[Cite as Werner Properties, Inc. v. Gasearch, L.L.C., 2023-Ohio-1049.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

WERNER PROPERTIES, INC., ET AL., :

Plaintiffs-Appellants, :

No. 111850

v. :

GASEARCH, LLC, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 30, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-955721

Appearances:

Kaufman, Drozdowski & Grendell, LLC, and Evan T. 

Byron, for appellants. 

Black, McCuskey, Souers & Arbaugh, James M. Wherley, 

Jr., and Randolph L. Snow, for appellees Gasearch, LLC 

and Susan Faith.

Taft Stettinius & Hollister, LLP, Adrian D. Thompson, and 

Julie A. Crocker; McGuireWoods, LLP, Gregory J. Krock, 

for appellee The East Ohio Gas Company d.b.a. Dominion 

Energy Ohio.
KATHLEEN ANN KEOUGH, J.:

Plaintiff-appellant, Werner Properties, Inc., on behalf of itself and a 

putative class of similarly situated persons and entities, appeals from the trial court’s 

judgment granting the motion to dismiss of defendant-appellee, East Ohio Gas 

Company d.b.a. Dominion Energy Ohio (“DEO”), and sua sponte dismissing

defendants-appellees (“Gasearch”), L.L.C. and Susan Faith (“Faith”) and by 

implication the Doe defendants. For the reasons that follow, we affirm. 

I. Background

The underlying question in this appeal is whether the common pleas 

court had jurisdiction over Werner’s claims regarding services provided by 

defendants-appellees as part of DEO’s Energy Choice Program. 

With the approval of the Public Utilities Commission of Ohio 

(“PUCO”), certain natural gas companies have established energy choice programs 

in which customers shop for energy options from a group of competitive suppliers 

certified by the PUCO. See R.C. 4929.04. Under DEO’s Energy Choice Program, a 

DEO customer may select a supplier other than DEO to supply the customer’s 

natural gas. DEO, however, remains responsible for the transportation and delivery 

of the gas. The supplier selected by the customer contracts directly with the 

customer to supply the gas and DEO, in turn, delivers the gas to the customer. The 

consumer pays for the gas provided by its selected supplier and the local utility 

company’s distribution costs. In re Complaint of Wingo v. Nationwide Energy 

Partners, 163 Ohio St.3d 208, 2020-Ohio-5583, 169 N.E.3d 617, ¶ 13, fn. 3. 
To participate in an energy choice program, gas suppliers must first 

be certified by the PUCO and then comply with extensive PUCO regulations. See

Ohio Adm.Code 4901:1-27 through 4901:1-34. Suppliers must also agree to comply 

with the terms and conditions of the local natural gas company’s PUCO-approved 

tariff.1 Id. 

As alleged in Werner’s second amended complaint (“SAC”), in March 

2012, Werner entered into an Energy Choice Natural Gas Sales Agreement (“NGA”)

with Gasearch in which it agreed to purchase its natural gas from Gasearch. SAC at 

¶ 41-42; exhibit No. 5. Thereafter, Werner and Gasearch renewed the NGA five 

times between 2012 and 2018. Id. at ¶ 43-38; exhibit Nos. 5-10. 

In the NGAs, Gasearch agreed to “sell and deliver 100% of [Werner’s] 

natural gas requirements to [Werner’s facilities].” Id. at ¶ 47; exhibit Nos. 5-10. 

Although DEO was not a party to and did not sign the agreements, the NGAs 

provided that DEO would submit bills on a monthly basis to Werner that would 

include charges for the natural gas supplied by Gasearch and the transportation 

services provided by DEO. Id.; exhibit Nos. 5-10. 

Werner and Gasearch executed their most recent NGA in April 2020. 

