Kroger, manufacturers go to top court for DP&L refund

The nation’s largest grocery chain and a group of Ohio manufacturers want a refund from Dayton Power and Light — and they’re going to the Ohio Supreme Court to get it.

The Ohio Consumers’ Counsel (OCC), Kroger and the Ohio Manufacturers’ Association are asking the state’s top court to reconsider a recent ruling that said DP&L customers aren’t entitled to what might be seen as a refund.

The three organizations jointly filed a motion Monday asking the Ohio Supreme Court to reconsider its Oct. 4 ruling against an appeal for Dayton-area electric customers, the consumers’ counsel office said Tuesday.

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A four-member court majority ruled in that case against what the plaintiffs considered a refund or remedy for more than 500,000 DP&L customers.

The appeal to the Supreme Court sought refunded charges for what the three parties argued were unlawful original charges.

Asked if such a request to revisit a ruling was unusual, J.P. Blackwood, an OCC spokesman, said: “The motion was filed in response to the court’s decision to not hear the customer groups’ appeal to protect Dayton-area consumers from higher electric rates and to bring to the court’s attention ‎past precedent for allowing such appeals.”

Plaintiffs wanted relief because, they argued, DP&L kept $294 million that it already collected, even though the Supreme Court had earlier determined certain customer charges to be unlawful.

The legal case stretches back to June 2016, when the Ohio Supreme Court overturned a Public Utilities Commission of Ohio (PUCO) decision tied to DP&L, a decision that had allowed DP&L to charge customers extra so that DP&L could remain a “stable” operating entity.

About a month after that first Supreme Court ruling, DP&L asked the PUCO to withdraw its application for the plan that included those charges.

In a February 2017 appeal to the Ohio Supreme Court, the OCC said PUCO violated state law when it allowed DP&L to withdraw the application.

It was in response to that most recent appeal that the Supreme Court majority ruled that it’s not the court’s role to set electric utility rates.

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“The effect of the court’s opinion is that DP&L and the Public Utilities Commission of Ohio … will avoid any consequence for disregarding an order of this court — and customers will be denied relief,” the three plaintiffs said Tuesday.

“The opinion also leaves DP&L’s customers harmed but without recourse after having been subjected to a transition charge that this court deemed to be unlawful,” they added. “As the concurring opinion notes, the effect of the court’s ruling is unfair and results in a windfall to DP&L.”

A DP&L spokeswoman said in an email with the utility is comfortable with the court’s original ruling.

A message seeking comment was sent to a Kroger representative.

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