Opinion
Civil Action No. 03-4023.
August 19, 2004
MEMORANDUM
The Borough of Olyphant, Pennsylvania ("the Borough") brings this action against PPL, Inc., PPL Corp., PPL Electric Utilities Corp., and PPL Generation, L.L.C. (collectively, "PPL") alleging various antitrust violations, Compl. ¶¶ 12-18, 22, and asserting a claim for breach of contract and/or violation of final orders of the Federal Energy Regulatory Commission ("FERC"). Compl. ¶¶ 19-22. Defendants assert counterclaims for tortious interference with existing and prospective contractual relations, Counterclaims ¶¶ 8-11, 18-29, and breach of contract. Counterclaims ¶¶ 12-17, 30-35. Currently pending before the court is PPL's motion for summary judgment on its counterclaims. For the reasons set forth below, I will deny PPL's motion for summary judgment on its counterclaims for tortious interference, but I will grant PPL's motion for summary judgment as to liability on its counterclaim for breach of contract.
BACKGROUND
The facts of this case have been set forth at length in the court's order granting defendants' motion for summary judgment on plaintiff's claims, which was filed on May 14, 2004. Only those undisputed facts pertinent to the resolution of this motion for summary judgment on defendants' counterclaims will be reiterated here.
The Borough of Olyphant is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania. PPL Statement of Facts I ¶ 1. PPL Corporation is the parent holding company of PPL Electric Utilities Corporation and PPL Generation, L.L.C., which means these two entities are wholly owned subsidiaries of PPL Corporation. Id. Prior to a corporate realignment completed in 2000, PPL Electric Utilities Corporation was named PPL, Inc. Id. at ¶ 2. PPL Electric Utilities Corporation is engaged in electricity generation and markets and trades wholesale electricity, capacity, and other related products. Id. PPL Electric Utilities Corporation is also a regulated public utility engaged in electric delivery service and electric supply to retail customers in its service territory in Pennsylvania. Id.
The parties' statement of facts relating to defendants' second motion for summary judgment on plaintiff's claims will be referenced with a "I" and the parties' statement of facts relating to defendants' motion for summary judgment on its counterclaims will be referenced with a "II." All exhibits referenced were submitted in connection with defendants' second motion for summary judgment on plaintiff's claims.
The Borough presently purchases 12 kV power at wholesale from PPL and distributes and resells that power at retail to most residents within its borders. Borough Statement of Facts I ¶ 3. Located almost entirely within the borders of the Borough, however, is the Mid-Valley Industrial Park ("the Park"). PPL Statement of Facts I ¶ 3. PPL serves power at retail directly to approximately 60 industrial customers in the Park. Id. at ¶ 4. The largest customer in terms of annual power consumption is WEA Manufacturing, Inc. ("WEA"). Id. All of the Park customers take power at 12 kilovolts (kV) or less, except WEA, which takes power at 69 kV. Id. Two Park customers have exercised their right to take electricity from alternate suppliers. Id. at ¶ 9.
Plaintiff and PPL entered into a Power Supply Agreement dated December 8, 1998 and filed it with the Federal Energy Regulatory Commission ("FERC"). PPL Exh. O. The power supply agreement was entered into in connection with a settlement agreement dated January 29, 1998, pursuant to which Olyphant and 14 other Pennsylvania boroughs settled longstanding litigation with PPL that had been pending before FERC. Id. The power supply agreement expressly provides:
During the term of this Agreement, PPL shall supply to Olyphant and Olyphant shall purchase from PPL all of Olyphant's capacity and energy requirements for service to its customers in its service territory ( provided that if Olyphant seeks to serve customers beyond its service territory, nothing herein shall preclude Olyphant from obtaining a power supply from suppliers other than PPL for such service). . . .Id. at 2. The agreement also includes a dispute resolution provision, which reads:
In the event of a dispute between the Parties arising under this Agreement, the Parties will work together in good faith to resolve the dispute. If the Parties are unable to resolve such dispute between themselves within five days after written notification by one Party to the other of the existence of such dispute, they shall immediately refer such matter to their internal upper management for resolution. If the management of the Parties is unable to resolve the dispute within ten days after the matter is brought to that level for review[,] either Party may bring a claim or suit in accordance with applicable law.Id. at 8.
On December 16, 1997, the Borough Council adopted Resolution No. 16, declaring that "the Borough of Olyphant does hereby exercise its right pursuant to the [Electricity Generation Customer Choice and Competition] Act, 66 Pa. C.S.A. Section 2805(b)(l)(i), to prohibit electrical generation suppliers from serving end-use customers within the Borough Limits of the Borough of Olyphant; . . ." PPL. Exh. T. In that resolution, the Council authorized and directed the Borough Manager "to advise [PUC] and all appropriate electrical generation suppliers of the foregoing." Id.
