Opinion
No. 91-1774
Submitted January 21, 1992, —
Decided March 20, 1992.
APPEAL from the Public Utilities Commission of Ohio, No. 91-410-EL-AIR.
ON MOTIONS TO DISMISS.On October 23, 1984, appellee Public Utilities Commission ("the commission") initiated PUCO No. 84-1187-EL-UNC, In re Restatement of the Accounts and Records of Cincinnati Gas Elec. Co., Dayton Power Light Co., and Columbus Southern Ohio Elec. Co., to determine what portion of the Zimmer nuclear power plant should be excluded from plant assets should its owners successfully convert the plant to a coal-fired facility. The commission initiated the above proceeding pursuant to R.C. 4905.13, which grants the commission the authority to establish a system of accounts for public utilities and to prescribe the manner in which such accounts shall be kept.
The owners of the Zimmer power plant are Cincinnati Gas Electric Company, Dayton Power Light Company, and Columbus Southern Power Company (formerly Columbus Southern Ohio Electric Company).
The parties to that proceeding, except the city of Cincinnati ("the city") and Board of Commissioners of Hamilton County, subsequently entered into a stipulation resolving the case. Specifically, the stipulation provides that (1) $861,000,000 in rate base investment for Zimmer (over half of the total as of January 31, 1984), plus any allowance for funds used during construction accrued on such sum since January 31, 1984, would be disallowed in future rate cases; (2) none of the parties would challenge the investment remaining as of January 31, 1984 as being the result of mismanagement or as not being used and useful in a Zimmer facility converted to coal generation; and (3) the ceiling amount which the owners can request to be included in a future rate proceeding would be $3.6 billion. The city did not appeal the commission's order of November 26, 1985, which approved the stipulation.
Zimmer was converted to a coal-fired generating unit and, in the spring of 1991, the owner utilities filed applications for rate increases, in part to recover the costs to construct the plant. Intervening appellee Cincinnati Gas Electric Company ("CG E") filed its application, PUCO No. 91-410-EL-AIR, in April 1991. On May 8, 1991, the city filed a motion in CG E's pending rate case requesting that the commission clarify whether its order of November 26, 1985 in PUCO No. 84-1187-EL-UNC, 71 P.U.R.4th 140, was merely an accounting order or had a ratemaking effect. On July 18, 1991, the commission issued an order, finding that the stipulation was conclusive for ratemaking purposes. The city timely filed an application for rehearing of the commission's July 18, 1991 order, which the commission denied by entry issued August 15, 1991. The city then filed its notice of appeal from the commission's order with this court on September 3, 1991.
This case is now before us on the motions of the commission and CG E to dismiss.
Fay D. Dupuis, City Solicitor, and Richard Ganulin, for appellant city of Cincinnati.
Lee I. Fisher, Attorney General, James B. Gainer, Duane W. Luckey and Jeffrey D. Van Niel, for appellee Public Utilities Commission of Ohio.
James J. Mayer and Michael A. Gribler; Squire, Sanders Dempsey, Alan P. Buchmann, Arthur E. Korkosz and Debra J. Horn, for intervening appellee Cincinnati Gas Electric Company.
The narrow issue presented by appellees' motions to dismiss is whether the commission's July 18, 1991 order, as affirmed by its August 15, 1991 entry on rehearing, is final and appealable. We hold that it is not.
R.C. 4903.13 provides in part:
"A final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable."
R.C. 2505.02 defines a "final order" as:
"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, [or] an order that affects a substantial right made in a special proceeding * * *." (Emphasis added.)
This court has held that proceedings before the commission are special proceedings. Hall China Co. v. Pub. Util. Comm. (1977), 50 Ohio St.2d 206, 4 O.O.3d 390, 364 N.E.2d 852, citing Cleveland, Columbus Cincinnati Highway, Inc. v. Pub. Util. Comm. (1943), 141 Ohio St. 634, 26 O.O. 197, 49 N.E.2d 759. Accordingly, disposition of the issue presented requires a determination of whether the commission's July 18, 1991 order affected a substantial right of the city. The city claims that the commission's order affected its right to challenge the reasonable original cost of Zimmer in CG E's pending rate case. R.C. 4909.15(A)(1) and 4909.05.
In those cases in which we have found that a substantial right was affected by a commission order, there has been a showing of concomitant prejudice to the party seeking review in this court. Cleveland, Columbus Cincinnati Highway, Inc. v. Pub. Util. Comm., supra (the commission ordered appellant to expand its motor carrier operations to provide additional service within sixty days or the application of its competitor to provide such service would be granted); Cincinnati v. Pub. Util. Comm. (1940), 137 Ohio St. 437, 19 O.O. 143, 30 N.E.2d 797, as distinguished in Cincinnati Gas Elec. Co. v. Pub. Util. Comm. (1946), 146 Ohio St. 228, 32 O.O. 206, 65 N.E.2d 68 (the commission issued a preliminary order in a complaint and appeal proceeding, invalidating a municipal ordinance rate and terminating the proceeding).
Conversely, in cases where no such prejudice was demonstrated, we have refused to find that the commission's determination affected a substantial right. Hall China Co., supra (whether a substantial right was affected by the order appealed from was contingent upon the commission's subsequent reconsideration of that order, during the pendency of which appellant was protected from loss by an undertaking filed by the utility); Cincinnati Gas Elec. Co. v. Pub. Util. Comm., supra (the commission's refusal to issue a preliminary order in a proceeding did not affect a substantial right of appellant when such issue was to be resolved in the underlying case pending before the commission).
In Ashtabula v. Pub. Util. Comm. (1942), 139 Ohio St. 213, 22 O.O. 211, 39 N.E.2d 144, we held that the commission's refusal to dismiss a proceeding on jurisdictional grounds did not affect a substantial right of the appellant, because the city could appeal such issue to the court after the commission had issued its final order on the merits. The court reasoned that an appeal only on the jurisdictional issue would result in a "split appeal," which would serve only to prolong and confuse litigation. Accord Cleveland v. Pub. Util. Comm. (1940), 136 Ohio St. 410, 16 O.O. 574, 26 N.E.2d 213. This court has since repeated its disfavor of piecemeal appeals arising from commission proceedings in Toledo Edison Co. v. Pub. Util. Comm. (1983), 5 Ohio St.3d 95, 5 OBR 175, 449 N.E.2d 428, and Senior Citizens Coalition v. Pub. Util. Comm. (1988), 40 Ohio St.3d 329, 533 N.E.2d 353.
In the case before us, we note that the underlying rate proceeding from which the instant appeal is taken is still pending before the commission, that the July 18, 1991 order of the commission affected only a portion of a single issue in that case (the valuation of CG E's rate base), and that denying the motions to dismiss would result in the piecemeal appeal of that issue and the entire rate case, contrary to our precedent. Moreover, while the commission's order may have initially prevented the city from litigating this particular rate base issue before the commission, it did not prejudice the city, considering that this issue is preserved for review by this court when, or if, the final order in the underlying rate order is appealed. Ashtabula, supra. Accordingly, we find that a substantial right of the city has not been affected by the commission's order and that the order is not final and appealable pursuant to R.C. 2505.02 and 4903.13. Appellees' motions to dismiss are granted.
This assumes that the commission does not modify its determination in considering the city's objections to the staff report of investigation, R.C. 4909.19, or upon rehearing after the order of the merits has been issued. R.C. 4903.10. This assumption underscores the premature nature of this appeal and the lack of prejudice resulting from the commission's July 18, 1991 order.
Motions to dismiss granted.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.