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IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, OHIO
SUBURBAN NATURAL GAS
3
a
S
COMPANY, co
> Case No. 17 CV H 10 0585 '
Plaintiff, - a
. =
vs. =
: EVERETT H. KRUEGER, JUDGE ¢,
COLUMBIA GAS OF OHIO INC, 6uUy -
_27tt
Defendant.
307
JUDGMENT ENTRY GRANTING MOTION TO DISMISS
This matter is before the Court on Motion of Defendant Columbia Gas of Ohio, Inc.
(‘Columbia’), to Dismiss for Lack of Subject Matter Jurisdiction, filed on November 3, 2017
Plaintiff Suburban Natural Gas Company (“Suburban”) filed a Memorandum in Opposition on
November 22, 2017. Columbia filed a Reply on December 8, 2018. For the reasons that
follow, the Court grants the motion.
L STANDARD OF REVIEW
Columbia moves the Court to dismiss pursuant to Civ.R. 12(B)(1), arguing that the
Public Utilities Commission of Ohio (‘PUCO’) has exclusive jurisdiction over the causes of
action articulated in Suburban's complaint. The standard of review for a dismissal for lack of
subject matter jurisdiction 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, 537
N.E.2d 641 (1989). The Court may consider pertinent material outside the allegations of the
complaint without converting it into a motion for summary judgment. Southgate Dev. Corp.
v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), at paragraph
one of the syllabus. If the complaint exceeds the court's jurisdiction, the court is required to
dismiss the case. Civ.R. 12(H)(3).
vermmanoncoc:, (G_I. RELEVANT ALLEGATIONS AND BACKGROUND
Suburban’s complaint centers on a Stipulation that was agreed upon by the parties,
” jointly filed before the PUCO, and incorporated into an order by the PUCO. in Case Nos. 93-
1569-GA-SLF, 93-938-GA-ATR, and 94-939-GA-ATA. In the Stipulation, the parties jointly
proposed tariff modifications, agreed to exchange certain customers, and agreed to exchange
ownership and/or access to certain gas pipelines and associated facilities. The specific
clause at issue in this matter provides:
Nothing in this Stipulation shall be construed as preventing Columbia from
installing, in any of the areas described, a high-pressure natural gas pipeline,
the purpose of which is to be limited to transporting gas from existing and future
sources of supply to various gas distribution systems owned and operated by
Columbia in southern Delaware and northern Franklin Counties to points
outside of said areas, which pipeline shall also be available, subject to
appropriate rate and service conditions, as a supply source for Suburban’s
system.
Stipulation, Section A, Paragraph 10. The Stipulation provided that it would have legal
effect only if approved in full by the PUCO. The PUCO adopted and approved the Stipulation
in its January 18, 1996 Finding and Order.
Suburban alleges in its complaint that Columbia installed the pipeline contemplated
by the above clause as part of the Northern Columbus Loop Project. The Northern Loop
pipeline went into service in 2006. In 2017, Suburban requested an interconnection with the
pipeline. Columbia refused, stating that Suburban had already declined Columbia’s invitation
to participate in the Northern Columbus: Loop Project in 2004, and further stating that
Columbia did not have the capacity to serve the load requested by Suburban. -
Count One of Suburban’s complaint asks this Court to declare the rights of the parties
under the Stipulation, specifically declare that the Stipulation requires Columbia to allow
Suburban to interconnect to Columbia’s Northern Loop pipeline, and apportion the costs thateach party may have to bear while developing Suburban's access to the pipeline. Count Two
of the complaint asks this Court to find Columbia in breach of the Stipulation and to either
order Columbia to specifically perform pursuant to the Stipulation or award $6.7 million in
damages.
Mt. ANALYSIS
The PUCO “has exclusive jurisdiction over various matters involving public utilities,
such as rates and charges, classifications, and service, effectively denying to all Ohio
courts (except [the Ohio Supreme Court]) any jurisdiction over such matters.” State ex
rel. Cleveland Elec. lllum. Co. v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d
447, 450, 727 N.E.2d 900 (2000). Courts such as this one are expressly prohibited from
reviewing any PUCO order or interfering with the PUCO's performance of official duties.
R.C. 4903.12.
Common pleas courts retain limited subject matter jurisdiction over pure common law
tort and certain contract actions involving utilities regulated by the PUCO. Such limited
subject matter jurisdiction may exist upon consideration of (1) whether the “PUCO’s
’ administrative expertise is required to resolve the issue in dispute,” and (2) whether “the act
complained of constitute[s] a practice normally authorized by the utility.” Allstate Ins. Co. v.
