[Cite as Jones v. Ohio Edison Co., 2014-Ohio-5466.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY, OHIO 

LORETTA JONES, et al., : O P I N I O N 

 Plaintiffs-Appellants, :

CASE NO. 2014-A-0015

 - vs - :

OHIO EDISON COMPANY, :

 Defendant-Appellee. :

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013 CV 

00623. 

Judgment: Affirmed. 

Mark D. McGraw, 1370 Ontario Street, #800, Cleveland, OH 44113-1752 (For 

Plaintiffs-Appellants). 

John T. Dellick, Harrington, Hoppe & Mitchell, Ltd., 1200 Sky Bank Building, 26 Market 

St., Suite 1200, P.O. Box 6077, Youngstown, OH 44501-6077 (For DefendantAppellee). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellants, Loretta Jones and William Fifolt, appeal the judgment of the 

Ashtabula County Court of Common Pleas dismissing their complaint for damages 

against appellee, Ohio Edison Company, for lack of subject-matter jurisdiction. At issue 

is whether appellants’ complaint represents a service complaint, which is within the 

exclusive jurisdiction of the Public Utilities Commission of Ohio (“PUCO”). For the 

reasons that follow, we affirm. 
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{¶2} Appellants filed this action against Ohio Edison, a public utility, which 

provided electricity to them at their former residence in Dorset, Ashtabula County, Ohio. 

In their complaint, appellants alleged that in mid- or late-July 2011, Ohio Edison 

replaced the utility pole that carries power lines to their residence. They alleged that 

Ohio Edison was negligent in connecting the power lines to the pole by using faulty 

equipment; connecting the lines too tightly to the pole; or connecting them too loosely. 

Appellants alleged that about one month later, on August 14, 2011, due to Ohio 

Edison’s negligence, the power lines snapped off the pole, causing a power surge at 

their residence, resulting in damage to certain electric appliances and wiring. 

Appellants sought damages in the amount of $25,000. 

{¶3} In response, Ohio Edison filed a motion to dismiss the complaint for lack 

of subject-matter jurisdiction, pursuant to Civ.R. 12(B)(1). Ohio Edison argued that, 

although appellants couched their complaint in terms of a negligence claim, the 

complaint asserted a claim arising from a power surge, which constitutes a service 

complaint, a matter within the exclusive jurisdiction of PUCO. Appellants filed a brief in 

opposition, arguing that PUCO did not have jurisdiction over their negligence claim. 

Upon considering the parties’ briefs, the trial court entered judgment granting Ohio 

Edison’s motion to dismiss. 

{¶4} Appellants appeal the trial court’s judgment, asserting the following for 

their sole assignment of error: 

{¶5} “The trial court committed prejudicial error in granting defendantappellee’s, Ohio Edison Company’s, Motion to Dismiss for Lack of Subject Matter 

Jurisdiction.” 
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{¶6} Subject-matter jurisdiction is the power conferred upon a court, either by 

constitutional provision or by statute, to decide a particular matter or issue on its merits. 

State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). A motion to dismiss for lack 

of subject-matter jurisdiction is made pursuant to Civ.R. 12(B)(1), and “[t]he standard of 

review for a dismissal pursuant to Civ.R. 12(B)(1) is whether any cause of action 

cognizable by the forum has been raised in the complaint.” State ex rel. Bush v. 

Spurlock, 42 Ohio St.3d 77, 80 (1989). This court has noted, “‘in determining whether 

the plaintiff has alleged a cause of action sufficient to withstand a Civ.R. 12(B)(1) motion 

to dismiss, the trial court is not confined to the allegations of the complaint and it may 

consider material pertinent to such inquiry without converting the motion into one for 

summary judgment.’” Kinder v. Zuzak, 11th Dist. Lake No. 2008-L-167, 2009-Ohio3793, ¶10, quoting McHenry v. Industrial Com. of Ohio, 68 Ohio App.3d 56, 62 (4th 

Dist.1990). 

{¶7} Further, in ruling on a Civ.R. 12(B)(1) motion to dismiss, the court is not 

required to take the allegations in the complaint at face value. N. Central Local Edn. 