On March 15, 2001, C.J. Mustacchio, the Borough's Solicitor, sent a letter to WEA ("the Mustacchio letter"), which included as an attachment a March 14, 2001 letter from the Borough's counsel, Charles F. Wheatley, Jr., to the Borough Manager of Olyphant ("the Wheatley letter"). PPL Exh. X. The Mustacchio letter described the enclosed Wheatley letter as providing an "explanation as to several points of discussion identified at our March 1, 2001 meeting," including the Borough's reasons for believing that it had the "[e]xclusive right . . . to serve electric customers within Borough limits." Id. The Wheatley letter was a response to a request by the Borough that counsel provide a legal analysis "as to whether stranded costs (competitive transition charges) ("CTC") could be assessed by [PPL] against either the Borough of Olyphant or its customers in the [Industrial Park] upon the Borough taking over the provision of electric power service to industries located within the Park." Id. The Mustacchio letter also enclosed a copy of Resolution No. 16, and a copy of an April 12, 2000 letter from the Director of the Pennsylvania Public Utility Commission ("the PUC") to the Borough, in which the Director wrote, "Certainly, nothing in the Competition Act or regulations limits the ability of the borough to serve the Industrial Park." Borough Exh. 13.
On or about April 25, 2001, the Borough Manager, Norbert Kosciuk, sent PPL a letter regarding PPL's supply of power within Olyphant's borders. PPL Exh. Z. The letter stated, inter alia:
This is to advise you that the Borough of Olyphant is undertaking steps to provide electric power from its municipal electric system to users in the Mid-Valley Industrial Park located within the borough. This action has been authorized by the Pennsylvania Legislature, § 2805(b)(1)(i) of the [Competition Act], which authorizes a borough which is engaged in distributing electricity to end-use customers within a borough to prohibit electric generation suppliers from serving such customers within its borough limits. . . . The Borough has received confirmation from the Executive Director of the Pennsylvania Public Utilities Commission that it has exclusive rights to serve [PPL's] customers in the Borough. . . . The Borough would like to have negotiations with [PPL] as soon as possible to coordinate a cooperative transition in placing our poles and transformers relating to the Borough providing future electric service to the Mid-Valley Industrial Park. . . . The Borough now has facilities in place which can provide service to most of the customers in the Park, and contemplates arrangements, which it would like to discuss with PPL, for obtaining all of its power service from PPL at 69 kV.Id. Around the same time, late April 2001, the Borough's Mayor distributed a form letter to businesses in the Mid-Valley Industrial Park. PPL Exh. Y. The form-letter reiterated much of the letter to PPL (including the first two statements quoted above), but added the following relevant statements:
The Borough now has facilities in place which can provide your electric service requirements, and it now desires to provide all of your electric power requirements located within the Borough of Olyphant. We believe that the service and rates for electric power by the Borough to your company will be reliable and reasonable. In order to provide a rate for you, we request that you provide us with a copy of your monthy electric power bills for the past year, as well as any information about any projected increases or decreases in your usage for the next two years. . . . We are looking forward to providing your electricity service for the future.Id.
In early May 2001, John F. Sipics, PPL's Manager of Rates and Tariffs, was asked by F.A. Long, the Executive Vice President and Chief Operating Officer of PPL, to respond to the Borough's April 25, 2001 letter (PPL Exh. Z). PPL Exh. AA. Sipics' response stated, inter alia:
I am in receipt of your letter to Mr. Long dated April 25, 2001, regarding the furnishing of electric service by [PPL] to PPL customers located in the [Industrial Park]. Please be advised that PPL has no intention of relinquishing its right and obligation to provide electric service to customers within the Industrial Park based on the unilateral action of the Borough of Olyphant.Id. Sipics' letter went on to reject each of the positions taken by Kosciuk. Id. Sipics' letter did not offer to discuss or negotiate any of the issues raised by Kosciuk's letter. Id. However, a meeting did take place between representatives of the Borough and PPL on June 8, 2001. PPL Statement of Facts II ¶ 17. Donald O'Boyle, the Borough Engineer, Kosciuk, Mustacchio and Wheatley attended on behalf of Olyphant. Borough Statement of Facts II ¶ 10. Vincent E. Bartkus, PPL Location Field Coordinator, Anthony C. DeCusatis, PPL counsel, Oliver G. Kaspar, PPL Manager of Pricing and Contract Administration, Paul E. Russell, PPL Associate General Counsel, and David E. Schleicher, PPL Manager of Engineering and Design, attended on behalf of PPL. PPL Statement of Facts II ¶ 17. Exactly what was discussed at this meeting is at issue here. There was no further communication between PPL officials and the Borough until PPL received the Borough's complaint in the instant case, which was filed on December 5, 2001. Id. at ¶ 19.
