Filed: Oct. 20, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-20-2005 Olyphant v. PPL Corp Precedential or Non-Precedential: Non-Precedential Docket No. 04-3283 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Olyphant v. PPL Corp" (2005). 2005 Decisions. Paper 373. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/373 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-20-2005 Olyphant v. PPL Corp Precedential or Non-Precedential: Non-Precedential Docket No. 04-3283 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Olyphant v. PPL Corp" (2005). 2005 Decisions. Paper 373. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/373 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-20-2005
Olyphant v. PPL Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3283
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Olyphant v. PPL Corp" (2005). 2005 Decisions. Paper 373.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/373
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-3283 and 04-4295 (consolidated)
BOROUGH OF OLYPHANT,
Appellant
v.
PPL CORPORATION; PPL ELECTRIC UTILITIES CORPORATION; PPL
GENERATION, LLC
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No.: 03-cv-4023)
District Judge: The Honorable William Yohn, Jr.
Submitted pursuant to LAR 34.1(a)
on September 27, 2005.
Before: RENDELL, FUENTES,
and GARTH, Circuit Judges
(Filed: October 20, 2005)
____________________
OPINION OF THE COURT
_____________________
Fuentes, Circuit Judge.
Plaintiff Borough of Olyphant, Pennsylvania (“Olyphant”) appeals the District
Court’s orders: 1) denying a joint motion by Olyphant in its case Borough of Olyphant v.
PP&L, et al. (Docket No. 03-4023) and fourteen plaintiffs, including Olyphant, in another
case, Borough of Lansdale, et al. v. PP&L et al. (Docket No. 02-8012) (the “Lansdale
action”) to consolidate the two cases; 2) granting summary judgment to PPL dismissing
Olyphant’s claims; and 3) denying Olyphant’s motion for summary judgment on PPL
Corporation’s (“PPL”) counterclaims, and granting summary judgment in favor of PPL
on one of PPL’s counterclaims against Olyphant. Because Olyphant has not
demonstrated that the District Court abused its discretion in denying the motion to
consolidate, and substantially for the reasons stated in the District Court’s opinions dated
May 14, 2004, and August 19, 2004, we will affirm.
I.
Because we write only for the parties, we recite only the essential facts. Olyphant
is a municipal corporation organized and existing under Pennsylvania law. PPL is the
parent holding company of companies engaged in, among other things, electricity
generation, the marketing and trading of wholesale electricity, and electric supply to retail
customers. PPL sells power at wholesale to Olyphant, but also competes with Olyphant
for retail customers.
On May 8, 1996, the Federal Energy Regulatory Commission (the “FERC”), which
regulates the sale of wholesale power, issued Order No. 888, which required the
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unbundling of the wholesale power market and permitted previously monopolistic
wholesalers to recover from customers“stranded costs” which they would lose as a result
of deregulation. Olyphant and several other Pennsylvania boroughs filed a proceeding
before the FERC to determine their liability for stranded costs. On January 29, 1998, PPL
and the boroughs reached a settlement (the “Power Supply Agreement”), which resolved
that PPL would not seek stranded costs from the Boroughs.
On April 1, 1997, pursuant to Pennsylvania’s Electricity Generation Customer
Choice and Competition Act (the “Competition Act”), 66 Pa.Cons.Stat. §§ 2801 et seq.,
which effectively deregulates the business of electricity generation in Pennsylvania, PPL
submitted a restructuring plan to the Pennsylvania Public Utility Commission (the
“PUC”), which included proposed rates and stranded costs that were recoverable under
the Competition Act. After significant debate in response to the proposal, during which
many boroughs filed suit in state or federal court, the PUC approved a Joint Petition for
Full Settlement of PP&L, Inc.’s Restructing Plan and Related Court Proceedings (“Joint
Petition”) on August 27, 1998.
