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October 2, 1957

GENERAL ELECTRIC COMPANY and Sylvania Electric Products, Inc., Defendants

The opinion of the court was delivered by: WILLSON

Plaintiff in its brief says the instant case is a treble damage action brought under Section 7 of the Sherman Act and Section 4 of the Clayton Act, 15 U.S.C.A. § 15 and note, against General Electric and Sylvania to recover damages for injury to plaintiff's business, suffered by plaintiff as the result of certain judicially established violations of the antitrust laws by the defendants, General Electric and Sylvania, all as more fully specified in the Amended Complaint.

The Complaint was filed January 4, 1956. An Amended Complaint was filed July 10, 1956. Responsive answers have been filed by both defendants. The case is presently before the court on the defendants' motion for partial summary judgment, pursuant to the provisions of Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C. Defendants say they are not liable to plaintiff in any manner for any acts, conduct or activities of the defendants occurring prior to December 28, 1945, the date plaintiff executed a certain release in favor of Corning Glass Works.

 Plaintiff Solar Electric Corporation is a Delaware corporation, with its principal manufacturing establishment at Warren, Pennsylvania, in this judicial district. Plaintiff's claim for relief is based on its allegation of damage to its business which resulted from a conspiracy among General Electric, Sylvania and others to restrain trade in, and to monopolize the manufacture, sale and distribution of incandescent lamps in this country and elsewhere. Solar has been engaged in the manufacture, sale and distribution of incandescent lamps for many years. General Electric, through its lamp division, has been and is one of the large manufacturers and distributors of incandescent lamps in this country. Sylvania is and for many years has been a large manufacturer and distributor of such lamps.

 Defendant's motion for summary judgment is based upon the fact that on December 28, 1945, Solar gave to Corning Glass Works (Corning), a New York corporation, a general release, which, defendants contend, was intended to and did release Corning from any liability to Solar by reason of activities by Corning, alone, or in conjunction with General Electric and Sylvania, based upon claimed participation by these companies in a conspiracy to monopolize and restrain trade in the incandescent lamp business. Defendants contend that the conspiracy and the conduct alleged in the Complaint herein are the same as those for which Corning received a general release, and since Corning was regarded by Solar as jointly responsible for such conduct, the release constitutes a complete immunity to General Electric and Sylvania to the same degree as it does for Corning. This defense is separately set forth in the answers of defendants.

 Since the Complaint contains allegations of wrongful conduct and damage to Solar, which occurred or which may be interpreted to have occurred after December 28, 1945, the date of the Corning release, defendants' motion is only for judgment as to events occurring prior to that date and their consequences, recognizing that plaintiff may seek to assert claims for relief contained in the Complaint, based upon acts occurring after that date.

 It is to be noticed that Rule 56(c) says, in part:

 '* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, * * * 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.' (Emphasis supplied.)

 The Court of Appeals of this Circuit has said:

 '* * * The law is clear that one who moves for a summary judgment has the burden of demonstrating that there is no genuine issue of fact. * * *' Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 3 Cir., 190 F.2d 817, 824.

 See also Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167, 168, where the language of the court is:

 '* * * 'summary judgment may not be given under Rule 56 * * * if there be an issue presented as to the existence of any material fact.' * * * 'Upon a motion for a summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. * * * All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. * * *"

 Thus, the problem before the court is to determine whether the pleadings, depositions, affidavits and admissions reveal the absence of any factual issue for determination. Plaintiff, in its brief, has referred to judicially established violations of the antitrust laws by the two defendants, General Electric and Sylvania. The Amended Complaint cites Civil Action No. 1364, in the United States District Court for the District of New Jersey, commenced by the government on January 27, 1941, against some twelve defendants, among which were General Electric and Sylvania.