Id. at ¶ 46; exhibit No. 10. The April 2020 NGA required Werner to pay $2.72 per 

one thousand cubic feet (“mcf”) that Gasearch supplied. Id. Approximately 18 

1 “Public utility tariffs are books or compilations of printed materials filed by public 

utilities with, and approved by, [the PUCO] that contain schedules of rates and charges, 

rules and regulations, and standards for service.” Jones v. Ohio Edison Co., 2014-Ohio5466, 26 N.E.3d 824, ¶ 16 (11th Dist.). 
months later, on October 28, 2021, Gasearch sent an email to all its customers 

informing them that it was shutting down its business operations and would not 

satisfy any of its outstanding contracts. Id. at ¶ 49; exhibit No. 11. Werner thereafter 

entered into a contract with another PUCO-approved supplier in the Energy Choice 

Program that required it to pay $4.09 per mcf for its gas. Id. at ¶ 52-53. 

Upon learning of the email that Gasearch sent to its customers, DEO 

filed an application with the PUCO seeking to terminate Gasearch’s participation in 

the Energy Choice Program. Id. at ¶ 56; exhibit No. 14. The PUCO approved the 

application on November 3, 2021, and ordered DEO to “effectuate an orderly 

transition of Gasearch’s customers” but “delay the termination of Gasearch’s 

participation in the Energy Choice Program until all existing customers have been 

transitioned * * * to another supplier or supply option.” Id.; exhibit No. 18. The 

PUCO stated that it would “continue to monitor this situation and take any 

additional action deemed necessary.” Id. After receiving approval from the PUCO, 

DEO removed Gasearch from the list of suppliers certified to participate in the 

Energy Choice Program. Id. at ¶ 59. 

In the SAC, Werner asserted claims for breach of contract, fraud, and 

deceptive trade practices against Gasearch; fraud and piercing the corporate veil 

against Faith, Gasearch’s sole owner; and breach of fiduciary duty, negligent 

misrepresentation, negligence, and principal/agency liability against DEO. It also 

named as defendants “John/Jane Does 1-10” but did not assert any claims against 

them. 
In support of its allegations against DEO, Werner alleged in the SAC 

that it had obtained a copy of the “actual agreement” between DEO and Gasearch,

entitled “Service Agreement — Energy Choice Pooling Service,” regarding the 

financial, operational, and creditworthiness requirements imposed by DEO on 

Gasearch. Id. at ¶ 22-23; Exhibit A. Werner alleged that under the agreement, DEO 

was contractually required but failed to monitor Gasearch’s financial condition, 

creditworthiness, and operations to ensure that Gasearch would be capable of 

satisfying its contracts with its customers. Id. at ¶ 21-27, 112-117. Werner contended 

that as a result, it and the putative class members were entitled to recover monetary 

damages in the amount of the increased prices they were required to pay to purchase 

replacement gas from other PUCO-approved suppliers through March 2023, when 

the Gasearch agreement was set to expire. Id. at ¶ 62(b) and (c). 

DEO filed a motion to dismiss the SAC pursuant to Civ.R. 12(B)(1) 

and (6) for lack of jurisdiction and failure to state a claim upon which relief can be 

granted. In its motion, DEO asserted that Exhibit A attached to Werner’s SAC was 

not a signed contract between DEO and Gasearch but rather, a portion of the DEO 

Tariff that provides the general terms and conditions that govern the conduct of both 

DEO and all suppliers in the Energy Choice Program. 

DEO argued that contrary to Werner’s allegation in the SAC that DEO 

was responsible for certifying the suppliers in the Energy Choice Program, the DEO 

Tariff expressly states that the PUCO certifies the suppliers who can participate in 

the program. See Exhibit A, § 24.1 (“Supplier shall be certified by the PUCO in 
accordance with the PUCO’s requirements for Certification of Governmental 

Aggregators and Retail Natural Gas Suppliers as set forth in OAC Chapter 4901:1-

27.”) DEO pointed out that the Tariff also contains provisions that govern DEO’s 

conduct regarding the certified suppliers. For example, the Tariff (1) requires DEO 

to apply and enforce the Tariff in a nondiscriminatory manner; id. at § 24.4(a) and 

(b); (2) prohibits DEO from giving any supplier preference over another supplier; 

id. at § 24.4(c); (3) requires DEO to process all similar requests for transportation 

services in the same manner; id. at § 24.4(d); and (4) prohibits DEO from 

communicating “the idea that any advantage might accrue in the use of [DEO’s] 

services as a result of dealing with any Supplier.” Id. at § 24.4(j). 