Assn. v. N. Central Local School Dist. Bd. of Edn., 9th Dist. Wayne No. 96CA0011, 

1996 Ohio App. LEXIS 4349, *3 (Oct. 2, 1996). “‘[N]o presumptive truthfulness attaches 

to [the] plaintiff’s allegations[.] * * *’” Id., quoting Mortensen v. First Fed. S. & L. Ass’n., 

549 F.2d 884, 891 (3d Cir.1977). Further, we review an appeal of a dismissal for lack of 

subject-matter jurisdiction under Civ.R. 12(B)(1) de novo. Washington Mut. Bank v. 

Beatley, 10th Dist. Franklin No. 06AP-1189, 2008-Ohio-1679, ¶8. 

{¶8} “The General Assembly has created a broad and comprehensive statutory 

scheme for regulating the business activities of public utilities.” Kazmaier Supermarket, 
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Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 150 (1991). “R.C. Title 49 sets forth a 

detailed statutory framework for the regulation of utility service and the fixation of rates 

charged by public utilities to their customers.” Id. As part of that scheme, the legislature 

created PUCO, and “empowered it with broad authority to administer and enforce the 

provisions of Title 49.” Id. 

{¶9} R.C. 4905.26 provides that PUCO shall determine any complaint by any 

person against a public utility alleging that any rate charged or service rendered is in 

any respect unjust, unreasonable, in violation of law, or inadequate. The Ohio Supreme 

Court has interpreted this provision to confer jurisdiction upon PUCO to hear all 

complaints pertaining to service provided by a public utility, i.e., “service complaints.” 

Kazmaier, supra, at 151. Further, where PUCO has jurisdiction as provided by this 

statute, that jurisdiction is exclusive and reviewable only by the Supreme Court of Ohio. 

State ex rel. N. Ohio Tel. Co. v. Winter, 23 Ohio St.2d 6 (1970). The detailed procedure 

for filing rate and/or service complaints set forth in R. C. 4905.26 expresses the 

intention of the General Assembly that such powers were to be vested solely in PUCO. 

Winter, supra, at 9. 

{¶10} However, courts retain limited subject-matter jurisdiction over “pure tort 

claims” and certain contract actions involving public utilities. State ex rel. Illuminating 

Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, ¶20. 

{¶11} Thus, we must determine whether appellants’ claim falls within the 

exclusive jurisdiction of PUCO or is a pure tort claim within the jurisdiction of the 

common pleas court. Id. at ¶21. “‘[C]asting the allegations in the complaint to sound in 

tort * * * is not sufficient to confer jurisdiction upon a trial court’ when the basic claim is 
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one that the commission has exclusive jurisdiction to resolve.” Id., quoting Higgens v. 

Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 202 (7th Dist.2000). Moreover, in 

Allstate Ins. Co. v. Cleveland Electric Illuminating Co, 119 Ohio St.3d 301, 2008-Ohio3917, ¶8, the Supreme Court rejected the notion that alleging a tort is sufficient, by 

itself, to confer jurisdiction upon the common pleas court. The Supreme Court held that 

in cases involving public utilities, jurisdiction is not conferred based solely on the 

pleadings. Id. Instead, courts must look to the substance of the allegations in the 

complaint to determine the proper jurisdiction. Id. at ¶9; Illum. Co., supra, citing 

Kazmaier, supra, at 154. 

{¶12} Further, while “trial courts determine their own jurisdiction,” such 

determinations can be challenged. Allstate, supra, at ¶11. The Ohio Supreme Court in 

Allstate, adopted a two-part test to help courts decide when a trial court, rather than 

PUCO, has jurisdiction over a case involving a public utility alleged to have committed a 

tort, i.e., a “pure tort.” Under this test, a court asks (1) whether 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. If the answer to either 

question is “No,” the claim is one for a pure tort and is not within PUCO’s exclusive 

jurisdiction. Id. at ¶11-13. Thus, the answer to both questions must be yes in order for 

the claim to fall within PUCO’s jurisdiction. 

{¶13} With respect to the first question, the complaint alleged that Ohio Edison 

was negligent in attaching power lines to a utility pole by using faulty equipment in 

attaching the lines to the pole; connecting the power lines to the pole too tightly; or 

connecting them too loosely. 
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{¶14} In determining whether appellants’ claim presents a service complaint (in 

PUCO’s jurisdiction) or a pure tort (in the court’s jurisdiction), we first consider the 

substance of the allegations of the complaint. While appellants cast the allegations in 

the complaint to sound in tort, the issue presented here is whether Ohio Edison 

provided faulty service to appellants resulting in a power surge and property damage. 

