IN THE SUPREME COURT OF OHIO

PRO SE COMMERCIAL PROPERTIES,ET AL.,

Appellants,

V.

THE CLEVELAND ELECTRICILLUMINATING COMPANY,

Appellee.

CASE NO. 2010-0748Discretionary Appeal

Appeal from the Ohio Court of Appeals,Eighth Appellate District, Cuyahoga CountyCase No. CA 92961

MEMORANDUM OF APPELLEE, THE CLEVELAND ELECTRIC ILLUMINATINGCOMPANY, IN RESPONSE TO APPELLANTS' MEMORANDUM IN SUPPORT OF

JURISDICTION

BARBARA KAYE BESSER (0017624)BRUCE ELFVIN (0015694)STUART TORCH (0079667)ELFVIN & BESSER4070 Mayfield Rd.Cleveland, OH 44121(216) 382-2500 (phone)(216) 382-0250 (fax)bkb@clfvinbcsser.combbe@elfvinbesser.comstuart.torch@elfvinbesser.com

MATTHEW D. BESSERCathleen Bolek, LLC5885 Landerbrook DriveMonarch Centre #302Cleveland, Ohio 44124216-464-3004Fax: 866-542-0743

THOMAS I. MICHALS (0040822) (Counselof Record)MATTHEW M. MENDOZA (0068231)DAVID A. RUIZ (0074543)CALFEE, HALTER & GRISWOLD LLP800 Superior Avenue, Suite 1400Cleveland, OH 44114(216) 622-8200 (phone)(216) 241-0816 (fax)tmichals@calfee.eommmendoza@ealfee.conidruiz@,calfee.com

Attorneys for Appellee,The Cleveland Electric IlluminatingCompany

Attorneys for Appellants

L)h1 o'i i.iJ(C:

^'LII'ReNIG Ct111RI_c)^C_01110

(00825494.DOCx;2 1

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................. ............................................................................ i^

1. EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE ASUBSTANTIAL CONSTITIJTIONAL ISSUE OR AN ISSUE OFPUBLIC OR GREAT GENERAL INTEREST .................................................................. 1

II. ARGUMENT IN SUPPORT OF APPELLEE'S POSTTIONREGARDING APPELLAN'I'S' PROPOSITIONS OF LAW ............................................ 5

A. Appellants' Proposition of Law No. 1 merely restates Ohio law,provides no inatter of public or great general interest, and offers nogrounds for this Court to accept jurisdiction ........................................................... 5

B. Appellants' Proposition of Law No. 2 provides no matter of publicor great general interest and offers no grounds for this Court toaccept jurisdiction . .................................................................................................. 9

C. Appellants' Piroposition of Law No. 3 provides no matter of publicor great general interest and offers no grounds for this Court toaccept jurisdiction . ................................................................................................ 11

III. CONCLUSTON ................................................................................................................. 14

CERTIFICATE OF SERVICE ..................................................................................................... 16

(00825494.DOCX;2 }

TABLE OF AUTHORITIES

Page

Cases

Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824 ...................................................................................................... passim

Corrigan v. IlIum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009 ......................... 5

Dargart v. Ohio Dept. of Transp., 6th App. Dist., No. 06-019, 171 Ohio App.3d439, 2006-Ohio-6179 .............................................................................................................. 11

Dickerson v. The Cleveland Elec. Illum. Co., No. 04-995, 2006 WL 286842 (OhioP.U.C. Feb. 1, 2006) ............................................................................................................... 13

Gayheart v. Dayton Power & Light Co. (1994), 98 Ohio App.3d 220,648 N.E.2d 72 ..................................................................................................................... 7,13

Hiener v. The Cleveland Elec. Co., No. 95-1948, 1996 WL 495092 (11th App.Dist, Aug. 9, 1996) .................................................................................................................. 12

In the Mcztter of Complaint ofPrro Se Comm. Prop, v. The Cleveland Elec. lllum.Co., No. 07-1306-EI CSS, Opinion and Order (PUCO Sept. 10, 2008) ........................ passim

Johnson v. GSMMgnat. Co., No. 04-01684, 2006 WL 2813379 (N.D. OH.Sept. 28, 2006) ................................................ ...................................................................2, 3

Kazmaier Superrnarket, Inc. (1991), 61 Ohio St.3d 147, 572 N.E.2d 646 ..................................... 7