In the Borough's Statement of Facts II, the Borough mistakenly wrote that the meeting occurred on June 28, instead of June 8. This is the only place in all of the evidence that June 28 is referenced.
STANDARD OF REVIEW
Either party to a lawsuit may file a motion for summary judgment, and the court will grant it "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Additionally, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990).
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex v. Catrett, 477 U.S. 317, 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of his claim. Celotex, 477 U.S. at 322-23. The non-movant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
DISCUSSION
I. Tortious Interference with Contractual RelationsPennsylvania courts have adopted § 766 of the RESTATEMENT (SECOND) OF TORTS, which sets out the elements of a claim for tortious interference with existing contractual relations. Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 393 A.2d 1175, 1181-83 (Pa. 1978). This section of the RESTATEMENT reads:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person's failure to perform the contract.
RESTATEMENT (SECOND) TORTS § 766 (1979). Hence, in order for PPL to establish that the Borough interfered with PPL's contracts with the Park customers, it must prove that: (1) the Borough intended to harm PPL's contractual relations with the Park customers; (2) the Borough acted improperly, i.e. was not privileged to act the way it acted; (3) the Borough induced or otherwise caused the Park customers to not perform the contracts; and (4) PPL suffered pecuniary loss resulting from the Park customers' failure to perform the contract. Because there are genuine issues of material fact on at least one of these elements, I will deny PPL's motion for summary judgment.
First, the parties do not dispute that the Borough intended to harm PPL's contractual relations with its Park customers. The Borough sought to lure PPL's Park customers away from PPL, which would undeniably "harm" PPL's contractual relations with its Park customers. The Borough argues, however, that it was privileged to act in such a manner as it was trying to legitimately compete with PPL. Borough Br. 7-8. The Borough directs the court to § 768 of the RESTATEMENT, which "has been recognized by Pennsylvania courts." Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 530 (3d Cir. 1998) (citing Gilbert v. Otterson, 379 Pa.Super. 481, 550 A.2d 550, 554 (1988) and Franklin Music Co. v. American Broadcasting Co., 616 F.2d 528, 543-44 (3d Cir. 1980)). That section provides:
§ 768. Competition as Proper or Improper Interference.
(1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other's relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.
(2) The fact that one is a competitor of another for the business of a third person does not prevent his causing a breach of an existing contract with the other from being an improper interference if the contract is not terminable at will.
RESTATEMENT (SECOND) TORTS § 768. PPL responds by arguing that the Borough seeks "exclusive rights" and not competition. Although there is evidence supporting PPL's contention, there is also evidence that the Borough truly sought competition, thereby creating a genuine issue of material fact. Most importantly, the Borough has not taken any action to enforce the exclusivity rights it claims to possess under the Competition Act. And more pertinently, PPL's largest Park customer, WEA, responded to the Borough's advances by informing the Borough that WEA did not desire to exercise its option to "choose to switch electric providers from PPL." Borough Exh. 14. A reasonable fact finder could conclude that the Borough truly sought competition, making its advances arguably privileged.
Next, PPL has not produced evidence that the Borough either caused the Park customers to (1) choose one course (breaching, in whole or in part, their contracts with PPL) over another (not breaching their contracts), or (2) be unable to perform their contracts with PPL. See RESTATEMENT (SECOND) TORTS § 766 cmt. h (explaining what it means to "induce or otherwise cause" a third person to not perform a contract). The Pennsylvania Supreme Court explained long ago, "`If words or acts of the defendant deprive the plaintiff of some advantage or benefit to which he is entitled by reason of his contract, the action is maintainable.'" Keifer v. Cramer, 51 A.2d 694, 695 (Pa. 1947) (quoting Klauder v. Cregar, 192 A. 667, 670 (Pa. 1937)). In other words, "a cause of action will not stand unless there has been some act by the defendant which served to deprive the plaintiff of some benefit to which he was entitled by contract." Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 191 (Pa.Super. 1994) (emphasis added). Mere attempts to "induce or otherwise cause" without success will not suffice. PPL has produced no evidence that any of its Park customers with which it had contractual relations "refused to perform, or were precluded from partially or completely performing, contractual duties because of [the Borough's] actions." Id. Rather, it is undisputed that no PPL Park customers ceased purchasing electricity from PPL, even for a short amount of time. Hence, there is a genuine issue of material fact regarding whether or not the Borough actually induced or otherwise caused the Park customers to not perform their contracts with PPL.