On December 5, 2001, Olyphant filed suit in the Middle District of Pennsylvania
asserting breach of contract and violations of Sections 1 and 2 of the Sherman Act, 15
U.S.C. §§ 1 and 2, and of Section 2 of the Clayton Act, 15 U.S.C. § 13. PPL asserted three
counterclaims, and moved for summary judgment. The case was subsequently transferred
to the Eastern District of Pennsylvania with the motions for summary judgment still
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pending. On November 10, 2003, the District Court denied the motion made by Olyphant
and the boroughs that were parties in the Lansdale action, including Olyphant, for
consolidation of the cases. On May 14, 2004, the District Court issued an opinion and
order granting summary judgment dismissing Olyphant’s breach of contract claim and its
claim under Section 1 of the Sherman Act and Section 2 of the Clayton Act, and granting
summary judgment dismissing Olyphant’s claim under Section 2 of the Sherman Act
without prejudice to Olyphant’s ability to pursue the claim in the Lansdale action.
Borough of Olyphant v. PP&L, Inc., No. 03-4023, 2004 WL 1091037 (E.D. Pa. May 14,
2004). The District Court denied Olyphant’s motions for summary judgment on PPL’s
counterclaims.
Id. On August 19, 2004, the District Court granted PPL’s motion for
summary judgment as to PPL’s counterclaim that Olyphant had breached the dispute
resolution clause of the power supply agreement between the parties, but denied PPL’s
motion for summary judgment on its counterclaims for tortious interference with
contractual relations. Borough of Olyphant v. PP&L, Inc., No. 03-4023,
2004 WL
1858045 (E.D. Pa. Aug. 19, 2004).
II.
This Court reviews the District Court’s ruling on the motion to consolidate for
abuse of discretion. See, e.g., Young v. City of Augusta, 59 F.3d 1160, 1169 (11 th Cir.
1995). An abuse of discretion exists “only when the judicial action is arbitrary, fanciful,
or unreasonable, or when improper standards, criteria, or procedures are used.” Evans v.
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Buchanan, 555 F.2d 373, 378 (3d Cir. 1977). The moving party bears the burden of proof
on a motion to consolidate. Klimarski v. Parexel Intern, No. CIV. A. 05-298,
2005 WL
857350, at *2 (E.D. Pa. Apr. 4, 2005); Farahmand v. Rumsfeld, No. CIV. A. 02-1236,
2002 WL 31630709, at *1 (E.D. Pa. Nov. 20, 2002).
The District Court’s rulings on the motions for summary judgment are subject to
plenary review. See Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). We apply the
same test employed by a district court under Federal Rule of Civil Procedure 56(c). See
Kelley v. TYK Refractories Co.,
860 F.2d 1188, 1192 (3d Cir. 1988).
III.
Olyphant argues that it was an abuse of discretion for the district court to deny the
motion to consolidate because it precluded Olyphant from benefitting from additional
discovery in the Lansdale action. A district court has broad discretion when determining
whether consolidation is appropriate. See Farahmand, 2002 WL 31630709, at *1. At the
time the district court denied the motion to consolidate, fact discovery in this case had
been closed for nearly a year, while fact discovery in the Lansdale action had just begun
and would not close until July 2004. It is within a district court’s broad discretion to deny
a motion to consolidate if it would cause delay in one of the cases, or if one of the cases is
further into discovery than the other case.
Id. (citing 9 C. Wright & A. Miller, Federal
Practice and Procedure, § 2383 (Civil 2d. 2004)). Therefore, the district court did not
abuse its discretion in denying the motion to consolidate.
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Olyphant also argues that the district court erred in granting summary judgment
dismissing its breach of contract claim and its claims under Sections 1 and 2 of the
Sherman Act and Section 2 of the Clayton Act, denying its motion for summary judgment
with respect to PPL’s counterclaims, and granting summary judgment in favor of PPL
with respect to PPL’s counterclaim for breach of the dispute resolution clause. Olyphant
argues that the district court failed to recognize material issues of fact with respect to its
claims, that the district court did not consider the evidence it submitted in opposition to
Appellees’ motion for summary judgment on one of their counterclaims, and that the
district court erred in denying Olyphant’s motion to modify the scheduling order to extend
the period in which dispositive motions may be filed. We have carefully considered
Olyphants’s arguments on this appeal and find that they lack merit. For the reasons stated
in the District Court’s well-reasoned and thorough opinion, we find that summary
judgment was properly granted. We therefore affirm.
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