Pacific bsdem. Ins. Co. v. The Illunainating Co., , 8th App. Dist., No. 82074, 2003-Ohio-3954 ......................................................................................................................... 10,13

Pro Se Comni. Prop. v. Illamz. Co., 8th App. Dist., No. 92961, 2010-Ohio-516 ................... passiin

Pro Se Comrn. Prop. v. The Cleveland Elec. Illum. Co., No. 07-1306-EL-CSS,2008 WL 4862484 (Ohio P.U.C. Nov. 5, 2008) .............................................................. passim

Santos v. The Dayton Power and Light Co., No. 03-1965, 2005 WI, 514488 (OhioP.U.C. Mar. 2, 2005) ............................................................................................................... 13

Southgate Dev. Corp. v. Columbia Gas Trans. Corp. (1976), 48 Ohio St.2d 211 ................. 10, 11

State of Ohio cx rel Leonard v. Church, No. 96-6398, 1997 WL 72089 (9th App.Dist. Feb. 21, 1997) ............................................................................................................... 2,3

Statutes

Ohio Revised Code 4903.10 ........................................................................................................... 2

Ohio Revised Code 4903.11 ........................................................................................................... 2

Ohio Revised Code 4905.26 ......................................................................................................... 13

Ohio Revised Code 4928.16(B)(1) .. ............................................................................................. 13

Rules

Ohio R. Evid. 201 ....................................................................................................................... 2, 3

(00825494.DOCx;2 p ii

IN THE SUPREME COURT OF OHIO

PRO SE COMMERCIAL PROPERTIES, ) CASE NO. 2010-0748ET AL., ) Discretionary Appeal

Appellants,

V.

THE CLEVELAND ELECTRICILLUMINATING COMPANY,

Appeal from the Ohio Court of Appeals,Eighth Appellate District, Cuyahoga CountyCase No. CA 92961

Appellee.

1. EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIALCONSTITUTIONAL ISSUE OR AN ISSUE OF PUBLIC OR GRL'AT GENERALINTEREST.

There are two possible legal grounds for jurisdiction to extend over Appellants'

discretionary appeal, and neither applies lrere. Appellants have not alleged that this case presents

a substantial constitutional issue. Appellee, The Cleveland Electric Illuminating Conipany,

("Appellee") agrees that this case prosents no constitutional issues. In addition, this Court should

dccline to accept jurisdiction because there is no rnatter of public or great general interest

presented by this case, despite Appellants' transparent attempt to manufacture such an issue. Far

from being a matter of public or great general interest, this case presents nothing more than

Appellants' personal and misguided attempt to challenge the third tribunal-after the thial court

and the Public Utilities Commission of Ohio ("PUCO")--to consider their claims and eonclude

that the PUCO has exclusive jurisdiction.' Further, this case is not worthy of review because the

1 See generally Pro Se Comrn. Prop. v. Ilh.rrn. Co., 8th App. Dist., No. 92961, 2010-Ohio-516(also referred to as "Appellate Court's Opinion" or "Opinion"); Pro Se Conam. Prop. v. The

Cleveland Elec. Illum. Co., No. 07-1306-EL-CSS, 2008 WL 4862484 (Ohio P.U.C. Nov. 5,

2008) (affiinring prior rulings after considering complainant's application for rehearing) ("Pro

Se Comnz Prop. PUCO IT'); In the Matter of Complaint of Pro Se Comm. Prop, v. TheCleveland F,lec. Illuna. Co., No. 07-1306-EL-CSS, Opinion and Order (PUCO Sept. 10, 2008)

("Pr•o Se Comm. Prop. PUCOI") affd, Pro Se Comna. Prop. PUCO IT. Further, the CoiuC can

{00825494.ooCR;2 } I

ultimate nrling on jurisdiction over Appellants' underlying claims would remain the same even if

all three of Appellants' propositions of law in their Memorandum in Support of Jurisdiction

("Memorandum") had merit.