Relying on Hull v. Columbia Gas of Ohio, 110 Ohio St.3d 96, 2006-

Ohio-3666, 850 N.E.2d 1190, DEO argued that the trial court lacked jurisdiction 

over the matter because the Supreme Court of Ohio decided in Hull that the PUCO 

has exclusive jurisdiction over disputes involving the amount a customer must pay 

for replacement gas under a natural gas company’s energy choice program if the 

supplier fails to satisfy its obligations to that customer. DEO argued further that 

Werner could not avoid the PUCO’s exclusive jurisdiction by couching its service

and rate-related claims as tort claims because regardless of the label attached to the 

claims, the claims involved the services that DEO was supposed to provide under 

the Energy Choice Program, and the PUCO has exclusive jurisdiction to resolve 

disputes involving those services. Finally, DEO argued that even if the trial court 
had jurisdiction, Werner’s SAC failed to state a claim under which relief can be 

granted. 

In its brief in opposition to DEO’s motion, Werner acknowledged that 

as a public utility, DEO is regulated by Ohio’s Revised Code and Administrative 

Code, that DEO’s provision of services under the Energy Choice Program is 

governed by the DEO Tariff, and that the PUCO is responsible for regulating issues 

regarding that Tariff. (Werner’s brief in opposition, p. 2, 7.) Nevertheless, Werner 

argued that the trial court should deny DEO’s motion because this case “is not an 

administrative or regulatory matter at all” but instead, “a basic civil action premised 

on the common law of Ohio.” (Appellant’s brief in opposition, p. 9.) Werner also 

argued that its case was distinguishable from Hull.

The trial court granted DEO’s motion, finding that it lacked 

jurisdiction over Werner’s claims because they are within the exclusive jurisdiction 

of the PUCO. The trial court found that DEO’s obligations to its customers are 

governed by PUCO regulations and that, in fact, the PUCO had already exercised 

jurisdiction over Gasearch’s breach of its supply contracts with DEO customers. 

The trial court further found that, as in Hull, Werner sought to calculate damages 

based on the difference between its increased gas cost after Gasearch’s default less 

its expected cost under its contract with Gasearch, and that as determined by the 

Ohio Supreme Court in Hull, the PUCO has exclusive jurisdiction to adjudicate 

complaints regarding the rates to be charged a public utility’s customers. Finally, 

the trial court found that it was undisputed that Gasearch was a PUCO-certified 
natural gas supplier and because the PUCO has exclusive jurisdiction to consider 

complaints against such suppliers, the trial court was likewise without jurisdiction 

to consider Werner’s claims against Gasearch and Faith. Accordingly, the court 

dismissed Werner’s claims against DEO, Gasearch, and Faith with prejudice.2 This 

appeal followed. 

II. Appellate Jurisdiction 

In addition to naming Gasearch, Faith, and DEO as defendants in the 

SAC, Werner also named as defendants “John/Jane Does 1-10.” The SAC asserted 

that the Doe defendants were “either individuals and/or entities wholly or partially 

owned by and/or affiliated with Ms. Faith and/or Gasearch that aided, abetted, 

conspired, or otherwise participated in the misconduct set forth herein.” SAC at ¶ 9. 

Werner alleged that it would amend the SAC upon discovering their identities. Id. 

Under Civ.R. 15(D), “when the plaintiff does not know the name of a 

defendant, that defendant may be designated in a pleading or proceeding by any 

name or description.” Then, “when the name is discovered, the pleading or 

proceeding must be amended accordingly.” Id. Under Civ.R. 3(A), an action is 

commenced by filing a complaint if service is obtained within one year from such 

filing “upon a named defendant * * * or upon a defendant identified by a fictitious 

name whose name is later corrected pursuant to Civ.R. 15(D).”

