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Dispute Between Property Owner and Utility Over Easement Must Be Settled by Court, Not Public Utilities Commission

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2011-0737.  In re Complaint of Wilkes v. Ohio Edison Co., Slip Opinion No. 2012-Ohio-609.
Public Utilities Commission, No. 09-682-EL-CSS. Order affirmed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-609.pdf

Video clip View oral argument video of this case.

(Feb. 22, 2012) In a 7-0 decision announced today, the Supreme Court of Ohio ruled that a legal dispute between a Boardman family and the Ohio Edison electric company over the proximity of two structures on the couple’s property to the company’s overhead power lines must be resolved through the local courts, rather than through a complaint proceeding before the state public utilities commission.

The Court’s decision, authored by Justice Yvette McGee Brown, affirmed a ruling by the Public Utilities Commission of Ohio (PUCO) that dismissed for lack of jurisdiction a regulatory complaint that had been filed with the commission by the property owners, Thomas and Derrell Wilkes. 

The dispute arose in 2008 when Ohio Edison notified the Wilkeses that an above-ground swimming pool and a storage shed they had built on their property were closer to the utility’s 69,000 volt electric transmission line than is permitted by the National Electrical Safety Code. The company asked the Wilkeses to either relocate or remove the structures.  The Wilkeses hired an attorney, who sent a letter threatening to pursue criminal trespass charges against any Ohio Edison employee who attempted to enter their property.

Ohio Edison filed suit in the Mahoning County Court of Common Pleas seeking a court order enforcing the utility’s easement over the portion of the Wilkeses property on which the pool and shed stood. The Wilkeses responded by filing a complaint against Ohio Edison with the PUCO, asserting that the case was a service-related dispute between a utility company and a customer, and therefore fell within the exclusive jurisdiction of the PUCO.  The complaint asked the commission to resolve the dispute by ordering the utility company to move its power line.

Ohio Edison filed a motion to dismiss the Wilkeses’ complaint, arguing that the PUCO did not have jurisdiction over the matter because it did not require technical analysis of public utility law or regulations, but merely raised a question of competing property rights that must be resolved by a court. The PUCO granted the utility’s motion to dismiss. The Wilkeses exercised their right to appeal the PUCO’s order to the Supreme Court.

Writing for a unanimous Court in today’s decision, Justice McGee Brown found that none of the propositions of law advanced in the Wilkeses’ appeal had merit. 

Justice McGee Brown wrote: “The Wilkeses present three propositions of law on appeal.  In the first, they argue that the commission has exclusive jurisdiction over a claim for ‘service-related issues’ that ‘calls for the interpretation and enforcement of the National Electrical Safety Code.’  However, the Wilkeses have not stated such a claim. ... A claim is within the exclusive jurisdiction of the commission if (1) the commission’s administrative expertise is required to resolve the issue in dispute and (2) the act complained of is a practice normally authorized by the utility. ... The Wilkeses have not shown that the commission’s expertise is required to resolve the disputed issue. Their only jurisdictional theory is that this case requires the commission to interpret the National Electrical Safety Code. Yet, the Wilkeses offer no explanation of how the code applies to this case − indeed, they do not cite even a single page or section of it. This lack of explanation and citation of authority suffices as a basis for rejecting their argument.”

“In their second proposition of law, the Wilkeses argue that the commission had ‘independent’ jurisdiction over their claims because the claims were based upon the statutes governing the commission and the commission’s own rules. ... But the Wilkeses have not demonstrated that an ‘independent’ regulatory claim exists for the commission to resolve.  They assert that their claims are independent from those raised in the common pleas court because their claims are based upon two large collections of laws: ‘the PUCO statutes (O.R.C. 4905.01 et seq.) and Ohio Administrative Code (Ohio Admin. Code 4901, et seq.).’  This is not a meaningful assertion of a regulatory claim − to cite everything is to cite nothing.”

“As for their argument that ‘collateral attacks are permissible in the PUCO,’ it is based on a misreading of precedent. The case they depend on, W. Res. Transit Auth. v. Pub. Util. Comm. (1974), held merely that the commission could revisit its own orders, not the orders of a court.  W. Res. did not address, much less alter, the jurisdictional balance between the commission and the courts, and the case is irrelevant here.”

“The Wilkeses’ last proposition − that the commission erred by dismissing their ‘claim for unfair and discriminatory treatment’ −  is forfeited. The Wilkeses did not raise this argument in their application for rehearing before the commission, and we are jurisdictionally barred from considering such claims.   ... For these reasons, the Wilkeses have not demonstrated that the commission erred in dismissing their complaint for lack of jurisdiction. We affirm.”

Brett M. Mancino, 216.241.8333, for Thomas and Derrell Wilkes.

Thomas G. Lindgren, 614.466.4395, for the Public Utilities Commission of Ohio.

David A. Kutik, 216.586.3939, for Ohio Edison Corp.