                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2005

Martorano v. PPL Energy Plus LLC
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3751




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Recommended Citation
"Martorano v. PPL Energy Plus LLC" (2005). 2005 Decisions. Paper 970.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/970


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                                                    NOT PRECEDENTIAL

                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            _______________

                                    No. 04-3751
                                 ________________

                   JOSEPH MARTORANO, III, d/b/a ENERCO,
                                     Appellant
                                 v.

                   PP&L ENERGY PLUS, L.L.C.; PP& L, INC.
                   ____________________________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                               (D.C. No. 03-cv-05963)
                     District Judge: Honorable Anita B. Brody
                  _______________________________________

                           Argued June 8, 2005
       Before: FUENTES, VAN ANTWERPEN and BECKER, Circuit Judges


                              (Filed: June 23, 2005)
                           _______________________

FRANK N. DiMEO, Jr. (Argued)
Rosenn, Schafer & DiMeo, P.C.
121 S. Broad Street, Suite 800
Philadelphia, PA 19107
       Attorney for Appellant

DAVID L. MEYER
JAMES ATWOOD, Esq. (Argued)
DEREK LUDWIN
Covington & Burling
1201 Pennsylvania Avenue, NW
Washington, DC 20004
JOHN G. HARKINS, JR.
STEVEN A. REED
Harkins Cunningham, LLP
2800 One Commerce Square
2005 Market Street
Philadelphia, PA 19103-1742
      Attorneys for Appellees
                                   ________________

                                    BENCH OPINION
                                   _________________

BECKER, Circuit Judge.

       Judge Becker: The panel has conferred, and I will deliver a bench opinion which

will constitute the opinion and judgment of the Court.

       The order of the District Court will be affirmed. We agree with the District Court

that Martorano and Enerco lack antitrust standing. Enerco is not a competitor or

customer of PP&L. We held in Barton & Pittinos, Inc. v. SmithKline Beecham Corp.,

118 F.3d 178, 184 (3d Cir. 1997), that advertisers and brokers of a good or service are not

competitors of companies that actually supplied the good or service. That is the case

here. PP&L actually supplied the electricity. Enerco is merely a broker.

       If this appeal were not controlled by Barton & Pittinos, it would be controlled by

our recent opinion in Utilimax.com, Inc. V. PPL Energy Plus, LLC, 378 F.3d 303 (3d Cir.

2004), which dealt with the very same “window” as Mr.DiMeo described it, that we are

dealing with here in terms of the history of the electric power sale market in

Pennsylvania. We treated wholesale and retail markets in Utilimax, wholesale and retail



                                             2
markets for electricity capacity in Pennsylvania and New Jersey, as distinct markets, and

held that the plaintiff in LSE was not a competitor of PP&L’s wholesale business.

       Mr. Martorano and Enerco are not even LESs. They are two more steps removed

from PP&L’s wholesale electricity business, since Enerco is hired by retail customers

such as the University of Pennsylvania and others to find an LSE. So Enerco is surely not

a competitor either. And even if PP&L does have a brokerage and consulting arm and we

accept Mr. DiMeo’s representation that it does compete with Enerco, the relevant inquiry

is whether they are competitors in the market which was restrained, here the market for

whole electricity. We find the Carpet Group case which Mr. DiMeo relies upon clearly

distinguishable because there everybody involved was trying to sell carpet. See Carpet

Group Intern v. Oriental Rug Importers Ass’c., 227 F.3d 62 (3d Cir. 2000). They were

direct sellers. Martorano and Enerco are not. Were we to go further, we would note our

agreement with Judge Brody that Martorano’s injury is too indirect for antitrust standing.

And Utilimax, if we went beyond standing, would likewise require us to hold that the

Filed Rate Doctrine would bar the suit.

       At all events, for the reasons stated, the order of the District Court granting the

motion to dismiss will be affirmed. This constitutes the opinion and judgment of the

Court. I ask Judge Fuentes or Judge Van Antwerpen as to whether you have any

additions or corrections?

       Judge Fuentes: I have no additions, correction, and I concur in the decision.



                                              3
       Judge Van Antwerpen: I would cite LePage’s v. 3M, 324 F.3d 141 (3d Cir.

2003). There are not necessary allegation of a relevant antitrust market, sustainable

market power and exclusionary predatory conduct, and the Sherman Act Section 2 claim.

With that minor addition, I join wholeheartedly.

       Judge Becker: Well, it is not a minor addition. It would be an additional

substantive ground.

       Judge Van Antwerpen: Yeah, Yeah.

       Judge Becker: but I would agree with that as well.

       In due course the Clerk will arrange to have this bench opinion transcribed as a not

precedential opinion of this Court and posted on our website in accordance with our

Court’s practice and indeed as required by Congress by the E-Government Act.

       Judge Fuentes: I join in Judge Van Antwerpen’s addition to the decision.

       Judge Van Antwerpen: So we’re unanimous.

       Judge Becker: Okay, thank you very much. That concludes this proceeding.




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