Hull v. Columbia Gas of Ohio

{¶ 22} I respectfully disagree from the majority's determination that the trial court had jurisdiction to hear appellant's alleged contract claims and from its reversal of the judgment of the trial court granting the motion to dismiss of Columbia Gas.

{¶ 23} This dispute arises from the Columbia Gas Customer Choice Program, which was implemented after the PUCO approved modifications to Columbia's tariff in 1997. Under this program, appellant had the opportunity to select any listed marketer. The purpose of this plan was to enable customers to realize potential savings by purchasing gas for less than Columbia's price.

{¶ 24} Appellant accepted an offer from Energy Max to provide natural gas for one year at the fixed rate of $0.36 per 100 cubic feet. Appellant accepted this offer and entered into a contract with Energy Max for a period of one year beginning March 15, 2000. Appellant experienced savings under this agreement until August 30, 2000, when Columbia notified appellant that Energy Max had failed to deliver the natural gas it had contracted to deliver for appellant's use. Columbia terminated Energy Max from the Choice Program, and Columbia assumed the role of appellant's natural gas supplier at its current rate of $0.62593 per 100 cubic feet. Columbia also informed appellant that he was free to contract with any other marketer participating in the Choice Program.

{¶ 25} On October 18, 2000, appellant filed a class-action complaint for breach of contract and breach of implied warranty, including a claim for statutory treble damages and a claim for damages arising out of an agency relationship between Energy Max and Columbia and requesting injunctive relief. Columbia filed a motion to dismiss the complaint based on lack of jurisdiction over the subject matter. Appellant dismissed Count 3 of the complaint, his claim for treble damages under R.C. 4905.61, acknowledging that that claim was under the exclusive jurisdiction of the PUCO. Appellant argues that the remaining claims constitute contract claims.

{¶ 26} Ohio courts have recognized the legislative mandate that control of public utilities be within the administrative agency, the PUCO. This is particularly applicable to customer challenges of rates and charges. In Kazmaier Supermarket, Inc.v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 573 N.E.2d 655, the court also recognized that plaintiff's claim had elements and characteristics of a common-law right to be asserted in tort or contract. However, the court concluded that whether expressly alleged or not, the plaintiff's claim was that it was subjected to an unjust and unreasonable rate in violation of R.C. 4905.22, and the court concluded that the rate dispute came under the exclusive jurisdiction of the PUCO. Subsequent cases have concluded that although a plaintiff may cast the utility's behavior as sounding under tort theories of liability, if the underlying dispute remained service-related it fell within the PUCO's exclusive jurisdiction. *Page 702

{¶ 27} In this case appellant's dispute with Columbia is essentially that the rate charged after Columbia terminated Energy Max from the Choice Program was unlawful. Labeling these claims as anything other than a rate dispute does not change their character.

{¶ 28} Additionally, Section VI(E) of Columbia's tariff, which is on file with, and approved by, the PUCO, provides for Columbia's termination of Energy Max from the Choice Program and reinstitution of Columbia's service to appellant. This provision states:

{¶ 29} "If a Marketer fails to deliver gas in accordance with the requirements of the Columbia Customer Choice Program, or otherwise fails to comply with Paragraph 67(E) of the tariff, Columbia shall have the discretion to suspend temporarily or terminate such Marketer's participation in the Columbia Customer CHOICE Program. If the Marketer is suspended or expelled from Columbia's Customer CHOICE Program, customers in the Marketer's Customer Group shall revert to Columbia sales service, unless and until said customer joins another Marketer Customer Group."

{¶ 30} It is clear that this section of the tariff contemplates situations similar to that which is before the court and does not make Columbia the guarantor of the rate contracted for by the marketer and indicates clearly that appellant had the option to seek another lower-priced supplier of natural gas. The only breach-of-contract claim present in this case involves Energy Max.

{¶ 31} Therefore, the trial court properly determined that it did not have jurisdiction in regard to appellant's dispute with Columbia, and I would affirm the judgment of the trial court.