2 The trial court did not address DEO’s Civ.R. 12(B)(6) argument that the SAC 

should be dismissed because Werner failed to state a claim upon which relief can be 

granted. 
Applying these rules, this court has recognized that when the oneyear period for naming and serving John Doe defendants has expired, a judgment 

rendered as to other defendants may be considered final and appealable because the 

action never commenced against the John Doe defendants. Kohout v. Church of St. 

Rocco Corp., 8th Dist. Cuyahoga No. 88969, 2008-Ohio-1819, ¶ 7. However, when 

the one-year period for obtaining service on the John Doe defendants has not yet 

passed and the plaintiff has not expressly abandoned the claims against the John 

Doe defendants, a judgment in favor of other defendants that does not include the 

“no just reason for delay” language of Civ.R. 54(B) is not final and appealable.3 Id. 

The trial court’s dismissal entry dismissed the claims against DEO, 

Gasearch, and Faith but did not mention the Doe defendants. Furthermore, the oneyear period for serving the Doe defendants had not yet passed when the trial court 

entered its order of dismissal. Accordingly, this court, sua sponte, invited the parties 

to file supplemental briefs regarding whether the trial court’s judgment is a final

appealable order such that we have jurisdiction over the appeal. We conclude that 

the trial court’s order is final and appealable. 

First, although Werner identified the Doe defendants in the SAC as 

individuals or entities owned or affiliated with Gasearch and Faith who allegedly 

“aided, abetted, conspired or otherwise participated in the misconduct” described in 

3 Under Civ.R. 54(B), “when multiple parties are involved, the court may enter final 

judgment as to * * * fewer than all of the parties only upon an express determination that 

there is no just reason for delay.” 
the SAC, it did not actually assert any claims against them. The Doe defendants are 

not named in the counts for breach of contract, fraud, and deceptive trade practices 

against Gasearch and Faith nor, in fact, in any counts in the complaint. 

Second, even assuming the SAC asserted claims against the Doe 

defendants, the trial court’s order implicitly resolved the claims against them such 

that they do not remain pending for adjudication. The Ohio Supreme Court has 

recognized that an order that is silent as to a particular claim does not necessarily 

leave that claim unresolved because courts sometimes resolve ancillary claims by 

implication. Gen. Accident Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 

N.E.2d 266 (1989) (concluding that in rejecting the appellant’s claim that certain 

insurance companies owed a duty to defend, the trial court implicitly rejected a 

claim that those insurers owed a duty to indemnify); Wise v. Gursky, 66 Ohio St.2d 

241, 421 N.E.2d 150 (1981) (jury verdict in favor of defendant implicitly rendered 

the claims of defendant’s third-party complaint moot); see also Sec. Natl. Bank & 

Trust Co. v. Jones, 2d Dist. Clark No. 2000-CA-59, 2001 Ohio App. LEXIS 3236, 6 

(July 6, 2001) (trial court’s grant of summary judgment in favor of the plaintiff 

implicitly rejected the defendant’s counterclaim). 

In its order, the trial court determined that because Gasearch was a 

PUCO-certified supplier under the Energy Choice Program, Werner’s claims against 

Gasearch and its owner, Faith, are subject to the PUCO’s exclusive jurisdiction. That 

determination necessarily also applies to any claims that Werner might assert 

against the Doe defendants because if, as the trial court found, the PUCO has 
exclusive jurisdiction over claims involving Gasearch’s and Faith’s alleged 

misconduct, it necessarily also has exclusive jurisdiction over claims against the Doe 

defendants as entities that allegedly aided and abetted Gasearch and Faith in their 

alleged misconduct. Thus, it is apparent that although the trial court’s dismissal 

order does not specifically address Werner’s claims against the Doe defendants, the 

order implicitly dismissed any claims against them.