The court need not address the precise nature of the contractual relations between PPL and its Park customers, a disputed issue, because it is clear that summary judgment is inappropriate regardless of how the relationship is characterized.
Finally, the Borough claims the damages PPL claims to have suffered, "damages relating to the time, energy, and money expended" to respond to Park customers' concerns raised by the Borough in its communications with the Park customers, PPL Statement of Facts II ¶ 13 (cited in PPL Br. 8), are not recoverable in an action for tortious interference with contractual relations. In response to this argument, PPL cites comment t to § 766 of the RESTATEMENT, which states, "The cause of action is for pecuniary loss resulting from the interference. Recovery may be had also for consequential harms for which the interference was a legal cause." RESTATEMENT (SECOND) OF TORTS § 766 cmt. t. First, it is interesting to note that PPL only quoted the second sentence of the comment and deleted the word "also." PPL Reply Br. 8 n. 16. This is likely because "also" implies "in addition to" and not "instead of." So, the Restatement does not directly address how to deal with a situation in which there appear to be consequential losses but an absence of pecuniary loss resulting from the interference.
Next, the Pennsylvania Superior Court has stated, "[T]he gravamen of this tort is the lost pecuniary benefits flowing from the contract itself; other losses, such as emotional distress and loss of reputation, are consequential harms." Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa.Super. 1987), appeal denied by, 548 A.2d 256 (Pa. 1988). This implies that if there are no lost pecuniary benefits flowing from the contract itself, PPL cannot recover for the other consequential harms it may have suffered. However, one iteration of the Pennsylvania pattern jury instructions sets out the tort of "intentional interference with contractual relations" in the following manner: "One who intentionally induces or otherwise intentionally prevents another from performing a contract with a third person or makes the performance of the contract more expensive is responsible to the other for the loss he or she suffered as a result of the prevention or interference with the contract." Pennsylvania Suggested Standard Civil Jury Instructions § 13.18 (emphasis added). This implies that PPL can recover for the consequential harms it suffered despite not having suffered pecuniary loss flowing from the contract itself. Hence, it is not clear whether PPL can recover consequential damages resulting from the Borough's communications with the Park customers if there are no pecuniary losses flowing from the contract itself. Since there is a genuine issue of material fact concerning whether the Park customers breached their contracts with PPL, there is consequently a genuine issue of material fact regarding whether or not PPL has actually suffered pecuniary losses flowing from the contract itself. Therefore, it is not necessary to resolve this discrepancy now.
There is a genuine issue of material fact regarding whether or not PPL has suffered the types of damages necessary to support a claim for tortious interference with contractual relations. There are also genuine issues of material fact regarding whether or not the Borough actually induced or otherwise caused the Park customers to not perform their contracts with PPL and whether or not the Borough's actions were privileged. Accordingly, I will deny PPL's motion for summary judgment on its counterclaims for tortious interference with existing and prospective contractual relations.
II. Breach of Contract
PPL claims the Borough breached the dispute resolution provision of the power supply agreement between the parties, which reads:
In the event of a dispute between the Parties arising under this Agreement, the Parties will work together in good faith to resolve the dispute. If the Parties are unable to resolve such dispute between themselves within five days after written notification by one Party to the other of the existence of such dispute, they shall immediately refer such matter to their internal upper management for resolution. If the management of the Parties is unable to resolve the dispute within ten days after the matter is brought to that level for review[,] either Party may bring a claim or suit in accordance with applicable law.
PPL Exh. O at 8. More specifically, PPL alleges that the Borough never made a formal "written notification" to PPL identifying the existence of a dispute that might warrant litigation. Consequently, the matter was never referred to PPL's internal upper management, and, hence, the parties' upper management did not communicate in an attempt to resolve the dispute. The Borough responds by alleging that this provision "is essentially a hortatory provision" and the Borough substantively complied with the provision. Borough Br. 12-13. I cannot agree with the Borough.