1'his case has a unique procedural posture that is unlikely to be repeated because

Appellants are challenging decisions from the trial court and Eighth District Appellate Court

("Appellate Court"), which concluded that Appellants' claims should be reviewed by the PUCO,

and Appellants are attempting to make this ehallenge after the PUCO has already reviewed these

claims. After the trial court dismissed their claims, the lead Planitiff/Appellant, Pro Se

Commercial Propeities, and its counsel Co-Appellant, Elfvin & Besser, elected to pursue the

same claims before the PUCO. They had a fi.ill opportunity to litigate their claims before the

PUCO. After an administrative trial, post-trial briefs, and application for rehearing, the PUCO

confirmed that it hadjurisdiction and dismissed the claims against Appellee as ineritless. It

fiirtlier ruled that Appellee's actions complied with all applicable statutory and PUCO

regulatiotis, and Appellee breached no duty of care because it provided reasonable, adequate

services at all relevant times to the Appellants. See note 1, supra, and PUCO rulings therein.

Those PUCO proceedings became final before the Appellants' underlying appeal to the

Appellate Court because Pro Se Commercial Properties a.nd co-appellant Elfvin & Besser,

neither souglit rehearing of the PUCO's Entry on Rehearing under R.C. section 4903.10 nor filed

a tiinely appeal to this Court pursuant to R.C. section 4903.11. See id.; PUCO docket, supra.

Appellants now ask this Court to ignore that their claims have been litigated before the PUCO so

talce judicial notice of the parties' filings and the administrative proceedings bef'ore the PUCO,

which are publically available at <httpa/dis:pue.state.oh.us/CaseRecord.asux?CascNo=07-1306-

Ei, CS5>. See Johnson v. GSM Mgtttt. Co., No. 04-01684, 2006 WL 2813379 (N.D. OH.

Sept. 28, 2006) (courts may take judicial notice of adnlinistrative proceedings); State of Ohio ex

rel Leonard v. Church, No. 96-6398, 1997 WL 72089 (9th App. Dist. Feb. 21, 1997) (courts may

take judicial notice of other legal proceedings); Ohio R. Evid. 201.

{00925494.DOCx;2 ) 2

they can pursue additional vexatious, duplicative and wasteful litigation that undeimines the

finality of administrative rulings, prejudices Appellee and furthers no issue of public or great

general interest.

Appellants' have not asserted any claims for the benefit of the public as a whole. The

issues raised in Appellants' Memorandum are of interest only to theni, not the greater public.

Given these facts, this case does not present any legal principles of importance that can be

determined by this Court's review of the appeal. Appellants' attempt to manufacture a public

issue is unavailing because, at most, this aase presents nothing more than case-specific issues

that the trial court, PUCO, and the Appellate Court have all considered when unanimously ruling

that the PUCO had exclusive jurisdiction over Appellants' claims.2 Denying jurisdiction will

have no affect on the citizenry as a whole because the Appellate Court (and PUCO) followed the

two-part test from this Court's Allstate3 decision when they both determined that the PUCO had

exclusive jurisdiction over Appellants' claims filed against Appellee.

F'urther, Appellants' Memorandum demonstrates, at best, a fundamental misreading of

the Appellate Court's Opinion and at worst a deliberate atteinpt to mischaracterize that opinion

and Ohio law to manufacture a public issue. That Opinion followed Allstate's jurisdictional test

and concluded that the PUCO had exclusive jurisdiction over Appellants' claims. The Appellate

Court stated "[r]ecently in Allstate Ins. Co, v. Cleveland Elec. Illuminating Co., the Ohio

Supreme Court adopted the following two-part test to detennine whether PUCO has exclusive

jurisdiction over an action: First, is administrative expertise required to resolve the issue in

dispute? Second, does the act complained of constitute a practice noimally authorized by a

2 See case law cited in footnote 1.

3 Allstate Ins. Co. v. Cleveland Elec. Illunz. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893

N.E.2d 824.

{00825494.DOCX;2 J 3

utility? If the answer to either question is in the negative, the claim is not within PUCO's

exclusive jurisdiction." Pro Se Comin. Prop., 2010-Ohio-516, at ¶10 (internal quotation marl(s

omitted).