Thus, regardless of how appellants couched the language in the complaint, their claim 

more closely resembles service-related claims than pure tort actions. Hiener v. 

Cleveland Electric Illuminating Co., 11th Dist. Geauga No. 95-G-1948, 1996 Ohio App. 

LEXIS 3358 (Aug. 9, 1996) (tort claim for damages caused to a television set from a 

power surge more closely resembled service complaint than a pure tort action and fell 

within R.C. Chapter 4905 regulating service complaints); LaForge v. Cleveland Electric 

Illuminating Co., 115 Ohio App.3d 740 (11th Dist.1996) (complaint against utility alleging 

it caused damage to plaintiff’s furnace during period of low voltage known as a 

“brownout” was clearly service-related); Miles Mgmt. Corp. v. FirstEnergy Corp., 8th 

Dist. Cuyahoga No. 84197, 2005-Ohio-1496 (manner in which electric company 

provided or failed to provide electrical service is service-related and within PUCO’s 

jurisdiction). 

{¶15} In contrast, Allstate, supra, provides a typical example of a case against 

an electric utility involving a pure tort. In Allstate, the plaintiff noticed a large tree limb 

leaning on the power lines leading to her home. Over a period of five hours, she called 

CEI three times to report the situation. Shortly after the last call, the lines broke, 

causing sparks that set her home on fire, resulting in extensive damage. Allstate paid 

the claim and asserted a subrogation claim against CEI. The trial court denied CEI’s 
 7

motion to dismiss. The Supreme Court upheld the trial court’s judgment, holding that 

the substance of Allstate’s claim was that CEI was negligent in failing to respond to 

emergency calls from the property owner. Id. at ¶14. The Court held Allstate’s claim 

was no different from those brought against a business that negligently fails to correct a 

known dangerous condition on its property. Id. The Court held the ultimate issue was 

whether the delay between CEI’s receipt of the calls and arrival at the residence was 

reasonable and that this issue was appropriate for resolution by a jury. Id. The Court 

held the expertise of PUCO was not necessary to resolve the case. Id. Thus, the Court 

held PUCO did not have exclusive jurisdiction over the matter. Id. 

{¶16} Further, the issue of whether Ohio Edison provided faulty service resulting 

in a power surge is expressly governed by Ohio Edison’s tariff on file with and approved 

by PUCO. The General Assembly has given PUCO statutory authority to review and 

approve tariffs. Migden-Ostrander v. Pub. Util. Comm., 102 Ohio St.3d 451, 2004-Ohio3924, ¶8, fn. 5. “Public utility tariffs are books or compilations of printed materials filed 

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

charges, rules and regulations, and standards for service.” Id. 

{¶17} In Hull v. Columbia Gas of Ohio, 110 Ohio St.3d 96, 2006-Ohio-3666, the 

Supreme Court of Ohio held, “‘it is readily apparent that the General Assembly has 

provided for commission oversight of filed tariffs, including the right to adjudicate 

complaints involving customer rates and services.’” Id. at ¶20, quoting Kazmaier, supra, 

at 151. Once approved by PUCO, a tariff has the same binding effect as a law. See 

Erie Railroad Co. v. Steinberg, 94 Ohio St. 189 (1916), paragraph four of the syllabus; 
 8

Anthony Carlin Co. v. Hines, 107 Ohio St. 328 (1923), paragraph one of the syllabus; 

Carter v. Am. Tel. & Tel. Co., 365 F.2d 486, 496 (5th Cir.1966). 

{¶18} Section IV(B) of Ohio Edison’s tariff provides: 

{¶19} Continuity. The Company will endeavor, but does not guarantee, 

to furnish a continuous supply of electric energy and to maintain 

voltage and frequency within reasonable limits. The Company shall 

not be liable for damages which the customer may sustain due to 

variations in electric service characteristics * * *. 