Finally, and most importantly, even if the trial court’s order did not 

implicitly dismiss the claims against the Doe defendants, it contains the requisite 

Civ.R. 54(B) language, expressly stating that there is “no just cause for delay” of an 

immediate appeal in a case involving multiple claims and parties. Accordingly, we 

find that the trial court’s order is a final appealable order. 

III. Law and Analysis

A. Werner’s Claims Against DEO

In its first assignment of error, Werner contends that the trial court 

erred in dismissing its claims against DEO based on its determination the PUCO has 

exclusive jurisdiction over the claims. Werner contends that its claims against DEO 

are not related to DEO’s natural gas service, rates, and payment for same — which 

Werner concedes are regulatory matters falling within the PUCO’s exclusive 

jurisdiction — but rather are merely common-law tort claims that do not require the 

PUCO’s expertise to decide. He also contends that Hull, the case upon which the 

trial court relied in concluding it lacked jurisdiction, is distinguishable from this 

case. 
“Subject matter jurisdiction is the power conferred on a court to 

decide a particular matter on its merits and render an enforceable judgment over 

the action.” Udelson v. Udelson, 8th Dist. Cuyahoga No. 92717, 2009-Ohio-6462, 

¶ 13. In considering its jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, 

the trial court “determines whether the claim raises any action cognizable in that 

court.” Moore v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-599, 

2019-Ohio-767, ¶ 4. The trial court is not confined to the allegations of the 

complaint but may consider material pertinent to its inquiry without converting the 

motion into one for summary judgment. Vedder v. Warrensville Hts., 8th Dist. 

Cuyahoga No. 81005, 2002-Ohio-5567, ¶ 15. Appellate courts apply a de novo 

standard of review to questions of subject matter jurisdiction. Id. 

“The General Assembly has created a broad and comprehensive 

statutory scheme for regulating the business activities of public utilities.” Kazmaier

Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 150, 573 N.E.2d 665 

(1991). By enacting statutory provisions requiring public utilities to file and adhere 

to rate schedules, forbidding discrimination among their customers, prohibiting 

free service, and providing a detailed procedure for service and rate complaints, the 

General Assembly has lodged exclusive jurisdiction in such matters in the PUCO, 

subject to review by the Supreme Court of Ohio. State ex rel. N. Ohio Tel. Co. v. 

Winter, 23 Ohio St.2d 6, 260 N.E.2d 827 (1970), paragraph one of the syllabus. 

Thus, in general, the “PUCO has exclusive jurisdiction over most matters concerning 
public utilities.” Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 

2008-Ohio-3917, 893 N.E.2d 824, ¶ 5.

Notwithstanding the PUCO’s exclusive jurisdiction over servicerelated matters, courts retain subject-matter jurisdiction over “pure tort and 

contract claims” against utilities regulated by the PUCO. Id. at ¶ 6, citing State ex 

rel. Ohio Edison Co. v. Shaker, 68 Ohio St.3d 209, 211, 625 N.E.2d 608 (1994). “The 

mere fact that a plaintiff casts its allegations to sound in tort, however, is insufficient 

to confer jurisdiction upon the common pleas court.” Pro Se Commercial Properties 

v. Illum. Co., 8th Dist. Cuyahoga No. 92961, 2010-Ohio-516, ¶ 9, citing State ex rel. 

Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio5312, 776 N.E.2d 92, ¶ 21, “Instead, it is the substance of the claims that is 

controlling; if the claims are manifestly service-related, they are with the exclusive 

jurisdiction of the commission.” Pro Se Commercial Properties at id. 

In Allstate, the Supreme Court adopted a two-part test to determine 

whether a claim is service-related or involves a common-law tort. The first part of 

the test asks whether the PUCO’s administrative expertise is required to resolve the 

issue in dispute. Allstate at ¶ 12. The second part of the test is whether the act 

complained of constitutes a practice normally authorized by the utility. Id. If the 

answer to either question is no, the claim is not within the PUCO’s exclusive 

jurisdiction. Id. 

