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April 11, 1994



The opinion of the court was delivered by: ALAN N. BLOCH

BLOCH, District J.

 Presently before this Court are the motions for summary judgment filed by defendants, Florence Mining Company and Quent, Inc. (together "defendant Mining Companies") and defendants, Atlantic City Electric Company, Baltimore Gas and Electric Company, Delmarva Power & Light Company, Metropolitan Edison Company, Pennsylvania Power & Light Company, Philadelphia Electric Company, a Potomac Electric Power Company, Public Service Electric & Gas Company, and UGI Corporation (together "defendant Utility Companies"). For the reasons stated in this Opinion, defendants' respective motions will be granted.

 I. Background

 The following are the undisputed facts of record. Defendant Florence Mining Company *fn1" (Florence Mining) had been engaged in the business of selling deep mined coal exclusively to the Conemaugh Power Generation Station (Conemaugh Station). The Conemaugh Station, which is owned by defendant Utility Companies, traditionally purchased the coal on a "cost plus contract basis" (the Cost Plus Contract).

 On or about October 29, 1991, defendant Utility Companies canceled the Cost Plus Contract. On or about October 30, 1991, defendant Quent exercised the Stock Option and acquired control of defendant Florence Mining. On the same date as Quent's acquisition of Florence Mining, defendant Utility Companies entered into an operating agreement with Florence Mining (the Operating Agreement). In addition, defendant Utility Companies sent a letter dated October 30, 1991, to the Pennsylvania Secretary of Labor and Industry as well as the Chairman of the Pennsylvania Public Utility Commission (the Assurance Letter). Thus, through these transactions, ownership of Florence Mining was transferred from Rochester & Pittsburgh to Quent.

 As a result of the cancellation of the Cost Plus Contract, defendant Florence Mining notified its employees on October 30, 1991, that it would be closing its mines and other facilities effective December 30, 1991. Florence Mining's mines and facilities included: (1) the Heshbon Mine, which produced the coal; (2) the Coal Preparation Facility, which cleaned coal for customer use; and (3) the Central Shop, which repaired equipment (collectively the Florence Mining Facilities). *fn3"

 The record reveals that the Florence Mining facilities have been shutdown twice. The first shutdown, which occurred in late October, 1991, was temporary and the second shutdown, which is the subject of this lawsuit, was permanent.

 The first shutdown caused the employees of the Florence Mining Facilities to cease work on October 30, 1991. Florence Mining, however, continued to pay the employees through December 30, 1991.

 Based upon lobbying by plaintiffs, defendant Utility Companies contractually agreed to purchase coal from Florence Mining for the Conemaugh Station at a fixed price of $ 35 per ton until December 31, 1992, with no provision for renewal (the New Supply Contract). With the New Supply Contract, Florence Mining began plans to reopen the facilities.

 Defendant Mining Companies contend that, based upon the Unions' extensive involvement in the contract negotiations, the plaintiffs were on notice that the Florence Mining Facilities would be closed on December 31, 1992, absent another supply contract. *fn4"

 After defendant Utility Companies agreed to the New Supply Contract, plaintiffs and Florence Mining negotiated a new collective bargaining agreement, entitled "The Florence Mining Company Closure Agreement of 1992" (the Closure Agreement). The Closure Agreement acknowledged that the New Supply Contract expired on December 31, 1992, and that, in order to meet the terms of that contract, certain production targets were required. On April 15, 1992, Florence Mining and defendant Utility Companies entered into a Termination Agreement, which superseded the Operating Agreement.

 In addition, it is undisputed that the Central Shop, the Coal Preparation Facility and the Heshbon Mine were geographically separate. The Heshbon Mine was approximately ten miles by road from the Central Shop and approximately twelve miles by road from the Coal Preparation Facility. The Central Shop was approximately two miles by road from the Coal Preparation Facility. The Coal Preparation Facility processed both coal from the Heshbon Mine as well as from mines not owned by Florence Mining. Moreover, it is undisputed that more than fifty percent of the coal processed by the Coal Preparation Facility in 1992 was from outside sources. Similarly, the employees of the Central Shop repaired Florence Mining's equipment as well as that of other companies.

 Each of the separate union locals constituted its own seniority unit. Each of the Florence Mining facilities had its own employees and equipment. *fn6" Moreover, it is undisputed that the employees of the Heshbon Mine and the Coal Preparation Facility worked only at their respective facility. The Central Shop employees spent roughly ninety percent of their time working at the Shop facility. In addition, each had separate management and were viewed separately by the Federal Mine Safety and Health Administration.

 The Heshbon Mine operated until December 30, 1992. The Coal Preparation facility continued to operate until December 31, 1992. The Central Shop continued to operate until February 8, 1993.