 Plaintiff in its Amended Complaint says the complaint in that case charged violations by the defendants herein and others over a long period of time, of the various sections of the antitrust laws, 'in their incandescent lamp manufacturing and selling activities.' The Amended Complaint briefly refers to the findings of the court made in United States v. General Electric Co., D.C.1949, 82 F.Supp. 753, and in paragraph 12, refers generally to a finding by Judge Forman that General Electric was monopolizing and for a long period of time had monopolized the incandescent lamp industry of the United States, not only by itself but by separate combinations with one or more of the defendants in the New Jersey case. Plaintiff refers also to final judgment by Judge Forman on October 8, 1953, D.C., 115 F.Supp. 835, from which no appeal was taken.

 Thus, it becomes apparent that plaintiff's present complaint alleges a broad general all-encompassing general conspiracy between the two defendants and others, covering every phase of the incandescent lamp industry which in turn has hampered and harassed plaintiff and other independent manufacturers at every turn. Plaintiff, also, it is appearent, relies upon the statute, Title 15 U.S.C.A. § 16, which permits a judgment in favor of the United States under the antitrust laws to be introduced as prima facie evidence against a defendant in a private antitrust suit such as is this case.

 At this point in the discussion it is appropriate that the factual situation existing at the time the release was executed be examined. The facts are shown by the pleadings, the affidavits and depositions on file. There is no factual dispute of any consequence. There is, however, a difference of opinion on the interpretation of the events which took place. The parties differ as to the construction of the correspondence which led up to the release. Especially do the parties differ as to the legal effect and scope of the release itself. Involved in the points mentioned, also, is the decision of Judge Forman in the New Jersey case and exactly what is there held.

 At the oral argument, briefs were filed and since that time reply briefs have been filed on both sides. It is believed that plaintiff's position is summarized in its supplemental or reply brief. Plaintiff raises seven points. They are set forth in its reply brief and are set forth here verbatim.

 '1. The release given to Corning on December 28, 1945, and upon which defendants rely, was procured by Corning under circumstances which require submission of all evidence of facts surrounding the negotiations for settlement between Corning and plaintiff to the jury whose povince it is to determine to what extent the release is operative and the nature and validity of the claims against Corning from which Corning is to be deemed released. There is sufficient evidence here present from which a jury might reasonably and properly find that the release is limited to (a) claims arising out of discriminatory pricing practices of Corning relating to sales of glass bulbs, tubing and cane, and (b) Corning's refusal to sell inside-frosted bulbs to plaintiff.

 '2. Only claims within the actual contemplation of all parties to a release, whether the release be in general or specific form, are in fact released thereby. A jury might reasonably and properly find from the evidence here present that the claims released were limited to the two claims specified in the foregoing paragraph hereof.

 '3. The consideration paid by Corning for the release was intended to reimburse plaintiff only for damages resulting from Corning's refusal to sell plaintiff inside-frosted bulbs. As a matter of law, this Court should rule that the consideration thus paid was intended only as partial satisfaction of damages suffered by plaintiff, and that plaintiff may proceed for its further damages against any other persons, firms or corporations causing such further damages.

 '4. The consideration paid for the release was plainly and expressly intended as reimbursement for damages caused by a single activity, separable both in time and effect from damages caused plaintiff by other wholly separate activities. As a matter of law this Court should rule that plaintiff may prosecute any of its claims for damages caused by such other activities against any other person, firm or corporation responsible therefor.

 '5. As a matter of law and in accordance with established rules of construction, the scope of the Corning release must be limited to claims arising from discriminatory pricing of glass bulbs, tubing and cane and Corning's refusal to sell inside-frosted bulbs.

 '6. There is insufficient evidence here present which would support a ruling by this Court that Corning and either or both of the defendants were co-conspirators in the activities claimed by plaintiff in the Amended Complaint to have caused it damage.

 '7. Whether or not Corning did co-conspire with either or both defendants in such activities is a question of material fact to be submitted to the jury.'

 With the plaintiff's contention in mind, a brief summary of the facts appearing from the documents before me and concerning which there is no substantial dispute, shows:

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