Contrary to Appellants' interpretation, the Appellate Court's Opinion followed both

prongs of the two-pait Allstate test when it unanimously affiimed the trial court's niling that the

P[JCO had exclusive jurisdiction over thcir claims. See id., at ¶¶11-15. To be sure, the Court

stated the Allstate test as the applicable ivle of law. Whetlier the Appellate Court misapplied that

test, as Appellants' erroneously contend, does not change the fact that the right test from Allstate

remains in place. Appellee respectfully requests that jurisdiction be denied because:

• the Appellate Court's wianimous Opinion presents the proper test for deternlining

whether the court or PUCO has exclusive jurisdiction over the claims-this

Court's two-part Allstate test;

• the Appellate Court applied the Allstate test, Pollowed a long-line of precedent,

and detennined that the PUCO, with its expert technicians familiar with tbe issues

and law governing public utilities was best suited to consider Appellants' claims

because they concern Appellee's distribution of electricity and involve practices

nonnally authorized by the conipany;

• the Appellate Court's concise analysis does not give rise to a matter of public or

great general interest, but ralher, demonstrates that it was an obvious, straight-

forward analysis to confirm the PUCO's jurisdiction over Appellants' claims; and

t00825494.DOCX;2 1 4

. the forwn whose jurisdiction Allstate focused on-the PUCO-has already

considered Appellants' claims and detennined-twice--that the PUCO had

jurisdiction over the claims and that such claims were meritless.4

This Court should not accopt Appellants' discretionary appeal because there is nothin to

be fixed. What Appellants really are asking is for this Court to nain state what the law is.

'There frivolous appeal presents no matter of public or great general interest.

H. ARGUMENT IN SUPPORT OF APPELLEE'S POSITION REGARDINGAPPELLANTS' PROPOSITIONS OF LAW

A. Appellants' Proposition of Law No. I merely restates Ohio law, provides nomatter of public or great general interest, and offers no grounds for thisCourt to accept jurisdiction.

In their Memorandum, Appellants espouse the following first proposition of law:

Appellants' Proposition of Law No. I: It is necessary. for a court to examine bothprongs of the Allstate test before reaching a decision that the courts oj'comtnonpleas lackjurisdiction on cc claim against a public utility.

See Appellants' Memorandtun, at p. 5. Appellants' first proposition of law fails to present a

matter of public or great general interest because it inerely restates the piinciples of law from this

Court's Allstate' and Corrigan6 decisions, which the Appellate Court confirmed in unanimously

determining that the PUCO had exclusive jurisdiction over Appellants' clain2s.

The two-part test from Allstczte is clear. Following the Allstate decision, there has been a

unifonn pronouncement of the Allstate test. Each tribunal to consider whether a court or the

PUCO has jurisdiction over a party's claims has set forth the proper two-part test, See Corrigan,

122 Ohio St.3d 265, 2009-Ohio-2524, ai Ji"(i1-12; Pro Se Comin. Prop., 2010-Ohio-516, at 1110;

4 See note 1, supra.

s Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917.

6 Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at 111(8-12.

{o0925494.D0Cx;2 j 5

Pro Se Corntn. Prop. PUCO II, 2008 WL 4862484, at * 1-2; Pro Se Comm. Prop. PUCO I, Case

No. 07-1306-EL-CSS, Opinion and Order (PUCO Sept. 10, 2008). There is no confusion over

the govei-ning test from Allstate and it is utmecessary for this Court to reaffirm that self-evident

test.

The Appellate Court's coucise analysis followed Allstate, maintained the proper

jurisdictional test, and does not create any confusion for future coui-ts who must still analyze

eacli case within the confines of the Allstate test. Appellants nevertheless attempt to

manufacture an issue for this Court's review by alleging erroneously that the Appellate Court's

Opinion will create confusion and that future courts may not understand that the Allstate test has

two prongs. But the reality is that the Appellate Court's unanimous Opinion reaPfirmed Allstate

as the applicable rule of law and concluded,

"[r]ecently inAllstate Ins. Co. v. Cleveland Elec. Illurninating Co., theOhio Suprenie Court adopted the following two-part test to deteiminewhether PUCO has exclusive jurisdiction over an action: First, isadministrative expertise required to resolve the issue in dispute? Second,does the act coinplained of constituts a practice normally auChorized by autility? If the answer to either question is in the negative, the claim is notwithin PUCO's exclusive jurisdiction."

Pro Se Coinm. Prop., 2010-Ohio-516, at 1110 (internal qtiotation marks omitted).