Cleveland Elec. illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, J 12.
If the answer to either of the two Allstate prongs is in the negative, the PUCO does not
have exclusive jurisdiction over the matter. /d. at 13.
Suburban asserts that no PUCO expertise is required to resolve this dispute because
Suburban’s claims purely sound in contract and merely require a basic interpretation of the
specific phrase that the “pipeline shall also be available * * * as a supply source for Suburban’s
system.” Suburban’s argument is not well-taken. An actual resolution of the claims presentedin Suburban’s complaint will require far more than the Court's basic interpretation of “shall,”
“available,” and other generic verbiage.
As a general matter, interpreting a specific term within a writing requires
consideration of the writing as a whole. Foster Wheeler Enviresponse, Inc. v. Franklin
Cty. Convention Facilities Auth., 78 Ohio St.3d 353, 361, 678 N.E.2d 519 (1997). A
comprehensive approach avoids the kind of abstract interpretation that can arise from
isolating a term and considering it in a vacuum. /d. at 363. The meaning and scope of
the alleged requirement to make Columbia's pipeline available to Suburban is dependent
upon other terms within Section A, Paragraph 10 of the Stipulation adopted by the PUCO.
In turn, the meaning and scope of Section A, Paragraph 10 is dependent upon other
provisions within the Stipulation as a whole as well as the PUCO order explaining the
reasoning behind its approval and adoption of the Stipulation.
In order to interpret and potentially enforce many terms intertwined with the
pipeline-availability phrase, the Court would need to consider statutes and regulations
that are administered and enforced by the PUCO. Suburban asks the Court to ignore all
other terms in Paragraph 10, some of which Suburban appears 3to concede would require the
expertise of the PUCO. By asking this Court to ignore other terms in the order, Suburban is
asking this Court to interpret those terms—and interpret them to be irrelevant to the parties’
tights and responsibilities. This Court cannot do so.
The PUCO's expertise will be necessary to interpret the PUCO’s own order as a
whole, as such interpretation requires an understanding of statutes that are exclusively
within the PUCO’s purview, and further requires an understanding of the PUCO’s own
goals in reaching its decision in 1996. The circumstances in this matter therefore satisfy
the first prong of the Allstate test.As for the second prong of the Allstate test, Suburban asserts that its complaint
does not involve a practice that is “normally authorized by a utility company” because the
dispute is about Columbia's business decision to partner or not partner with another
company in a particular undertaking. Suburban’s argument is not well-taken. The acts
complained of in Suburban’s complaint do not merely fault Columbia for a business -
decision that would be within any company’s discretion to make.
The acts complained of in Suburban's complaint involve Columbia’s failure to go
through a specific process of interconnection of gas pipelines as provided in an order of
the PUCO. The interconnection process requires the consent and approval of the PUCO.
R.C. 4905.48. This matter therefore involves a practice that is normally undertaken bya
utility company, regulated by the PUCO, and which was explicitly governed by the
PUCO's 1996 order. The circumstances in this matter satisfy the second prong of the
Allstate test.
Given the foregoing, the answer to both prongs of the Allstate test is in the
affirmative. Suburban’s claims are within the exclusive jurisdiction of the PUCO.
As a final matter, the Court notes that Columbia has concluded its motion to
dismiss with a request for sanctions pursuant to Civ.R. 11 and R.C. 2323.51. The Court
will not consider Columbia’s request absent a separate motion and memorandum in
support.
IV. CONCLUSION
This Court lacks subject matter jurisdiction over Plaintiff Suburban Natural Gas
Company’s complaint. The Court GRANTS the Motion of Defendant Columbia Gas of Ohio,
Inc., to Dismiss for Lack of Subject Matter Jurisdiction. The matter is therefore DISMISSEDwithout prejudice. THIS IS A FINAL APPEALABLE ORDER. THERE IS NO JUST CAUSE
FOR DELAY.