First, the Borough has presented no evidence or legal support for its conclusion that the dispute resolution provision of the power supply agreement was merely hortatory, or advisory. The Pennsylvania Supreme Court has explained, "[W]here language is clear and unambiguous, the focus of [contract] interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended." Steuart v. McChesney, 444 A.2d 659, 661 (Pa. 1982). The language of the dispute resolution provision of the power supply agreement is clear and unambiguous. The provision requires the Borough to provide written notification of a dispute arising under the power supply agreement to PPL in order to give PPL the opportunity to resolve the dispute. The provision also requires the involvement of internal upper management in instances where the company officials with less authority cannot resolve the dispute on their own.
The Borough argues that the short fifteen day time frame for resolution of the dispute is evidence that "the parties were willing to take one quick shot at resolution of any contractual disputes inter sese. [And i]f an impasse was found to exist, the parties were free to go to court." Borough Br. 12. The Borough then reasons that substantial compliance with the provision will suffice. In other words, the Borough argues that since it "spent considerably longer than the prescribed fifteen days in an effort to resolve its differences with PPL," Id. at 13, the court should find that it did comply with the dispute resolution provision. However, since the contract is clear and unambiguous, the court is not free to conclude, as the Borough suggests, that the dispute resolution provision was merely an advisory clause that only requires some alternative form of compliance. Rather, the Borough's only defense is to show that it somehow did comply with the express requirements of the dispute resolution provision of the power supply agreement. The Borough has made no such showing from which a reasonable fact finder could conclude that it complied with the dispute resolution provision.
Since the Borough brought a claim for breach of contract, there is no question that the dispute arose under the power supply agreement. The Borough also does not provide any evidence of written notification of the existence of a dispute under the agreement. The only reference to any written communication from the Borough to PPL is an April 25, 2001 letter in which the Borough discusses "undertak[ing] steps to provide electric power from its municipal electric system to users in the Mid-Valley Industrial Park located within the Borough." PPL Exh. Z. The letter does not mention a dispute regarding whether PPL could impose retail stranded costs on PPL's Park customers if those customers decided to switch to the Borough as their power provider, an allegation made in the Borough's breach of contract claim. The letter does request a meeting with PPL to work out an arrangement by which the Borough can obtain all of its power service from PPL at 69kV, but does not even imply a potential dispute regarding firm power requirements, another allegation made in the Borough's breach of contract claim. At the time of this letter, there is clearly no dispute regarding retail stranded costs or firm power requirements. Hence, this letter cannot serve as the written notification of a dispute arising under the power supply agreement. Finally, the Borough implies that the June 8, 2001 meeting should be sufficient to satisfy the notice requirement of the dispute resolution provision since it was clear at and after the meeting that the two parties were at an impasse. Borough Br. 12-13. The Borough's reliance on the June 8, 2001 as proof that these issues were raised with PPL is unavailing because the Borough has failed to produce evidence in the form of affidavits or deposition testimony that would support its contention that the Borough discussed the issues contained in its complaint with PPL.
The Borough does cite portions of deposition testimony of Borough Manager Kosciuk, who was present at the meeting, but the pages referenced do not contain statements that support the Borough's position on this issue. In fact, these statements appear to support PPL's position. For example, Kosciuk testified that the parties discussed the Borough's desire to serve the Park customers and PPL was "sort of receptive. The only concern they had was the lines running through." Borough Exh. 10 at 197. Kosciuk also said that the parties discussed the feasibility of the Borough getting a 69 kV system to serve the Park, which would allow the Borough to compete with PPL for the largest Park customer. Id. at 198, 260-62. PPL responded to this inquiry by explaining that it would have to get back to the Borough about that issue. Id. at 262. Clearly, there was no impasse established at this meeting, let alone an explicit dispute regarding all of the issues raised in the Borough's complaint. The Borough also cites the deposition testimony of Robert Hudak, but the pages referenced do not contain any statements about the June 8, 2001 meeting.
In sum, the Borough has failed to show that there is a genuine issue of material fact regarding whether or not it breached the dispute resolution provision of the power supply agreement. Accordingly, I will grant PPL's motion for summary judgment as to liability on this counterclaim.
CONCLUSION
Defendants' motion for summary judgment will be granted in part and denied in part. PPL's motion for summary judgment on its counterclaims for tortious interference with contractual relations will be denied because there are genuine issues of material fact regarding (1) whether or not the Borough actually induced or otherwise caused the Park customers to not perform their contracts with PPL, (2) whether or not the Borough's actions were privileged, and (3) whether or not PPL has suffered the types of damages necessary to support a claim for tortious interference with contractual relations. On the other hand, PPL's motion for summary judgment on its counterclaim for breach of contract will be granted as to liability as there is no genuine issue of material fact and it is clear that judgment is warranted as a matter of law.