The Court then followed a long-line of precedent when it determined that the PUCO,

with its expert teclniicians familiar with the issues and law governing public utilities was best

suited to consider Appellants' claims. See id. at 111110-15. It determined that PUCO's expertise

was required because Appellants' claims questioned the manner in which Appellee provided

electrical services, whioh focused on the practices and procedures normally authorized by

Appellee. See id. The Appellate Court, in addition, held that Appellants' claims were service-

related and under the PUCO's jurisdiction because they stemmcd from events that were purely

;00825494.oocx;2 } 6

electrical in nature. See id. The claims also clearly concerned responding to power surges,

another "regular practice." See id. at ¶¶I 1-12, 14 (concluding that the PUCO's expertise was

required to analyze the reasonableness of Appellee's response, and Appellant's' complaint

focused on the power surges and Appellee's response regarding the restoration of electrical

power.) It is axiomatic that Appellee, an electric utility, nonnally authorizes practices and

procedures associated with the provision and distribution of electricity and responding to

customer complaints regarding electrical services. Further, it concluded that "the detennination

of issues related to the applicable law and regulations, industry practices and standards, is best

accomplished by the PUCO with its expert staff technicians familiar with the utility commission

provisions ." See id. at ¶ 11, n.9 (citing Gayheart v. Dayton Power & Light Co. (1994), 98 Ohio

App.3d 220, 228, 648 N.E.2d 72; Kazmaier Super•inarlcet, Inc. v. Toledo Edison Co. (1991), 61

Ohio St.3d 147, 151-152, 572 N.E.2d 646).

In addition, the PUCO has already determined, twice, that it liad jurisdiction over the

same claims that Plaintiffs-Appellants' have pursued before the trial court and appellate court.7

The PUCO also determined, after an administrative trial, that their claims were meritless. It is

clear that the PUCO analyzed both prongs of the test and conchided, inter alia:

In this case, the answer to both Allstate questions is yes. TheCommission's administrative expertise is required to resolve the issue ofthe practices of CEI as they relate to its distribution system and theelectrical surges that occurred on CEI's distribution system and thatdistribution system which is at the heart of the cause of the surges.Second, CEI's policies and practices that are associated witli operating andmaintaining its electrical distribution system, diagnosing electricalproblems on that systein, and responding to customer complaints ofelectrieal surges associated with that system are also practices normallyauthorized by the utilitv. Based on our conclusions above, the

' See generally Pro Se Comm. Prop. PUCO 1, Case No. 07-1306-EL-CSS, Opinion and Order,

aff'd, Pro Se Cornrn. Prop. PUCO II, 2008 WL 4862484, at * 1-2.

t00825494.DOC7X;2 1 7

Comniission finds no evidence of negligent actions on the part of CEI in

this case.

Pro Se Comsva. Prop. PUCO I, Case No. 07-1306-EL-CSS, Opinion and Order at p. 8 (emphasis

added), aff'il, Pro Se Comnz. Prop. PUCO 11, 2008 WL 4862484, at *2.

Appellants' disingenuous attempt to nlanufacture an issue for appeal is demonstrated by

their contention that this Court should accept jurisdiction "to send a message that not all actions

by an electric company or its employees are service-related." See Memorandum, at p. 7. But

their Memorandum, a mere two pages earlier, states that this Coi,irt in Allstate determined that

not all actions by a utility company are service-related. See id. at p. 5; Allstate Ins. Co., 119

Ohio St.3d 301, 2008-Ohio-3917, at ¶7.

Nevertheless, Appellants' coinplaints stem from services rendered pursuant to Appellee's

practices and procedures for providing electricity and responding to customer complaints

concerning its electrical distribution system, which are matters within the exclusive jurisdiction

of the PUCO. Their claims stem from Appellee's distribution of electricity, disiliptions in their

electrical service, and alleged communications while responding to their customer service issues.

The PUCO has already ruled that Appellee did nothing wrong, and that "we cannot find that

[the...] purported statements to complainant [-Appellant] to turn the electricity back on after the

first surge were in any way unreasonable." Pro Se Comm. Prop. PUCO TI, 2008 WL 4862484 at

*3 (affirming rulings from Pro Se Comm. Prop. PUCO 1) (intenial quotation marks omitted). To

be sure, complaints about services and complaints about communications regarding services are

still service-related complaints.

The Appellate Court's unanimous Opinion followed the two-part Allstate test and

concluded that Ohio law vests the PUCO with exclusive jurisdiction over Appellants' claims

because they were service-related complaints against a public utility. See Pro Se Comm. Prop.,

{00825494.nocx;2 } 8

2010-Ohio-516, at ¶10. There is nothing unique about that niling; nor does that ruling give rise

to a matter of public or great general interest. Jurisdiction here is lacking, and Appellee

respectfully requests that this Court decline to accept Appellants' discretionary appeal.

