CRAIG D. CORDER ET AL., Plaintiffs-Appellants,
OHIO EDISON COMPANY, Defendant-Appellee.
Appeal from the Court of Common Pleas of Harrison County,
Ohio Case No. CVH-2017-0057
Charles Kidder, Kidder Law Firm, LLC., for
Denise Hasbrook, Roetzel & Andress, LPA, for
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L.
OPINION AND JUDGMENT ENTRY
Appellants, Craig D. Corder, Jackie C. Corder, and Scott
Corder appeal the judgment entry of the Harrison County Court
of Common Pleas finding sua sponte that the Public Utilities
Commission of Ohio ("PUCO") has exclusive
jurisdiction over the issue raised in this action for
declaratory judgment and injunctive relief. Appellants
contend that the plain language of three 1948 easements,
which traverse a portion of their property, prohibits
Appellee, Ohio Edison from applying herbicide to control
vegetation growth. Appellee counters that resolution of
vegetation control issues requires PUCO's administrative
expertise, and herbicide application constitutes a practice
normally authorized by the utility. Because the resolution of
this matter turns on the interpretation of an ambiguous term
in the easements, the judgment entry of the trial court is
reversed and this matter is remanded for the trial court to
interpret the relevant language in the easements.
The standard of review for a dismissal for lack of subject
matter jurisdiction, pursuant to Civ.R. 12(B)(1), is whether
any cause of action cognizable by the forum has been raised
in the complaint. Vos v. State, 7th Dist. Columbiana
No. 16 CO 0034, 2017-Ohio-4005, 91 N.E.3d 217, ¶ 15.
Subject matter jurisdiction can be raised by the trial court
sua sponte at any time during the proceedings. Snyder
Computer Sys. v. Sayas Auto Sales, 7th Dist. Jefferson
No. 09-JE-6, 2009-Ohio-6759, ¶ 15. A court applying
Civ.R. 12(B)(1) is not confined to the allegations of the
complaint and may consider material pertinent to the subject
matter jurisdiction inquiry. DeLost v. First Energy
Corp., 7th Dist. Mahoning No. 07 MA 194, 2008-Ohio-3086,
¶ 17. Lack of subject matter jurisdiction is a questions
of law that we review de novo. Id.
The General Assembly enacted R.C. 4901.01 et seq. to regulate
the business activities of public utilities and created PUCO
to administer and enforce these provisions. Kazmaier
Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St.3d
147, 150, 573 N.E.2d 655 (1991). R.C. 4905.26 provides that
PUCO shall hear complaints filed against public utilities
alleging 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."
The Ohio Supreme Court has long recognized that the"
'jurisdiction specifically conferred by statute upon
[PUCO] over public utilities of the state * * * is so
complete, comprehensive and adequate as to warrant the
conclusion that it is likewise exclusive.'"
State ex rel. N. Ohio Tel. Co. v. Winter, 23 Ohio
St.2d 6, 9, 260 N.E.2d 827 (1970), quoting State ex rel. Ohio
Bell Tel. Co. v. Cuyahoga Cty. Court of Common
Pleas, 128 Ohio St. 553, 557, 192 N.E. 787 (1934);
see also Kazmaier, 61 Ohio St.3d at 152,
573 N.E.2d 655. Nonetheless, the broad jurisdiction of PUCO
over service-related matters does not affect the basic
jurisdiction of the court of common pleas in other areas of
possible claims against utilities, including pure tort and
contract claims. State ex rel. Ohio Edison Co. v.
Shaker, 68 Ohio St.3d 209, 211, 625 N.E.2d 608 (1994).
In deciding whether the claims raised by the complaint are
pure contract or tort claims that do not fall within
PUCO's exclusive jurisdiction, courts look to the
substance of the claims. In other words, "[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 relating to service, a claim which
only [PUCO] has jurisdiction to resolve." Higgins v.
Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 202,
736 N.E.2d 92 (2002). See, also, State ex rel. Columbia
Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 810
N.E.2d 953, 2004-Ohio-3208, ¶ 19.
In Allstate Ins. Co. v. Cleveland Elec. Illum. Co.,
119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶
12-13, the Supreme Court of Ohio adopted a two-part inquiry
to determine whether PUCO has exclusive jurisdiction over an
action: First, is PUCO's administrative expertise
required to resolve the issue in dispute? If the answer is
"yes," a court must determine next if the act
complained of constitutes a practice normally authorized by
the utility. Id. at ¶ 11. If both questions are
answered in the affirmative, the claim is within PUCO's
exclusive jurisdiction. Id. at ¶ 12.
Nevertheless, the Ohio Supreme Court in Allstate
acknowledged that PUCO is not a court and has no power to
judicially ascertain and determine legal rights and
liabilities. Id. at ¶ 6, citing State ex
rel. Dayton Power & Light Co. v. Riley, 53 Ohio
St.2d 168, 170, 373 N.E.2d 385 (1978). See New Bremen v.
