dissenting. The matter before this court involves an underlying action for declaratory judgment filéd in the Franklin County Common Pleas Court seeking a determination as to the constitutionality of R.C. 4909.42. Relator requests a writ of prohibition, contending that the common pleas court lacks jurisdiction. Specifically, relator asserts that since this matter involves the issue of utility rates, it falls within the exclusive jurisdiction of the Public Utilities Commission of Ohio (“PUCO”).
Recently, this court was faced with a similar issue. While the case did not involve the constitutionality of a rate statute, it did involve the jurisdiction of the common pleas court in an action seeking interest on the overpayment of utility rates. In Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 573 N.E.2d 655, the consumer, Kazmaier Supermarket, Inc. (“Kazmaier”), asserted that Toledo Edison Company had acknowledged its negligence by admitting the overpayment and refunding this overpayment to Kazmaier. Kazmaier brought suit in the common pleas court seeking interest on the overpayment. A majority of this court stated:
“In regard to administrative agency exclusivity, generally, this court has recognized that where the General Assembly has enacted a complete and comprehensive statutory scheme governing review by an administrative agency, exclusive jurisdiction is vested within such agency. State, ex rel. Geauga Cty. Budget Comm., v. Geauga Cty. Court of Appeals (1982), 1 Ohio St.3d 110, 113, 1 OBR 143, 146, 438 N.E.2d 428, 431; see, also, State, ex rel. Northern Ohio Tel. Co., v. Winter, supra, 23 Ohio St.2d at 9-10, 52 O.O.2d at 31, 260 N.E.2d at 829-830; State, ex rel. Ohio Bell Tel. Co., v. Cuyahoga Cty. Court of Common Pleas (1934), 128 Ohio St. 553, 1 O.O. 99, 192 N.E. 787.
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“ * * * The root of the complaint is that the rate imposed by Toledo Edison was unreasonable and in violation of law. Although the allegations of the complaint seem to sound in tort and contract law, it must not be forgotten that the contract involved is the utility rate schedule. A dollar determination of the amount of the rate overcharge, if any, would require an analysis of the rate structure and various charges that were in effect under each of the tariff schedules during the period. This process of review and determination of any overcharges, and of the duty of the utility, under the circumstances, to disclose any lower rates available to the customer, is best accomplished by the commission with its expert staff technicians familiar with the utility commission provisions.” Id,., 61 Ohio St.3d at 153, 573 N.E.2d at 659-66Q.
The Kazmaier case did not involve a rate determination but rather interest allegedly owed by Toledo Edison on an overpayment. This court held that the PUCO must exercise its exclusive jurisdiction to make that determination and not the common pleas court.
Yet, today, a majority of this court is holding that the common pleas court has jurisdiction to determine the constitutionality of R.C. 4909.42, which involves the setting of utility rates. In essence, this is a case involving the constitutionality of an automatic increase in a utility rate. Specifically, R.C. 4909.42 provides in pertinent part that when the commission fails to respond to a request for a rate increase “pursuant to section 4909.19 of the Revised Code at the expiration of two hundred seventy-five days from the date of filing the application, the proposed increase shall go into effect upon the filing of an undertaking by the public utility. * * * ” This clearly involves a question concerning the lawful setting of utility rates.
Therefore, the exclusive jurisdiction of the PUCO should be invoked. The General Assembly has granted the commission exclusive jurisdiction to determine the mutual rights and responsibilities of the parties with regard to rates. Kazmaier, supra, at 152, 573 N.E.2d at 659. To permit the common pleas court to determine the question is simply to cause unnecessary delay since this matter would then have to proceed through the entire judicial system. The citizens of Ohio and Columbus Southern Power Company are entitled to a fair, just and expeditious resolution of this matter.
Accordingly, I would grant the writ of prohibition.
Sweeney and Wright, JJ., concur in the foregoing dissenting opinion.