B. Appellants' Proposition of Law No. 2 provides no matter of public or greatgeneral interest and offers no grounds for this Court to accept jurisdiction.

In their Memorandum, Appellants espouse the following second proposition of law:

Appellants' Proposition of Law No. 2: In detennining questions of exclusivejurisdiction, where facts may be subject to more than one inteipretation, tlte faceof the complaint alone is insufficiena to sustain disnzissal.

See Appellants' Meinorandum, at p. 8. The Appellate Court has recognized this proposition of

law and already coneluded that its detennination was obvious-Appellants' claims, on their face,

are subject to the PUCO's exclusive jurisdiction. The Appellants' claims are about the provision

of electrical services and responding to power surges on that distribution system, which requires

the PUCO's expertise and concems practices normally authorized by Appellee. Pro Se Comm.

Prop., 2010-Ohio-516, at ¶¶11-13. The Appellate Court detetmined that PUCO's expertise was

required to analyze the reasonableness of Appellee's action; and "[u]nlike the complaint in

Pacific Indem., the elaims in this plaintiffs'[-Appellants'] complaint are not subject to more than

one inteipretation. The language of the complaint focuses on the power surges and the

employee's directive regarding the restoration of power." See icl. at ¶¶12-13 (internal citations

omitte(l).

Further, it is evident that Appellants' claims required the PUCO's administrative

expertise to resoive ftle issue ofthe Appellee's practices relating to its distribution syste:n and

thc alleged electrical surges that occurred on that distribution system. See id at ¶¶11-12. The

PUCO is (and was) the proper forum to analyze Appellee's policies and practices associated with

operating and maintaining its electrical distribution systern, diagnosing electrical problems on

{00825494.DOCX;2 } 9

that system, and responding to customer complaints of electrical surges associated with that

system, which are also practices normally authorized by the Appellce.

The Appellate Court affinned the trial court's decision and concluded that Appellants'

complaint raised sufficient allegations demonstrating that their claims were service-related and

that the PUCO had proper jurisdiction. The court aptly held that Appellants' claims "in the

instant case more closely resemble service-related claims than pure common law tort actions."

See id. at ¶ 15, n. 13 (gathering case law). In doing so, the unanimous Opinion distingiushed and

ruled inapposite Pacific Indem. Ins. Co. v. 1 he Illuminating Co.,B the sole case that Appellants

rely upon in support of this proposition of law. There, unlike here, discovery was eonsidered

necessary because the claims were subject to more than one interpretation and, therefore, were

not clearly within the PUCO's jurisdiction. The electric company was alleged to have jerry-

rigged eleetrical wires to the plaintiff's property witliout the plaintiff's knowledge or consent and

allegedly breached a contract to perform in a workinan-lilce manner. Also, unlike here, the utility

company did not demoristrate why PUCO's expertise was required. See id. ¶22. Here, however,

the Appellate Court determined that it was obvious-Appellants' claims are within PUCO's

exclusive juiisdiction.

In addition, Appellants' second proposition of law fails to recognize fundamental

principles of Ohio law. Trial courts can dismiss a complaint for lack of subject matter

jurisdiction. PLirsuant to this Court's precedent, it is further axiomatic that a court's analysis is

not limited to the face of the complaint when considering a motion to dismiss for lack of subject

matter jurisdiction. See Southgate Dev. Corp. v. Colunibia Gas 1'rans. Corp. (1976), 48 Ohio

St.2d 211, paragraph one of syllabus (concluding that a court's review of a motion to dismiss for

s 8th App. Dist., No. 82074, 2003-Ohio-3954.

{00825494.DOCx;2 1 10

lack of subject matter jurisdiction is not confined to a consideration of the allegations in the

umderlying complaint, but it is proper to consider any material pertinent to that inquiry); Dargart

v. Ohio Dept. of Transp., 6th App. Dist., No. 06-019, 171 Ohio App.3d 439, 2006-Ohio-6179,

1112 (citing Southgate Dev. Corp. for the sanle ptinciple of law). Ohio law and principles of

judicial notice permitted the trial coart (and Appellate Court) to consider any material pertinent

to its inquiry.9

More importantly, neither the Appellate Court's Opinion nor this proposition of law gives

rise to a matter of public or great general interest. Appellee, tlrerefore, respectfltlly requests that

this Court decline to accept Appellants' discretionary appeal.