{¶20} In addition, Section X(B) of Ohio Edison’s tariff provides: 

{¶21} Limitation of Liability. The Company shall not be liable for any 

loss, cost, damage, or expense that the customer may sustain by 

reason of damage to or destruction of any property, including the 

loss of use thereof, arising out of, or in any manner connected with 

* * * high or low voltage * * * except such damages that are caused 

by or due to the willful and wanton misconduct of the Company. 

(Emphasis added.) 

{¶22} In Hiener, supra, this court addressed limitation-of-liability provisions 

related to power surges similar to those at issue here. In that case, CEI’s tariff provided 

that CEI would not be liable for damages sustained due to interruptions of service, 

variations in service characteristics, or high or low voltage whether or not such damages 

were caused by any negligence of CEI, except such damage that was caused by willful 

and wanton misconduct of CEI. In Hiener, this court held that because the plaintiff’s 
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“cause of action [fell] within the parameters of CEI’s tariffs, review by any court other 

than the Supreme Court would amount to usurpation of authority.” Id. at *4-*5. 

{¶23} Similarly in LaForge, supra, where the plaintiff’s furnace was damaged 

during a period of low voltage referred to as a “brownout,” this court held the complaint 

was covered by the same tariff at issue in Hiener, and thus review by a trial court or an 

appellate court other than the Supreme Court would result in usurpation of authority. 

LaForge at 741. 

{¶24} The Seventh District considered a case quite similar to the one before us 

in Valentin v. Ohio Edison, 7th Dist. Mahoning No. 11 MA 93, 2012-Ohio-2437. In 

Valentin, the plaintiff alleged that Ohio Edison’s faulty wire caused a power surge, which 

in turn ruined various electronics in his home. He further asserted that the substance of 

his claim is that Ohio Edison was negligent in failing to inspect, repair, and maintain its 

electric feed wire that is attached to his house. Ohio Edison filed a motion to dismiss, 

arguing that PUCO has the sole authority to hear and determine electric service 

complaints from its customers. In opposition, the plaintiff argued his complaint asserted 

a negligence claim and, therefore, did not fall within PUCO’s exclusive jurisdiction. In 

considering the identical tariff provisions as those before us in the instant case, the 

Seventh District, citing this court’s holding in LaForge, supra, held: “When the plaintiff’s 

cause of action falls within the parameters of the utility company’s tariffs, review by a 

common pleas court or appellate court would result in usurpation of authority from 

PUCO and the Ohio Supreme Court.” Valentin at ¶17. As a result, the Seventh District 

held that the answer to the first question of the Allstate test, i.e., whether PUCO’s 

expertise was required to resolve the dispute, was yes. Valentin at ¶19. 
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{¶25} Further, in considering a power-surge claim against an electric utility, the 

Eighth District in Pro Se Commercial Properties v. Illuminating Co., 8th Dist. Cuyahoga 

No. 92961, 2010-Ohio-516, stated: 

{¶26} [T]he plaintiffs argue that CEI is responsible for damages stemming 

from two alleged power surges. Plaintiffs’ claim calls into question 

the manner by which CEI provided electrical service. In addressing 

the power surges, it will be necessary to determine whether CEI’s 

response and correction of the problem complied with industry 

standards. The answers to these questions require the expertise of 

the PUCO administration because jurors do not have the 

experience or understanding regarding the distribution of electricity. 

The determination of issues related to applicable laws and 

regulations, industry practices and standards, is best accomplished 

by PUCO with its expert staff technicians familiar with the utility 

commission provisions. Id. at ¶11. 

{¶27} Because appellants’ claim is covered by Ohio Edison’s tariff, review of 

their claim by this court would amount to usurpation of PUCO’s exclusive jurisdiction. 

Hiener, supra, at *4-*5. 

{¶28} In light of the foregoing analysis, we agree with the trial court’s finding 

that, under the first part of the Allstate test, the answer to the question whether PUCO’s 

administrative expertise is required to resolve the issue in dispute, the answer is “yes.” 

