Ohio Domestic Violence Network v. Pub. Util. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Ohio Domestic Violence Network, Appellant, v. Public
Utilities Commission of Ohio et al., Appellees.
[Cite as Ohio Domestic Violence Network v. Pub. Util.
Comm. (1992), Ohio St.3d .]
Public Utilities Commission -- Intervenor appeals from order of
commission -- Intervenor lacks standing, when.
(No. 92-1435 -- Submitted November 10, 1992 -- Decided
December 11, 1992.)
Appeal from the Public Utilities Commission of Ohio, Nos.
90-467-TP-ATA and 90-471-TP-ATA.
On Motion to Dismiss.
On March 20, 1990, intervening appellee, Ohio Bell
Telephone Company ("Ohio Bell"), filed applications with
appellee Public Utilities Commission of Ohio ("commission") to
amend its tariff to provide two new optional services: Caller
ID and Automatic Callback. By entry issued April 11, 1991, the
commission found that Ohio Bell's proposed tariff amendments
may be unjust and unreasonable and set the applications for
hearing pursuant to R.C. 4909.18. The commission also granted
appellant, Ohio Domestic Violence Network ("ODVN"), permission
to intervene.
By its order issued March 26, 1992, the commission denied
the proposed tariff amendments, finding each to be unjust and
unreasonable. The commission further found that if Ohio Bell
still wished to offer the proposed services, it must file
revised applications consistent with the terms of its order.
Ohio Bell and ODVN, among others, filed applications for
rehearing of the March 26, 1992 order. In its entry on
rehearing issued May 21, 1992, the commission modified the
terms under which Caller ID would be acceptable, and found that
Ohio Bell could offer Automatic Callback as originally
proposed, subject to compliance with various non-tariff
conditions. The authority to offer the services remained
contingent upon Ohio Bell's willingness to file revised
applications which met the specific terms set by the
commission, or which contained acceptable alternatives. There
is no indication in the record before us that such revised
applications have been filed with, or approved by, the

commission in this case.
ODVN filed its notice of appeal from the commission's
orders on July 20, 1992. This cause is now before the court
upon the commission's motion to dismiss.

Hahn, Loeser & Parks, Janine L. Migden, Maureen R. Grady
and Randy J. Hart, for appellant.
Lee I. Fisher, Attorney General, James B. Gainer and Ann
E. Henkener, Assistant Attorneys General, for appellee.
Charles S. Rawlings and William H. Hunt, for intervening
appellee, Ohio Bell Telephone Company.

Per Curiam. The commission argues that ODVN lacks
standing to bring this appeal. We agree and, for the reasons
which follow, grant the commission's motion to dismiss.
In Ohio Contract Carriers Assn. v. Pub. Util. Comm.
(1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus,
we held that "[a]ppeal lies only on behalf of a party aggrieved
by the final order appealed from. Appeals are not allowed for
the purpose of settling abstract questions, but only to correct
errors injuriously affecting the appellant." We explained that
a "final order" under former G.C. 544, now R.C. 4903.13, is one
"affecting a substantial right" (see R.C. 2505.02; Hall China
Co. v. Pub. Util. Comm. [1977], 50 Ohio St.2d 206, 4 O.O.3d
390, 364 N.E.2d 852), and characterized the interest necessary
to create a substantial right as a "'present interest'" and an
"'immediate and pecuniary'" interest. Id., 140 Ohio St. at
161-162, 23 O.O. at 369-370, 42 N.E.2d at 759. Accord East
Ohio Gas Co. v. Pub. Util. Comm. (1988), 39 Ohio St.3d 295, 530
N.E.2d 875, wherein we also recognized that an order may be
final as to one party but not to another.
The orders complained of in this proceeding did not
authorize Ohio Bell to implement the services proposed, but
made implementation contingent upon its willingness to accept
the terms and conditions imposed by the commission. This
acceptance was to be manifested by the filing of revised
applications. Because the revised filings have not been made
or approved in this proceeding, Ohio Bell does not have the
authority to provide the proposed services and ODVN's present
and immediate interests have not been affected. Clearly, if we
were to decide the merits of the commission's orders on the
basis of the record before us, we would be rendering the type
of advisory opinion which we found improper in Ohio Contract
Carriers Assn. Accordingly, we conclude that the orders
complained of did not affect ODVN's substantial rights, that
the order is not final and appealable as to ODVN, and that ODVN
lacks standing to bring this appeal.
Appeal dismissed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.