Applying this test to the case before us, it is apparent that the claims 

Werner attempts to style as torts relate to service under the DEO Tariff over which 
the PUCO has particular expertise and that involve standard industry practices. The 

gravamen of the SAC is Werner’s contention that Werner and the purported class 

members paid too much for replacement gas after Gasearch failed to satisfy its 

contractual obligation as a supplier under DEO’s Energy Choice Program. In 

describing DEO’s tortious conduct, Werner asserts that because the DEO Tariff 

required DEO to monitor the creditworthiness and financial wherewithal of

suppliers, DEO assumed a duty to customers to ensure that those suppliers could 

satisfy their supply contracts. Werner and the putative class members seek to 

recover economic losses arising from the increased cost of obtaining natural gas 

following Gasearch’s default of its obligations under its supply contracts. 

With respect to the first part of the Allstate test, we find that the 

PUCO’s expertise is required to assess the monitoring services that Werner contends

DEO should have provided. If DEO should have known that Gasearch might have 

difficulty satisfying its contracts, the adjudicating tribunal will have to determine 

what actions DEO would have been permitted to take in response. Importantly, the 

DEO Tariff governs both the information that Gasearch was required to provide so 

that DEO could monitor its creditworthiness and the information about Gasearch 

that DEO would be permitted to convey to customers. See Exhibit A to SAC, § 23 

and 24.4. The tribunal will have to ensure that the actions that Werner contends 

DEO should have taken would not have violated the DEO Tariff by giving one 

supplier preference over another supplier. In addition, the tribunal will have to 

assess the extent to which DEO would have needed the PUCO’s approval to 
undertake the actions that Werner contends DEO should have taken. See Ohio 

Adm.Code 4901:1-27-13(F) (requiring the PUCO’s approval to take certain actions 

in response to a supplier’s default). These assessments require the PUCO’s unique 

administrative expertise.

Moreover, although Werner’s claims are that DEO failed to 

adequately monitor Gasearch’s financial wherewithal, Ohio law requires the PUCO 

to evaluate the “financial capability” of retail gas suppliers like Gasearch. R.C. 

4929.02(A); see also Ohio Adm.Code 4901:1-2705 (requiring suppliers to provide 

various forms of financial information as part of their certification applications). In 

short, the duties that DEO purportedly violated were either promulgated by order of 

the PUCO or otherwise entrusted by law to the PUCO’s jurisdiction. Thus, the 

PUCO’s expertise is required to assess purported violations of those duties. 

With respect to the second part of the Allstate test, it is apparent that 

Werner’s claims involve services and practices normally authorized by public 

utilities. DEO’s responsibilities to both its retail natural gas supplier and its

customers if that supplier defaults on its contracts are governed by regulation (see

Ohio Adm.Code 4901:1-13-14) and the DEO Tariff. Similarly, the manner in which 

DEO would have been permitted to respond to any customer that might have 

contacted DEO about Gasearch’s financial status is governed by the DEO Tariff. The 

fact that Ohio statutes and regulations govern the issues involved in a lawsuit 

demonstrates that the practice is normally authorized by the public utility. See, e.g., 

Jones, 2014-Ohio-5466, 26 N.E.3d 824 at ¶ 33-34 (11th Dist.) (because repairing 
and replacing power lines are governed by the Ohio Administrative Code and a 

PUCO-approved tariff, those actions are “practices normally authorized by” the 

utility); DiFranco v. FirstEnergy Corp., 134 Ohio St.3d 144, 2012-Ohio-5455, 980 

N.E.2d 996, ¶ 36 (“Offering discounted tariff rates to certain customers is a practice 

normally engaged in by the utility. In fact, the practice is specifically authorized by 

statute.”). Here, the DEO Tariff addresses in detail the relationship between DEO 

and suppliers like Gasearch, thereby confirming that DEO’s supposedly actionable 

conduct is “normally authorized.” 