C. Appellants' Proposition of Law No. 3 provides no matter of public or greatgeneral interest and offers no grounds for this Court to accept jurisdiction.

In their Memoratidum, Appellants espouse the following third proposition of law:

Appellants 'Proposition of Law No. 3: Not all power surges are service-related.

See Appellants' Memorandum, at p. 9. Concluding that the PUCO had proper jurisdiction over

tlreir service-related elaims does not, as Appellants' allege, automatically render the PUCO with

exclusive jurisdiction over every claim that is associated with an electrical surge. Appellants'

proposition of law, even ifit had merit, would change nothing, however, because this case also

concenis Appellee's practices associated with maintaining and diagnosing problems on its

distribution system and responding to customer's service complaints-all issues that the

9 Although the trial court did not cite the authority that it relied upon when it granted TheClevelztrd Electric Illuminati-n_g Company's ("CEI") Motion to Dismiss for Lack of SubjectMatter Jurisdiction, by the time the trial cotirt granted that Motion it had before it forconsideration (1) Plaintiffs'/Appellants' Complaint, (2) CEPs Answer, (3) CEI's Motion toDismiss, (4) Plaintiffs'/Appellants' Opposition, (5) CEI's Reply, (6) Plaintiffs'/Appellant'sMotion for Leave to File a Sur-Reply, (7) CEI's Opposition to that Motion, (8) CEI's Motion forSumtnary Judgtnent, (9) Plaintiffs'/Appellants' Opposition, (10) CEI's Reply Brief, and (11) thesupporting exhibits to each filing, which included Appellee's Tariffs filed with the PUCO and

Appellee's expert's affidavit.

(00825494.noCx;2 1 1 l

Appellate Court and PUCO have determined required the PUCO's expertise to analyze the

reasonableness of such policies, practices and procedures.

The Appellate Cotirt's Opinion also a£firmed the principles from the Allstate decision and

concluded that determining whether the PUCO has jurisdiction reqtiures a ease-by-cases analysis.

See Pro Se Conasn. Prop., 2010-Ohio-516, at ¶¶10, 15. Although not every action against a

utility belongs before the PUCO, it is (and was) the proper forum for this case and these facts.

Here, the Appellate Court properly applied the Allstate test and detemiined that, for this case and

thesc facts, the PUCO had jurisdiction. There is no reason to address that ruling further because

it does not present any matter of public or great general interest.

In a transparent attempt to conjure up a matter of public interest, Appellants are pursuing

an extreme position in their Memorandum-alleging that all power surge claims fail the second

prong of the Allstate test, and, therefore, are never proper before the PUCO because power

surges are not practices regularly autborized by utilities. But that proposition rnischaracterizes

their elaims and has no legal merit. Their claims concern the response to the affects of power

surges, which are practices nomially authorized by Appellee. See id. at ¶¶I 1-12, 14 (concluding

that Appellants' complaint focused on the power surges and Appellee's response regarding the

restoration of elcctrical power, which rendered the PUCO with exclusive jurisdiction.)

More importantly, the PtJCO has been the proper forum to consider power surge claims,

lilce those asserted by the Appellants, for many years. It has considered myriad power-surge-

related cases and evaluated each matter on a case-by-case basis. See, e.g., Hiener v. The

Cleveland Elec. Co., No. 95-1948, 1996 WL 495092 *2 (llth App. Dist. Aug. 9, 1996) (holding

claims for damages by a power surge were service-related and within PUCO's jurisdiction); Pro

Se Co nnz. Prop. PUCO II, 2008 WL 4862484 at *2-3 (accord); Dickerson v. The Cleveland

;00825494.DOCX;2 1 12

Elec. Illuin. Co., No. 04-995, 2006 WL 286842 (Ohio P.U.C. Feb. 1, 2006) (determining that a

claini stemming from an alleged power surge was properly before the PUCO as a service-related

complaint tinder R.C. 4905.26); Pro Se Comm. Prop. PUCO I, Case No. 07-1306-EL-CSS,

Opinion and Order at pp. 6-9 (accord) aff'd, Pro Se Coinm. Prop. PUCOII, supra; Santos v. Tlae

Dayton Power and Light Co., No. 03-1965, 2005 WL 514488 (Ohio P.U.C. Mar. 2, 2005)

(holding that a power surge claiin was a service-related coniplaint under R.C. 4905.26). In

addition, Ohio Rcvised Code section 4928.16(B)(1) specifically permits the PUCO to award

restitution for electric voltage fluctuations. The PUCO is a piroper forum for power surge claims.

