                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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"Olyphant v. PPL Corp" (2005). 2005 Decisions. Paper 373.
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                                                                NOT PRECEDENTIAL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



                                             3
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.



                                             4
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.

                                              5
       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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