In light of our analysis under the Allstate test, we find that the trial 

court did not err in determining that the PUCO has exclusive jurisdiction over this 

matter, despite Werner’s attempts to categorize his claims as common-law tort 

claims. Indeed, as the trial court found, the Ohio Supreme Court’s ruling in Hull, 

wherein the Supreme Court held that the PUCO has exclusive jurisdiction over 

disputes involving the amount a customer must pay for replacement gas under a 

natural gas company’s energy choice program if the supplier fails to satisfy its 

obligations to that customer, is directly on point. 

In Hull, in accordance with a customer choice program implemented 

by public-utility company Columbia Gas of Ohio that gave customers a choice to 

purchase their natural gas from sources other than Columbia, Hull elected to 

purchase his natural gas from one of the suppliers that the PUCO had certified. Hull, 

110 Ohio St.3d 96, 2006-Ohio-3666, 850 N.E.2d 1190 at ¶ 6-9. That supplier 

breached its contract with the customer. Id. at ¶ 10. Because the cost to procure 
replacement gas from Columbia exceeded the price that the defaulting supplier had 

agreed to charge, Hull sued Columbia under what he called a “pure contract theory 

of recovery” to recover the increased cost he incurred in purchasing replacement gas 

at a higher price. Id. at ¶ 28. In dismissing the case for lack of jurisdiction, the 

Supreme Court of Ohio emphasized that “a pure contract case is one having nothing 

to do with a utility’s services or rates.” Id. at ¶ 34. The Supreme Court further 

explained that 

[w]hile Hull characterizes his complaint against Columbia as a pure 

contract claim, it is not. His complaint against Columbia is that the rate 

he was charged exceeded the Energy Max contract rate and, thus, that 

he was overcharged. A dispute so founded is squarely within the 

exclusive jurisdiction of the PUCO. 

Id. at ¶ 40-41. 

Werner’s claims are virtually identical to those in Hull. Werner 

alleges that it contracted to purchase its gas from Gasearch in accordance with 

DEO’s Energy Choice Program, that Gasearch breached the contract, and that 

Werner subsequently paid more for replacement gas than it would have paid under 

its contract with Gasearch. SAC at ¶ 19-20, 40-54. As in Hull, Werner seeks to 

recover damages from DEO in the amount of the increased cost that it and the 

putative class members paid to obtain replacement gas from alternative suppliers 

when Gasearch defaulted on its contractual obligations. Id. at ¶ 62(b) and (c). In 

short, Werner contends that DEO’s allegedly faulty “monitoring services” caused the 

purported class members to pay too much for replacement gas when Gasearch failed 
to satisfy its contractual obligations as a supplier under the Energy Choice Program

and that DEO should be liable for the increased cost of that replacement gas. 

Despite Werner’s efforts to distinguish its claim, it is 

indistinguishable from the claim raised in Hull. Werner’s contention that its NGAs 

with Gasearch somehow make this case different from Hull because the contract in 

Hull was between the customer and Columbia — the public utility — rather than the 

alternative supplier, is irrelevant. Just as Columbia was not a party to the contract 

with Hull, DEO was not a party to Werner’s contracts with Gasearch. Likewise, the 

fact that Werner characterizes its claims as tort claims instead of the contract claim 

asserted in Hull is meaningless. The Hull Court held that the PUCO has exclusive 

jurisdiction over all claims that involve a utility’s services or rates, regardless of how 

the plaintiff characterizes those claims. Hull, 110 Ohio St.3d 96, 2006-3066, 850 

N.E.2d 1190 at ¶ 34, 40-41. 

Werner’s assertion that this case is different from Hull because the 

plaintiff therein sought to compel Columbia to provide natural gas, unlike the 

demand in this case, is also without merit. The customer in Hull sought the same 

relief that Werner seeks: damages in the amount of the additional money that it and 

the putative class members paid an alternative supplier when their initial supplier 

defaulted under its supplier contracts. Id. at ¶ 28, 41. Furthermore, despite 

Werner’s contention otherwise, the fact that one justice issued a dissent in Hull does 

not permit this court to disregard the majority’s ruling. 
Finally, Werner’s assertion that the PUCO does not have jurisdiction 

because it is not a court and cannot award damages is without merit. If the PUCO 

finds a violation, Werner can seek to recover monetary damages in court. See, e.g., 

State ex rel. Ohio Edison Co. v. Trumbull Cty. Ct. of Common Pleas, 11th Dist. 

Trumbull No. 2019-T-0062, 2019-Ohio-5313, ¶ 33 (“Even though the trial court 

does not have jurisdiction over the issue of whether a violation has occurred, the 

court of common pleas does have jurisdiction over the issue of damages if the PUCO 

finds a violation.”); Jones, 2014-Ohio-5466, 26 N.E.3d 824 at ¶ 38 (“Thus, if 

appellants are able to establish their claims before the PUCO * * * appellants can 

then seek an award of treble damages against them in court.”). 

Werner’s claim that DEO’s allegedly faulty monitoring services 

caused it and the putative class members to pay too much for replacement gas when 

Gasearch failed to satisfy its obligations as a supplier under the Energy Choice 

Program and that DEO should therefore be liable for the increased cost of the 

replacement gas is indistinguishable from the claim in Hull that the court found to 

be within the PUCO’s exclusive jurisdiction. Accordingly, the trial court did not err 

in finding, in reliance on Hull, that the PUCO has exclusive jurisdiction over this 

matter and dismissing Werner’s claims against DEO. In fact, the PUCO has already 

exercised jurisdiction over issues surrounding Gasearch’s default of its supply 

obligations to its customers and announced its intention to remain involved by 

taking “any additional action deemed necessary.” SAC, exhibit No. 18 at ¶ 10. The 

first assignment of error is overruled. 
B. Werner’s Claims Against Gasearch and Faith

In its second assignment of error, Werner contends that the trial court 

erred in sua sponte dismissing its claims against Gasearch and Faith for lack of 

subject-matter jurisdiction. We disagree. 

First, Werner’s assertion that Interstate Gas Supply, Inc. v. Calex 

Corp., 10th Dist. Franklin No. 04AP-980, 2006-Ohio-638, “demonstrates, as a 

matter of law, that common pleas courts of Ohio have jurisdiction to hear contract 

and tort actions against natural gas suppliers (like Gasearch and Faith)” is wholly 

without merit. There is no discussion whatsoever in that case about the PUCO or its 

jurisdiction. Furthermore, the case involved claims by Interstate against two 

defendants with whom it had contracted to supply gas. When the defendants did not 

pay Interstate’s invoices, Interstate sued for breach of contract and amount due on 

an account. Thus, the claims asserted by Interstate did not relate to its service or 

rates but were “pure contract” claims over which the PUCO does not have 

jurisdiction. 

As noted by the Ohio Supreme Court in Hull, by enacting R.C. 

4929.20 through 4929.30, the General Assembly gave the PUCO authority and 

regulatory jurisdiction over governmental aggregators and retail natural gas 

suppliers such as Gasearch. Hull, 110 Ohio St.3d 96, 2006-Ohio-3666, 850 N.E.2d 

1190 at ¶ 35. See, e.g., R.C. 4929.24(A)(1) (“The public utilities commission has 

jurisdiction under section 4905.26 of the Revised Code, upon complaint of any 

person * * * regarding the provision by a natural gas supplier subject to certification 
* * * of any service for which it is subject to certification.”). It is undisputed that 

Gasearch was a PUCO-certified natural gas supplier. SAC at ¶ 6, 29. Furthermore, 

despite Werner’s characterization otherwise, its claims against Gasearch and Faith 

are neither contract nor tort claims; they are service-related claims that fall squarely 

within the PUCO’s exclusive jurisdiction. In fact, as discussed above, the PUCO has 

already exercised its jurisdiction over Gasearch’s default of its supply agreements 

with DEO’s customers. 

The trial court did not err in dismissing Werner’s claims against 

Gasearch and Faith for lack of subject-matter jurisdiction. The second assignment 

of error is therefore overruled. 

Judgment 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

ANITA LASTER MAYS, A.J., and

EMANUELLA D. GROVES, J., CONCUR