Opinion
No. 80-172
Decided November 5, 1980.
Prohibition — To prevent court from exercising subject-matter jurisdiction — Remedy unavailable, when.
IN PROHIBITION.
Ohio Power Company, relator herein, seeks a writ to prohibit Judge John D. Harnishfeger, respondent herein, from exercising subject-matter jurisdiction in a cause filed in his court. Relator argues that exclusive jurisdiction of the dispute is vested in the Public Utilities Commission of Ohio.
The Board of Trustees of the Church of God of Lima, Ohio, filed suit in the Court of Common Pleas of Allen County against relator. The case was assigned to the respondent judge.
The church alleged that it was planning the construction of a new church building, and that in May 1978, its representative contacted Ohio Power regarding the availability of electric service. Its representative was told by an employee of Ohio Power that if needed, service of a type known as "3-phase" would be provided to the church at no cost; that in reliance on this statement, the church began negotiations for financing and completing its building plans; that subsequently the church was advised by Ohio Power that 3-phase service was available at a cost of $150; that still later it was advised that to provide 3-phase service to the church, a charge of $4,500 would be made for overhead service and $9,000 for underground service; that the church was ultimately charged $13,193 to have the service established; and that this latter amount was paid by the church under protest.
The church alleged further that because of this it was necessary to refinance the new building at a higher rate of interest, with larger monthly payments, and that Ohio Power was aware of the church's financial situation and of the fact that it would be necessary for the church to borrow additional funds if the payment to Ohio Power was required.
Respondent overruled a motion to dismiss by relator in the cause in the Court of Common Pleas. He did not issue a written opinion at that time, but in his answer in the instant cause states that he found "***that the complaint is based upon breach of contract" and also that plaintiffs seek "to recover monies paid, a matter over which the PUCO has no jurisdiction."
Messrs. Day, Ketterer, Raley, Wright Rybolt and Mr. John F. Buchman, for relator.
Messrs. Bowers, White DeMeo and Mr. William H. White, for respondent.
In order to support the issuance of a writ of prohibition herein, relator must show that the court in which the action is sought to be prohibited has no jurisdiction of the matter under adjudication. State, ex rel. Carmody, v. Justice (1926), 114 Ohio St. 94.
Admittedly, the power of the Public Utilities Commission under the legislative scheme of R.C. Title 49 is comprehensive and plenary. (See, especially, R.C. 4905.26 and 4905.61.) However, this does not mean that exclusive original jurisdiction over all complaints of individuals against public utilities is lodged in the commission.
"***[C]ourts of this state are available to supplicants who have claims sounding in contract against a corporation coming under the authority of the Public Utilities Commission. New Bremen v. Pub. Util. Comm. (1921), 103 Ohio St. 23; Southgate Development Corp. v. Columbia Gas Transmission Corp. (1976), 48 Ohio St.2d 211." State, ex rel. Dayton Power Light Co., v. Riley (1978), 53 Ohio St.2d 168, 169. As noted in New Bremen, supra, at pages 30-31, "[t]he public utilities commission is in no sense a court. It has no power to judicially ascertain and determine legal rights and liabilities, or adjudicate controversies between parties as to contract rights or property rights." This court, also stated in Milligan v. Ohio Bell Tel. Co. (1978), 56 Ohio St.2d 191, at page 195, that "claims sounding in contract or tort have been regarded as reviewable in the Court of Common Pleas, although brought against corporations subject to the authority of the commission.***" See, also, Richard A. Berjian, D.O., Inc., v. Ohio Bell Tel. Co. (1978), 54 Ohio St.2d 147.
It would be premature for this court to determine now that there is no state of facts that the plaintiffs might prove in the Court of Common Pleas which would exclude their case from the jurisdiction of the Public Utilities Commission and make it properly cognizable by that court.
Moreover, relator has not shown any injury for which there is no adequate legal remedy by the normal appellate process, a usual precondition to issuance of a writ of prohibition. See State, ex rel. Northern Ohio Telephone Company, v. Winter (1970), 23 Ohio St.2d 68; State, ex rel. Gilligan, v. Hoddinott (1973), 36 Ohio St.2d 127.
In State, ex rel. Dayton Power Light Co., supra, this court concluded, at page 170, that "[t]he***respondent has alleged a breach of contract***.
"Due to the extraordinary nature of the relief requested, the existence of an adequate legal remedy by the regular appellate process, and the fact that it has not been shown at this point, that the respondent judge has no jurisdiction of the subject-matter of the cause which relator seeks to prohibit, ***the writ is denied."
Accordingly, the writ prayed for is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.