisdiction over a case involving a public utility alleged to have committed a tort * * *.” Id. at ¶ 10, 11.
{¶15} The Allstate test was never intended to deprive the PUCO of matters that fall squarely within its jurisdiction; instead, the test was adopted to guide courts in evaluating claims that present a close question on whether the claims are utility-service related or claims constituting a tort or breach of contract. Indeed, the mere fact that the common pleas court may have the skill to decide the issue does not give it subject matter jurisdiction when the General Assembly has expressly indicated that disputes over the rate charged by a public utility fall squarely within the exclusive jurisdiction of PUCO. See Kazmaier, 61 Ohio St.3d at 159; see also 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, ¶ 22-23. ”
{¶16} As for the second prong of the Allstate test, we find that billing is a practice authorized by the utility. Indeed, as noted by appellees, they are subject to several PUCO rules governing rates and regulations. See, e.g.,
{¶17} Relying on a 2003 decision from the Second District, Saks further argues that the resolution of mere mathematical mistakes does not invoke the exclusive jurisdiction of PUCO. See Hundley v. Vectren Energy Delivery of Ohio, Inc., 2d Dist. No. 19870, 2003-Ohio-6237, ¶ 16 (recognizing that the expertise of PUCO is not necessary for the resolution of a claim alleging isolated acts of negligence in performing mathematical calculations). We find Hundley, however, unpersuasive and not controlling. Again, as stated above, disputes involving charges for service fall within the exclusive jurisdiction of PUCO. And to the extent that Saks broadly alleges that the charges were fraudulently made, we still find that his claim falls within PUCO‘s jurisdiction, especially because the fraud allegations relate specifically to the billing. See Suleiman v. Ohio Edison Co., 146 Ohio App.3d 41, 764 N.E.2d 1098 (7th Dist.2001) (applying Kazmaier and recognizing that a claim for fraudulent billing fell within the exclusive jurisdiction of PUCO).
{¶18} Finally, we likewise find that the trial court properly dismissed Saks‘s alleged CSPA claim. Because the underlying conduct giving rise to the purported CSPA claim falls squarely with PUCO‘s jurisdiction, the trial court lacks jurisdiction to consider the claim. Furthermore, the CSPA generally excludes transactions between a utility (i.e., Dominion) or a company supplying natural gas (i.e., Integrys) and its customers from the scope of “consumer transactions” covered by the statute.
{¶19} The sole assignment of error is overruled.
{¶20} Accordingly, we affirm the trial court‘s decision granting Dominion‘s motion to dismiss and Integrys’ motion for judgment on the pleadings.
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.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR