[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re Complaint of Pilkington N. Am., Inc., Slip Opinion No. 2015-Ohio-4797.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2015-OHIO-4797

IN RE COMPLAINT OF PILKINGTON NORTH AMERICA, INC., APPELLANT;

TOLEDO EDISON COMPANY, INTERVENING APPELLEE; PUBLIC UTILITIES 

COMMISSION, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re Complaint of Pilkington N. Am., Inc., Slip Opinion No. 

2015-Ohio-4797.] 

Public Utilities Commission―Appellate procedure―Civ.R. 60(B)―Failure to 

raise argument in application for rehearing before commission defeats 

any entitlement to relief obtained by other parties on appeal from same 

order who did raise argument―Fact that relief stemmed from same 

contract does not itself confer right to share same relief―Reversal of 

commission order does not render order ultra vires as to parties who did 

not raise error in application to commission for rehearing. 

(No. 2013-0709 – Submitted September 2, 2015 – Decided November 24, 2015.) 

APPEAL from the Public Utilities Commission, No. 08-255-EL-CSS. 

____________ 
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FRENCH, J. 

{¶ 1} In the proceedings below, appellant, Pilkington North America, Inc., 

filed a motion for relief from judgment under Civ.R. 60(B). Pilkington sought 

relief from an order of appellee, the Public Utilities Commission, issued February 

19, 2009, that Pilkington did not appeal. The commission denied Pilkington’s 

motion, finding that Pilkington did not meet the requirements of Civ.R. 60(B) and 

that, in any event, Pilkington was not entitled to relief because it may not use 

Civ.R. 60(B) as a substitute for appeal. 

{¶ 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 

{¶ 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 R.C. 4905.31, which allows a 

public utility to enter into a “reasonable arrangement” with “one or more of its 

customers.” 

{¶ 4} In 2008, Pilkington filed a complaint under R.C. 4905.26, alleging 

that Toledo Edison had unlawfully terminated the special contract. See In re 

Complaint of Pilkington N. Am., Inc., Pub. Util. Comm. No. 08-255-EL-CSS, 7 

(Feb. 19, 2009) (hereafter, the “2009 Order”). Five other large industrial 

companies, which also had special contracts with Toledo Edison, also filed 

complaints against the utility. The complaints were identical in that they alleged 

that Toledo Edison had prematurely terminated the special contracts in February 
January Term, 2015 

3

2008, despite contract language stating that the agreements would remain in effect 

until December 31, 2008. Id. at 2. The early termination meant that Pilkington 

and the other industrial customers would pay the tariff rates, which were higher 

than the contract rates, from February to the end of December 2008. 

{¶ 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. 

{¶ 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. 

{¶ 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. 

{¶ 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. 

{¶ 9} Just over four months after we decided Martin Marietta, Pilkington 

filed a Civ.R. 60(B) motion for relief from judgment with the commission. 

Pilkington sought relief from the commission’s February 19, 2009 order 
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dismissing its complaint and the order denying the application for rehearing, 

which the other five complainants filed. Pilkington argued that this court’s 

decision in Martin Marietta applied to Pilkington as it did to the other industrial 

customers who had successfully appealed the 2009 Order because its contract 

with Toledo Edison contained the same language as the other industrial 

customers’ contracts. Therefore, according to Pilkington, it was entitled to the 

same remedy the other industrial customers received, namely, discounted rates 

through December 31, 2008. 

{¶ 10} The commission denied Pilkington’s motion, holding that 

Pilkington had failed to satisfy the requirements for obtaining relief under Civ.R. 

60(B)(4). Pub. Util. Comm. No. 08-255-EL-CSS, 4 (Jan. 23, 2013). The 

commission also found that Pilkington was not entitled to relief under Civ.R. 

60(B)(5) because that provision could not be used as a substitute for appeal. Id. at 

5. According to the commission, Pilkington should have challenged the 2009 

Order through an application for rehearing and an appeal to this court, as the other 

industrial customers had done. Id. at 4-5. 

{¶ 11} Pilkington then filed an application for rehearing with the 

commission, claiming three errors. First, Pilkington claimed that the commission 

wrongly decided the Civ.R. 60(B) motion on procedural grounds rather than on 

the merits. Pilkington argued that the commission should exercise its authority 

under Ohio Adm.Code 4901-1-38(B) to waive the procedural requirements of 

Civ.R. 60(B) that Pilkington failed to follow. 

{¶ 12} Second, Pilkington claimed that the commission violated the filedrate 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. 

{¶ 13} Third, Pilkington alleged that the commission allowed Toledo 

Edison to charge similarly situated customers different rates. 
January Term, 2015 

5

{¶ 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 

{¶ 15} “R.C. 4903.13 provides that a PUCO order shall be reversed, 

vacated, or modified by this court only when, upon consideration of the record, 

the court finds the order to be unlawful or unreasonable.” Constellation 

NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 

N.E.2d 885, ¶ 50. We will not reverse or modify a commission decision as to 

questions of fact where the record contains sufficient probative evidence to show 

that the commission’s decision was not manifestly against the weight of the 

evidence and was not so clearly unsupported by the record as to show 

misapprehension, mistake, or willful disregard of duty. Monongahela Power Co. 

v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. 

The appellant bears the burden of demonstrating that the commission’s decision is 

against the manifest weight of the evidence or is clearly unsupported by the 

record. Id. 

{¶ 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). 
SUPREME COURT OF OHIO

6

Discussion 

{¶ 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 

{¶ 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 

{¶ 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 

Civ.R. 60(B) relief. R.C. 4903.10 requires a rehearing application to “set forth 

specifically the ground or grounds on which the applicant considers the order to 

be unreasonable or unlawful.” Pilkington did not raise its ultra vires argument on 

rehearing as required by R.C. 4903.10, so we lack jurisdiction to consider it. See 

Consumers’ Counsel v. Pub. Util. Comm., 70 Ohio St.3d 244, 247-248, 638 

N.E.2d 550 (1994); Ohio Partners for Affordable Energy v. Pub. Util. Comm., 

115 Ohio St.3d 208, 2007-Ohio-4790, 874 N.E.2d 764, ¶ 15. 

{¶ 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 
January Term, 2015 

7

application contained language sufficient to preserve the ultra vires claim. We 

disagree on both counts. 

{¶ 21} Pilkington first argues that because the commission’s 2009 Order is 

void, it was not required to raise the ultra vires argument on rehearing. Pilkington 

asserts that attacks on subject-matter jurisdiction cannot be forfeited and can be 

raised at any time, even for the first time on appeal. 

{¶ 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, 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 
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8

commission’s jurisdiction by filing a complaint against Toledo Edison under R.C. 

4905.26. This statute “confers exclusive jurisdiction on the PUCO to adjudicate 

complaints filed against public utilities challenging any rate or charge as ‘unjust, 

unreasonable, * * * or in violation of law.’ ” (Brackets sic.) DiFranco v. 

FirstEnergy Corp., 134 Ohio St.3d 144, 2012-Ohio-5445, 980 N.E.2d 996, ¶ 19. 

That is, Pilkington not only failed to dispute the commission’s jurisdiction over its 

complaint, it chose to be subject to it. 

{¶ 25} Pilkington also cites Arlington v. Fed. Communications Comm., 

___ U.S. ___, 133 S.Ct. 1863, ___ L.Ed.2d ___ (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. 

{¶ 26} The question presented on direct review in Arlington was whether 

courts must defer to the Federal Communications Commission’s interpretation of 

a statute that concerned the scope of the agency’s jurisdiction, pursuant to 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Arlington did state that when an 

administrative agency acts beyond the bounds of its statutory authority, its action 

is ultra vires. Arlington at 1869 (for administrative agencies, “[b]oth their power 

to act and how they are to act is authoritatively prescribed by Congress, so that 

when they act improperly, no less than when they act beyond their jurisdiction, 

what they do is ultra vires”). The case, however, was not decided on 

jurisdictional grounds. Pilkington overlooks the fact that the Arlington court 

expressly found that when it comes to determining the validity of an agency’s 

statutory interpretation, there is “no principled basis” for courts to decide whether 

the agency exceeded the scope of its statutory authority (its jurisdiction), or 
January Term, 2015 

9

whether it merely erred in the exercise of its statutory authority (a 

nonjurisdictional question). Id. Rather, “[n]o matter how it is framed, the 

question a court faces when confronted with an agency’s interpretation of a statute 

it administers is always, simply, whether the agency has stayed within the bounds 

of its statutory authority.” (Emphasis deleted.) Id. at 1868. See also id. at 1869. 

{¶ 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 1866. 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 Civ.R. 60(B)(5) as a substitute for appeal” and (2) the “Commission’s 

failure to vacate the Judgment resulted in an unlawful rate charge as a result of 
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this Court’s decision in Martin Marietta.” According to Pilkington, “[t]hese 

statements leave no doubt that the ‘ground for reversal’ and the ‘errors 

complained of’ are the Commission’s failure to vacate the Judgment after Martin 

Marietta rendered the Judgment unlawful and void.” We disagree. 

{¶ 29} Pilkington overlooks the fact that this court has strictly construed 

the specificity requirement in R.C. 4903.10. See Discount Cellular, Inc. v. Pub. 

Util. Comm., 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 59 (when an 

appellant’s grounds for rehearing fail to specifically allege in what respect the 

commission’s order was unreasonable or unlawful, the requirements of R.C. 

4903.10 have not been met); Cincinnati v. Pub. Util. Comm., 151 Ohio St. 353, 

378, 86 N.E.2d 10 (1949) (by using the language set forth in the predecessor to 

R.C. 4903.10, “the General Assembly indicated clearly its intention to deny the 

right to raise a question on appeal where the appellant’s application for rehearing 

used a shotgun instead of a rifle to hit that question”). The general statements 

Pilkington cites were not sufficient to put the commission on notice of the ultra 

vires claim. Therefore, we cannot consider the claim on appeal. See R.C. 

4903.10; see also, e.g., Ohio Partners for Affordable Energy, 115 Ohio St.3d 208, 

2007-Ohio-4790, 874 N.E.2d 764, at ¶ 15. 

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 R.C. 4905.32; Keco Industries, Inc. v. 

Cincinnati & Suburban Bell Tel. Co., 166 Ohio St. 254, 257, 141 N.E.2d 465 

(1957). More specifically, Pilkington contends that we determined what the 

lawful, approved rate was in Martin Marietta. And by refusing to order Toledo 

Edison to charge that rate to Pilkington, the commission has allowed the utility to 
January Term, 2015 

11 

charge rates other than the lawful, “filed” rates, thereby violating the filed-rate 

doctrine. 

{¶ 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 R.C. 4905.33; In re Application of Columbus S. Power Co., 138 

Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 51. Pilkington did not appeal 

the commission’s 2009 Order, so it did not prove otherwise. 

C. Pilkington has failed to show that the commission approved a 

discriminatory rate structure 

{¶ 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 R.C. 4905.35. This argument need not detain us long, 

since Pilkington has provided no argument or explanation beyond this onesentence assertion. Pilkington’s failure to present an argument as to how R.C. 

4905.35 applies on these facts and how it was violated is, alone, grounds for 

rejection. See In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 

2011-Ohio-2638, 951 N.E.2d 751, ¶ 14; Util. Serv. Partners, Inc. v. Pub. Util. 

Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 53. 

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 Civ.R. 60(B) is an appropriate procedural 

mechanism to vacate an unlawful commission decision. Second, Pilkington 

maintains that it satisfied the criteria of Civ.R. 60(B), thereby entitling it to the 
SUPREME COURT OF OHIO

12 

relief sought. And third, Pilkington argues that public policy and the equities 

dictate that Pilkington is entitled to relief from the commission’s unlawful 

decision.1 

{¶ 34} It is axiomatic that Civ.R. 60(B) cannot be used as a substitute for 

appeal. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 

N.E.3d 1040, ¶ 16, citing Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio1934, 846 N.E.2d 43, ¶ 8-9. Like the other industrial companies that appealed the 

commission’s February 19, 2009 order, Pilkington had the statutory right to file 

an application for rehearing and, if that application was unsuccessful, an appeal to 

this court. See R.C. 4903.10 and 4903.13. Pilkington chose not to pursue those 

rights, however. Civ.R. 60(B) “does not exist to allow a party to obtain relief 

from his or her own choice to forgo an appeal from an adverse decision.” Kuchta

at ¶ 15, citing Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 

L.Ed. 207 (1950). The doctrine of res judicata applies to a Civ.R. 60(B) motion 

filed as a substitute for appeal. Kuchta at ¶ 16. Moreover, where one party 

appeals a judgment, a reversal as to that party generally will not justify a reversal 

as to nonappealing parties. Wigton v. Lavender, 9 Ohio St.3d 40, 43, 457 N.E.2d 

1172 (1984). 

{¶ 35} Pilkington did not appeal the commission’s adverse judgment. 

Therefore, that judgment is final, and res judicata precludes the use of Civ.R. 

60(B) to obtain relief from that final judgment. Thus, whether or not Civ.R. 

60(B) might be used in some circumstances to seek relief from an unlawful 

commission decision, Pilkington is not entitled to use that rule in this case, having 

not taken advantage of the statutory mechanisms for obtaining reversal of a 

commission decision. 

 

1

 Pilkington has also reasserted its ultra vires claim under its second proposition of law. Because it 

forfeited that claim, there is no need to revisit it here. 
January Term, 2015 

13 

Conclusion 

{¶ 36} Pilkington had the burden of demonstrating that the commission’s 

orders were unreasonable or unlawful. R.C. 4903.13; Monongahela Power Co.,

104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. Pilkington has not 

carried that burden in this appeal. Therefore, we affirm the commission’s orders. 

 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. 

_________________