The Appellate Court held that the PUCO liad exclusive jurisdiction over Appellants'

claims. See generally Pro Se Comm. Prop., 2010-Ohio-516. It ruled inapposite Gayheart v.

Dayton Power & Light Co.10 and Pacific Indem. Ins. Co. v. The Illuminating Co.," which

Appellants again invoke in support of their third proposition of law. The Appellate Court

distinguished Pacif3c Indemnification on its facts and ruled it inapposite as described supra. See

Pro Se Comm. Prop., 2010-Ohio-516, at ¶13. And contrary to Appellants' mischaracterization

of Gayheart, the Appellate Court noted correctly that thc jurisdictional question in that case was

not raised in a inotion to dismiss, but rather, at the twelftb-hour after the plaintiff presented its

case at trial. The Appellate Court fotmd Gayheart inapplicable because of its unique procedural

posture and the "`crucial question presented in [Gayheart] involved deciding which of two

possible causes of the fire occun•ed- the power surge or faulty wiring-not deciding whether

any `service' rendered by [the electric company] was unreasonable.' Thus, the [Gayheart] court

found the matter appropriate for detennination by the jury. [In this case the Appellate Court

1° 98 Ohio App.3d 220, 648 N.E.2d 72.

" 2003-Ohio-3954.

{00825494.DOCX;2 } 13

determined we] do not have a dispute as to the cause of the damage in the instant case." Id.

(internal citations omitted). Simply put, neither case is applicable, which the Appellate Court

concluded in its unanimous Opinion.

Regardless, even if the Appellate Court erroneously distingttished these two cases, that

does not give rise to a matter of public or great general interest for this Court to consider. There

is no need for this Court to grant jurisdiction to consider an issue that the lower courts and the

PUCO have been addressing for years-whether jurisdiction over power surge claims is proper

before the PUCO or courts. This is not the case to alter that process, and its unique facts do not

give rise to or create a need for a new black-letter rule of law. There is no matter of public or

great general interest presented here.

IIl. CONCLUSION

Appel.lants' Memorandum in Support of Jurisdiction presents no issue of public or great

general interest. This case is not worthy of further consideration because the ultimate ruling on

jurisdiction over Appellants' underlying claims would remain the same even if all three of

Appellants' propositions of law had merit. The trial court, PUCO, and Appellate Court have

each correctly stated and applied the law to unequivocally rule that the PUCO has exclusive

jurisdietion over Appellants' claims. Appellants, themselves, have acknowledged as niueh by

pursuing their claims before ttie PUCO before losing and then initiating a frivolous appeal that

the Appellate Court rightfiilly rejected. Appellec, therefore, respectfully requests that this Court

decline to accept jurisdiction over Appellants' discretionary appeal.

too825494.nocx;2 } 14

Respectfully submitted,

DVVles ^^

^THOMAS I. MICHALS (0040822)tmiehals@calfee.comMATTHEW M. MENDOZA (0068231)mniendoza@calfce.comDAVID A. RUIZ (0074543)druiz@calfee.comCALFEE, HALTER & GRISWOLD LLP800 Supeiior Avenue, Suite 1400Cleveland, Ohio 44 1 1 4-2688(216) 622-8200(216) 622-0816 (facsimile)

Attorneys for Appellee, The Cleveland Electricllluminating Company

{00825494.DOCR;2 1 15

CERTIFICATE OF SERVICE

This is to certify that a duplicate of the Memorandum of Appellee, The Cleveland

Electric Illuminating Company, in Response to Appellants' Memoranduin in Support of

Jnrisdiction was served this 1st day of June, 2010, by first class U.S. mail, postage pre-paid,

upon the following:

Barbara 1,^_ayc BesserBruce ElfvinStuart Torch

Elfvin & Besser4070 Mayfield Rd.

Cleveland, OH 44121

Matthew D. BesserCathleen Bolek, LLC

5885 Landerbrook DriveMonarch Centre #302Cleveland, Ohio 44124

Attorneys for Appellants

^v3ia5 ! . ^ tct^{^

One of the Attonieys for Appellee,The Cleveland Electric Illuminating Company

{00825494.oocx;2 } 16