Dated: February 2, 2018
Roser 6. WiLsod, By Assiennair
The Clerk of this Court is hereby Ordered to serve a copy of this Judgment Entry upon the following by
Regular Mail, eMailbox at the Delaware County Courthouse, a Facsimile Transmission
STEPHEN D MARTIN, 50 NORTH SANDUSKY STREET, DELAWARE, OH 43015-1926
MARK A WHITT, KEYBANK BUILDING, 88 EAST BROAD STREET, SUITE 1590, COLUMBUS, OH 43215
ADAM C SMITH, 600 SUPERIOR AVE EASE, SUITE 2100, CLEVELAND, OH 44114
ANTHONY M HEALD, 125 NORTH SANDUSKY STREET, DELAWARE, OH 43015
This document
cach, atlomey/party by:
grdinary mail
attorney
a certified maee®
Date: als} 18 By P|
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IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, OHIO SUBURBAN NATURAL GAS 3 a S COMPANY, co > Case No. 17 CV H 10 0585 ' Plaintiff, - a . = vs. = : EVERETT H. KRUEGER, JUDGE ¢, COLUMBIA GAS OF OHIO INC, 6uUy - _27tt Defendant. 307 JUDGMENT ENTRY GRANTING MOTION TO DISMISS This matter is before the Court on Motion of Defendant Columbia Gas of Ohio, Inc. (‘Columbia’), to Dismiss for Lack of Subject Matter Jurisdiction, filed on November 3, 2017 Plaintiff Suburban Natural Gas Company (“Suburban”) filed a Memorandum in Opposition on November 22, 2017. Columbia filed a Reply on December 8, 2018. For the reasons that follow, the Court grants the motion. L STANDARD OF REVIEW Columbia moves the Court to dismiss pursuant to Civ.R. 12(B)(1), arguing that the Public Utilities Commission of Ohio (‘PUCO’) has exclusive jurisdiction over the causes of action articulated in Suburban's complaint. The standard of review for a dismissal for lack of subject matter jurisdiction 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, 537 N.E.2d 641 (1989). The Court may consider pertinent material outside the allegations of the complaint without converting it into a motion for summary judgment. Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), at paragraph one of the syllabus. If the complaint exceeds the court's jurisdiction, the court is required to dismiss the case. Civ.R. 12(H)(3). vermmanoncoc:, (G_I. RELEVANT ALLEGATIONS AND BACKGROUND Suburban’s complaint centers on a Stipulation that was agreed upon by the parties, ” jointly filed before the PUCO, and incorporated into an order by the PUCO. in Case Nos. 93- 1569-GA-SLF, 93-938-GA-ATR, and 94-939-GA-ATA. In the Stipulation, the parties jointly proposed tariff modifications, agreed to exchange certain customers, and agreed to exchange ownership and/or access to certain gas pipelines and associated facilities. The specific clause at issue in this matter provides: Nothing in this Stipulation shall be construed as preventing Columbia from installing, in any of the areas described, a high-pressure natural gas pipeline, the purpose of which is to be limited to transporting gas from existing and future sources of supply to various gas distribution systems owned and operated by Columbia in southern Delaware and northern Franklin Counties to points outside of said areas, which pipeline shall also be available, subject to appropriate rate and service conditions, as a supply source for Suburban’s system. Stipulation, Section A, Paragraph 10. The Stipulation provided that it would have legal effect only if approved in full by the PUCO. The PUCO adopted and approved the Stipulation in its January 18, 1996 Finding and Order. Suburban alleges in its complaint that Columbia installed the pipeline contemplated by the above clause as part of the Northern Columbus Loop Project. The Northern Loop pipeline went into service in 2006. In 2017, Suburban requested an interconnection with the pipeline. Columbia refused, stating that Suburban had already declined Columbia’s invitation to participate in the Northern Columbus: Loop Project in 2004, and further stating that Columbia did not have the capacity to serve the load requested by Suburban. - Count One of Suburban’s complaint asks this Court to declare the rights of the parties under the Stipulation, specifically declare that the Stipulation requires Columbia to allow Suburban to interconnect to Columbia’s Northern Loop pipeline, and apportion the costs thateach party may have to bear while developing Suburban's access to the pipeline. Count Two of the complaint asks this Court to find Columbia in breach of the Stipulation and to either order Columbia to specifically perform pursuant to the Stipulation or award $6.7 million in damages. Mt. ANALYSIS The PUCO “has exclusive jurisdiction over various matters involving public utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio courts (except [the Ohio Supreme Court]) any jurisdiction over such matters.” State ex rel. Cleveland Elec. lllum. Co. v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 447, 450, 727 N.E.2d 900 (2000). Courts such as this one are expressly prohibited from reviewing any PUCO order or interfering with the PUCO's performance of official duties. R.C. 4903.12. Common pleas courts retain limited subject matter jurisdiction over pure common law tort and certain contract actions involving utilities regulated by the PUCO. Such limited subject matter