{¶29} Next, under the second step of the Allstate test, we determine whether the 

act complained of constitutes a practice normally authorized by Ohio Edison. 
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{¶30} Appellants’ complaint alleges that Ohio Edison improperly connected the 

power lines to the utility pole, which caused the lines to snap, a power surge in 

appellants’ home, and resulting damage to some of their electronics and wiring. As the 

Seventh District stated in Valentin, “[w]hat appellants allege falls under the broad 

category of service, which is within PUCO’s jurisdiction.” Id. at ¶21. The appellate court 

in Valentin stated that “quality of service complaints fall under PUCO’s jurisdiction.” Id., 

citing Miles, supra, at ¶12. Further, the court in Valentin stated that “[a] power surge is 

a service-related complaint.” Valentin, supra, citing Hiener, supra. Likewise, the court in 

Valentin stated that “a period of low voltage, commonly called a ‘brownout,’ is also 

service-related. Id., citing LaForge, supra, at 741. The Seventh District in Valentin

stated: “‘When one suffers damages related to events that are purely electrical, * * * the 

claim is service-related and under PUCO's jurisdiction.” Id., quoting Pro Se Commercial 

Properties, supra, at ¶15. 

{¶31} In Valentin, supra, the Seventh District stated the plaintiff’s claim that too 

much power was provided to his home causing damage to his electronics constituted a 

claim that there was a problem with his service resulting from a faulty wire and power 

surge. Thus, the court held the act complained of constituted a practice normally 

authorized by the utility, satisfying the second step of the Allstate test. Valentin, supra, 

at ¶22. 

{¶32} As in Valentin, here, appellants claimed that too much power was 

provided to their home causing damage to their electronics. In other words, appellants 

claimed there was a problem with their service that resulted from Ohio Edison’s 

improper connection of the power lines to the utility pole. As a result, the act 
 12

complained of, i.e., the connection of the power lines to the pole, constituted a practice 

normally authorized by the utility. 

{¶33} Moreover, the practice of repairing and replacing utility poles and power 

lines is specifically authorized by OAC 4901:1-10-27. That section of the Ohio 

Administrative Code provides: 

{¶34} Each electric utility shall establish and maintain written programs, 

procedures, and schedules for the * * * repair and replacement of 

its transmission and distribution circuits and equipment. These 

programs shall establish preventative requirement for the electric 

utility to maintain safe and reliable service. 

{¶35} For this additional reason, the repair and replacement of an electric utility’s 

utility poles and the attachment of power lines to those poles are practices normally 

authorized by Ohio Edison. 

{¶36} Further, contrary to appellants’ argument that they could not recover their 

damages if they filed their complaint with PUCO, R.C. 4905.61 provides: 

{¶37} If any public utility * * * does * * * any act * * * prohibited by 

Chapters 4901., 4903., 4905., 4907., 4909., 4921., 4923., and 

4927. of the Revised Code, or declared to be unlawful, or omits to 

do any act * * * required by the provisions of those chapters, * * * 

the public utility * * * is liable to the person * * * injured thereby in 

treble the amount of damages sustained in consequence of the 

violation, failure, or omission. 
 13

{¶38} Thus, if appellants are able to establish their claims before the PUCO and 

the PUCO determines the companies’ conduct is prohibited by R.C. 4905.61, appellants 

can then seek an award of treble damages against them in court. DiFranco v. First 

Energy, 11th Dist. Geauga No. 2010-G-2990, 2011-Ohio-5434, ¶69, reversed on other 

grounds at 134 Ohio St.3d 144, 2012-Ohio-5445. Thus, contrary to appellants’ 

argument, R.C. 4905.61 provides for an award of damages to claimants damaged by a 

public utility. 

{¶39} In summary, no matter how their claim is labeled, appellants are 

complaining about a service regularly provided by Ohio Edison. In view of the foregoing 

analysis, we agree with the trial court’s finding that, under the second part of the Allstate

test, the answer to the question whether the act complained of constituted a practice 

normally authorized by Ohio Edison, the answer is also “yes.” 

{¶40} We therefore hold that because both questions of the Allstate test are 

properly answered in the affirmative, the trial court did not err in finding that appellants’ 

claim is within PUCO’s exclusive jurisdiction. 

{¶41} For the reasons stated in this opinion, appellants’ assignment of error is 

overruled. It is the order and judgment of the court that the judgment of the Ashtabula 

County Court of Common Pleas is affirmed. 

TIMOTHY P. CANNON, P.J., 

THOMAS R. WRIGHT, J., 

concur.