Pub. Util. Comm., 103 Ohio St. 23, 30-31, 132 N.E. 162
(1921). Stated differently, "[PUCO] does not possess
judicial power and may not adjudicate controversies between
parties as to property rights." Dayton
Communications Corp. v. Pub. Util. Comm., 64 Ohio St.2d
302, 303-304, 414 N.E.2d 1051 (1980). The Allstate
Court also categorically rejected the argument that every act
by a utility is service-related. Id. at ¶ 6.
An interested party may recover damages against the public
utility for matters within PUCO's jurisdiction by
invoking the formal complaint procedure outlined in R.C.
4905.61. If a customer or interested party establishes their
claims, they may seek an award of treble damages against the
utility in court. DiFranco v. FirstEnergy Corp.,
11th Dist. Geauga No. 2010-G-2990, 2011-Ohio-5434, 969 N.E.2d
1241, reversed on other grounds at 134 Ohio St.3d 144,
2012-Ohio-5445, 980 N.E.2d 996.
A declaratory judgment action is a statutory in nature. R.C.
2721.03, reads, in pertinent part:
* * *any person interested under a deed, will, written
contract, or other writing constituting a contract or any
person whose rights, status, or other legal relations are
affected by a constitutional provision, statute, rule as
defined in section 119.01 of the Revised Code, municipal
ordinance, township resolution, contract, or franchise may
have determined any question of construction or validity
arising under the instrument, constitutional provision,
statute, rule, ordinance, resolution, contract, or franchise
and obtain a declaration of rights, status, or other legal
relations under it.* * *
"To obtain declaratory judgment as an alternative to
other remedies, a plaintiff must demonstrate three elements:
(1) that a real controversy exists between adverse parties;
(2) which is justiciable in nature; (3) and that speedy
relief is necessary to the preservation of rights which may
be otherwise impaired or lost." Fairview Gen. Hosp.
v. Fletcher, 63 Ohio St.3d 146, 148-49, 586 N.E.2d 80
(1992), citing Herrick v. Kosydar, 44 Ohio St.2d
128, 130, 339 N.E.2d 626 (1975). Parties to an easement
commonly seek adjudication of disputed issues through the
mechanism of declaratory judgment. See, e.g.
Cliffs & Creeks, LLC. v. Swallie, 7th Dist.
Belmont No. 17 BE 0039, 2018-Ohio-5410; Hills &
Hollers, LLC v. Ohio Gathering Co., LLC, 7th Dist.
Belmont No. 17 BE 0040, 2018-Ohio-2814, 116 N.E.3d 801,
reconsideration denied, 7th Dist. Belmont No. 17 BE 0040,
2018-Ohio-3425, and appeal not allowed sub nom. Hills
& Hollers, LLC. v. Ohio Gathering Co., 154 Ohio
St.3d 1464, 2018-Ohio-5209, 114 N.E.3d 215: Watson v.
Caldwell Hotel, LLC, 7th Dist. Noble No. 16 NO 0432,
2017-Ohio-4007, 91 N.E.3d 179.
An easement is "the grant of a use on the land of
another." Hills & Hollers, LLC v. Ohio Gathering
Co., LLC, 7th Dist. Belmont No. 17 BE 0040,
2018-Ohio-2814, 116 N.E.3d 801, ¶ 28, reconsideration
denied, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-3425,
¶ 28, and appeal not allowed sub nom. Hills &
Hollers, LLC. v. Ohio Gathering Co., 154 Ohio St.3d
1464, 2018-Ohio-5209, 114 N.E.3d 215, ¶ 28, citing
Alban v. R.K. Co., 15 Ohio St.2d 229, 231-232, 239
N.E.2d 22 (1968). When an easement is created by an express
grant, the easement's extent and limitations depend on
the language in the grant. Id., citing
Alban at 232. When the terms of an easement are
clear and unambiguous, a court cannot create new terms by
finding an intent not expressed in the language used.
Id., citing Alexander v. Buckeye Pipe Line
Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). The
language of the easement, considered in light of the
surrounding circumstances, is the best indication of the
extent and limitations of the easement. State ex rel.
Wasserman v. Fremont, 140 Ohio St.3d 471,
2014-Ohio-2962, 20 N.E.3d 664, ¶ 28, citing Apel v.
Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d 600 (1998).
Appellee is a public utility providing electric service to
its customers. Appellants own four parcels of land in
Township of Nottingham, Harrison County. 12.1 acres of
Appellants' property ("Property") are traversed
by three separate easements.
easements were executed in 1948 by previous owners of the
Property. The easements contain identical language and grant
the right to erect, inspect, operate, replace, repair, patrol
and permanently maintain upon, over and along the above
described right-of-way across said premises all necessary
structures, wires and other usual fixtures and appurtenances
used for or in connection with the transmission and
distribution of electric current, and the right of ingress
and egress upon, over and across said premises for access to
and from said right-of-way, and the right to trim, cut
and remove at any and all times such trees,
limbs, underbrush or other ...