jurisdiction may exist upon consideration of (1) whether the “PUCO’s ’ administrative expertise is required to resolve the issue in dispute,” and (2) whether “the act complained of constitute[s] a practice normally authorized by the utility.” Allstate Ins. Co. v. Cleveland Elec. illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, J 12. If the answer to either of the two Allstate prongs is in the negative, the PUCO does not have exclusive jurisdiction over the matter. /d. at 13. Suburban asserts that no PUCO expertise is required to resolve this dispute because Suburban’s claims purely sound in contract and merely require a basic interpretation of the specific phrase that the “pipeline shall also be available * * * as a supply source for Suburban’s system.” Suburban’s argument is not well-taken. An actual resolution of the claims presentedin Suburban’s complaint will require far more than the Court's basic interpretation of “shall,” “available,” and other generic verbiage. As a general matter, interpreting a specific term within a writing requires consideration of the writing as a whole. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio St.3d 353, 361, 678 N.E.2d 519 (1997). A comprehensive approach avoids the kind of abstract interpretation that can arise from isolating a term and considering it in a vacuum. /d. at 363. The meaning and scope of the alleged requirement to make Columbia's pipeline available to Suburban is dependent upon other terms within Section A, Paragraph 10 of the Stipulation adopted by the PUCO. In turn, the meaning and scope of Section A, Paragraph 10 is dependent upon other provisions within the Stipulation as a whole as well as the PUCO order explaining the reasoning behind its approval and adoption of the Stipulation. In order to interpret and potentially enforce many terms intertwined with the pipeline-availability phrase, the Court would need to consider statutes and regulations that are administered and enforced by the PUCO. Suburban asks the Court to ignore all other terms in Paragraph 10, some of which Suburban appears 3to concede would require the expertise of the PUCO. By asking this Court to ignore other terms in the order, Suburban is asking this Court to interpret those terms—and interpret them to be irrelevant to the parties’ tights and responsibilities. This Court cannot do so. The PUCO's expertise will be necessary to interpret the PUCO’s own order as a whole, as such interpretation requires an understanding of statutes that are exclusively within the PUCO’s purview, and further requires an understanding of the PUCO’s own goals in reaching its decision in 1996. The circumstances in this matter therefore satisfy the first prong of the Allstate test.As for the second prong of the Allstate test, Suburban asserts that its complaint does not involve a practice that is “normally authorized by a utility company” because the dispute is about Columbia's business decision to partner or not partner with another company in a particular undertaking. Suburban’s argument is not well-taken. The acts complained of in Suburban’s complaint do not merely fault Columbia for a business - decision that would be within any company’s discretion to make. The acts complained of in Suburban's complaint involve Columbia’s failure to go through a specific process of interconnection of gas pipelines as provided in an order of the PUCO. The interconnection process requires the consent and approval of the PUCO. R.C. 4905.48. This matter therefore involves a practice that is normally undertaken bya utility company, regulated by the PUCO, and which was explicitly governed by the PUCO's 1996 order. The circumstances in this matter satisfy the second prong of the Allstate test. Given the foregoing, the answer to both prongs of the Allstate test is in the affirmative. Suburban’s claims are within the exclusive jurisdiction of the PUCO. As a final matter, the Court notes that Columbia has concluded its motion to dismiss with a request for sanctions pursuant to Civ.R. 11 and R.C. 2323.51. The Court will not consider Columbia’s request absent a separate motion and memorandum in support. IV. CONCLUSION This Court lacks subject matter jurisdiction over Plaintiff Suburban Natural Gas Company’s complaint. The Court GRANTS the Motion of Defendant Columbia Gas of Ohio, Inc., to Dismiss for Lack of Subject Matter Jurisdiction. The matter is therefore DISMISSEDwithout prejudice. THIS IS A FINAL APPEALABLE ORDER. THERE IS NO JUST CAUSE FOR DELAY. Dated: February 2, 2018 Roser 6. WiLsod, By Assiennair The Clerk of this Court is hereby Ordered to serve a copy of this Judgment Entry upon the following by Regular Mail, eMailbox at the Delaware County Courthouse, a Facsimile Transmission STEPHEN D MARTIN, 50 NORTH SANDUSKY STREET, DELAWARE, OH 43015-1926 MARK A WHITT, KEYBANK BUILDING, 88 EAST BROAD STREET, SUITE 1590, COLUMBUS, OH 43215 ADAM C SMITH, 600 SUPERIOR AVE EASE, SUITE 2100, CLEVELAND, OH 44114 ANTHONY M HEALD, 125 NORTH SANDUSKY STREET, DELAWARE, OH 43015 This document cach, atlomey/party by: grdinary mail attorney a certified maee® Date: als} 18 By P|