 On June 28, 1993, the plaintiffs, as labor organizations and the collective bargaining representatives of the Union employees at the Florence Mining Facilities, filed the instant lawsuit alleging that defendants violated the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101-2109 (Supp. 1994) (the WARN Act).

 The motion for summary judgment filed by defendant Mining Companies raises numerous challenges to plaintiffs' case. First, they contend that the WARN Act is inapplicable to the closure of the Heshbon Mine and the Coal Preparation facility because 29 U.S.C. § 2103(1) exempts plant closings that are the result of the completion of a particular project or undertaking. Second, they argue that the closure of the Heshbon Mine and the Coal Preparation facility did not qualify as either a "plant closing" or a "mass layoff" because it did not cause "employment loss" to "fifty or more employees" excluding "part-time employees." *fn7" Third, they challenge plaintiffs' standing to sue for damages on behalf of their individual members. Fourth, they contend that each of the Florence Mining Facilities constitutes a "single set of employment" and, therefore, even if part-time employees are included, the fifty-employee threshold cannot be met. Finally, they contend that they have provided appropriate notice under the terms of the WARN Act.

 After briefly reviewing the standards applicable for resolving summary judgment motions, this Court will address defendants' dispositive arguments.

 II. Discussion

 Summary judgment may be granted 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). "Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993); International Raw Materials, Ltd. v. Stauffer Chemical Corp., 898 F.2d 946, 949 (3d Cir. 1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's evidence as true. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1991).

 The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052 (1987). Where the non-moving party will bear the burden the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 322. The non-moving party "must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or . . . vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991). Rule 56 "enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Moreover, "the unsworn statements of counsel in memoranda submitted to the court are even less effective in meeting the requirements of Rule 56(e) than are unsupported allegations in the pleadings." Id. If the non-moving party does produce contradictory evidence, then the "believability and weight of the evidence" remains the province of the finder of fact. Big Apple, 974 F.2d at 1363.

 Preliminary, this Court notes that "the task of resolving the dispute over the meaning of [a statute] . . . must begin with the language of the statute itself." United Steelworkers of America, AFL-CIO-CLC v. North Star Steel Co., Inc., 5 F.3d 39, 41 (3d Cir. 1993) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989)), cert. denied, 114 S. Ct. 1060 (1994). "If the statutory language is clear on its face" as it relates to the issue before the Court, then the "inquiry is generally complete and the plain language controls." Id. (citation omitted). Accord Estate of Cowart v. Nicklos Drilling Co., 120 L. Ed. 2d 379, 112 S. Ct. 2589, 2594 (1992).

 A. Standing of Union plaintiffs

 The Supreme Court has held that "Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one 'who otherwise would be barred by prudential standing rules.'" Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)). In Warth, the Court explained the role of Congress in the area of standing:

Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself even if it is an injury shared by a large class of other possible litigants. But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim.

 Warth, 422 U.S. at 501 (citations omitted) (emphasis added).

 The "irreducible minimum" that must be established to satisfy the "Case or Controversy" requirement of Article III of the Constitution is as follows:

(1) "injury in fact," by which [the Supreme Court] mean[s] an invasion of a legally protected interest that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," (2) a causal relationship between the injury and the challenged action, by which [the Court] mean[s] that the injury "fairly can be traced to the challenged action of the defendant," and has not resulted "from the independent action of some third party not before the court," and (3) a likelihood that the injury will be redressed by a favorable decision, by which [the Court] mean[s] that the "prospect of obtaining relief from the injury as a result of a favorable ruling" is not "too speculative."

 Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 124 L. Ed. 2d 586, 113 S. Ct. 2297, 2302 (1993).

 It is well settled that when an association seeks to assert the rights of its members, it must satisfy the following requirements: "(a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); see also International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Brock, 477 U.S. 274, 282, 91 L. Ed. 2d 228, 106 S. Ct. 2523 (1986); Natural Resources Defense Council v. Texaco Refining and Marketing, Inc., 2 F.3d 493, 505 (3d Cir. 1993).

 The Supreme Court expressly recognized in Warth that "the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves" is subject to "exceptions, the most prominent of which is that Congress may remove it by statute." Warth, 422 U.S. at 509.

 Later in the Warth opinion, the Supreme Court elaborated on the prudential limitations imposed on an association:

As noted above, to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured. But, apart from this, whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.

 Warth, 422 U.S. at 515-16 (emphasis added).

 The Court of Appeals for the Third Circuit has determined that the third prong of the Hunt test paraphrases "a more detailed statement first made by the Court in Warth and repeated in later cases." Hospital Council of Western Pennsylvania v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991). The more detailed statements cited by the Court of Appeals explained:

So long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members entitled to invoke the court's jurisdiction.

 Id. (quoting Warth, 422 U.S. at 511).

 In the WARN Act, Congress provided as ...

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