Anserphone, Inc. v. Bell Atlantic Corp.

• Decision Date: 25 November 1996
• Docket Number: Civil Action No. 95-1301.
• Citation: 955 F.Supp. 418
• Parties: ANSERPHONE, INC., a corporation, Plaintiff, v. BELL ATLANTIC CORPORATION, a corporation; and Bell-Atlantic Pennsylvania, a corporation, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

955 F.Supp. 418

ANSERPHONE, INC., a corporation, Plaintiff, v. BELL ATLANTIC CORPORATION, a corporation; and Bell-Atlantic Pennsylvania, a corporation, Defendants.

Civil Action No. 95-1301.

United States District Court, W.D. Pennsylvania.

November 25, 1996.

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John E. Nickoloff, Library, PA, for Plaintiff.

Jeffrey J. Leech and John E. Graf, Tucker Arensberg, P.C., Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

BLOCH, District Judge.

Presently before the Court is defendants' motion for summary judgment. For the reasons set forth in this opinion, this Court will grant defendants' motion in part and deny it in part.

I. Background

A. Procedural history

Plaintiff brought this action against defendants, Bell Atlantic Corporation (Bell Atlantic) and its subsidiary, Bell Atlantic-Pennsylvania (Bell-PA), by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Allegheny County, Pennsylvania, on July 16, 1993.¹ After plaintiff filed its complaint alleging that defendants violated § 2 of the Sherman Act, 15 U.S.C. § 2, and engaged in other tortious conduct, defendants removed this action to this Court based upon the federal question jurisdiction conferred by plaintiff's Sherman Act claim. Following this Court's order dated December 14, 1995, which granted in part and denied in part defendants' motion to dismiss, the following claims remained: (1) Count I alleging a violation of § 2 of the Sherman Act against both defendants; (2) Count II alleging breach of the duty of good faith and fair dealing against Bell-PA; and (3) Count VI alleging tortious interference with prospective and existing contractual relations against both defendants.

B. Factual background²

Plaintiff is engaged in the business of providing telephone answering services, primarily to business customers. As a provider of answering services, plaintiff employs live operators around the clock to receive its customers' telephone calls which have been electronically forwarded to plaintiff. To utilize plaintiff's services, plaintiff's customers must forward their calls through the use of defendants' "call-forwarding services."

Beginning in the mid-1980's, plaintiff began receiving a number of complaints from its customers, including, but not necessarily limited to, the following: (1) the call-forwarding services for some of plaintiff's customers were completely ceasing to work; (2) calls for some of plaintiffs customers were being sent to other answering companies; (3) numerous calls from clients of plaintiff's customers would disconnect after one ring; (4) many incoming calls contained the wrong identification number, thereby causing plaintiff's employees to answer with the wrong greeting; and (5) plaintiff's customers' clients often received a greeting informing them that their dialing attempt had failed.³ Plaintiff complained to Bell-PA about these problems, and Bell-PA took certain steps to ameliorate plaintiff's concerns. Dissatisfied with what plaintiff perceived to be Bell-PA's inadequate response, however, plaintiff filed a complaint with the Pennsylvania Public Utilities Commission (PUC).⁴ The PUC heard evidence on the matter and found that plaintiff had not offered sufficient evidence to prove the existence of some of its complaints, while ordering Bell-PA to take certain actions with regard to other of the plaintiff's complaints.

Meanwhile, Bell-PA entered the answering services market in March, 1991, when it introduced Voice Mail and Answer Call to the public in the Pittsburgh, Pennsylvania area. Voice Mail and Answer Call provide answering services via electronic recordings, similar to a home answering machine. Plaintiff has proffered evidence demonstrating that when Bell-PA first entered the answering services market, it aggressively marketed these services and ignored certain safeguards meant to prevent Bell-PA from soliciting plaintiff's customers.

Currently, plaintiff's customers continue to experience problems with their telephone services and, as a result, some of plaintiff's customers have stopped using plaintiff's answering services.

II. Summary judgment standard

Although at one time the Supreme Court endorsed a stricter standard when a summary judgment motion involved an antitrust claim, the standard to be applied today is the same as with any other type of action. See, e.g., Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 747-48 (3d Cir. 1996) (citing Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468-69, 112 S.Ct. 2072, 2082-83, 119 L.Ed.2d 265 (1992)).

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 a 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (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, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). Moreover, the Court must draw all reasonable inferences in favor of the non-moving party. Big Apple BMW, 974 F.2d at 1363. Thus, if 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, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Where the non-moving party will bear 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, 106 S.Ct. at 2552.

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, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). See also Pastore v. Bell Telephone Company of Pennsylvania, 24 F.3d 508, 511 (3d Cir.1994) ("[T]he non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact.").

III. Discussion

Defendants argue that summary judgment under Fed.R.Civ.P. 56 is appropriate because, defendants contend, plaintiff cannot prove the essential elements of any of its claims. In the alternative, defendants contend that the applicable statutes of limitations and the doctrine of collateral estoppel mandate that partial summary judgment be granted in favor of defendants.

This Court has concluded that summary judgment in favor of defendants is appropriate with regard to Count I of plaintiff's complaint, that is, plaintiff's Sherman Act claims against both defendants. In addition, this Court will grant summary judgment in favor of defendant Bell Atlantic with regard to Count VI of plaintiff's complaint, that is, plaintiff's claims of tortious interference with prospective and existing contractual relations. This Court will also grant summary judgment in favor of defendant Bell-PA with regard to plaintiff's claim of tortious interference with prospective contractual relations only. Finally, partial summary judgment in favor of defendants will be granted with regard to application of the pertinent statutes of limitations on plaintiff's claims of breach of the duty of good faith and fair dealing (Count II) and tortious interference with existing contractual relations (Count VI). The Court will now discuss each of plaintiff's claims.

A. Sherman Act

In Count I of its complaint, plaintiff asserts a claim against defendants under § 2 of the Sherman Act, 15 U.S.C. § 2. This statute provides:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

15 U.S.C. § 2. Section 15 of the Sherman Act provides a private civil right of action for treble damages to any person injured in his business or property by reason of any violation of § 2 of the Sherman Act. See 15 U.S.C. § 15.

"To survive a summary judgment motion on its Sherman Act § 2 monopolization claim, [plaintiff must] show that (1) [defendants] possessed monopoly power in the relevant market, and that (2) [defendants] willfully acquired and maintained monopoly power and did not acquire its monopoly share due to `growth or development as a consequence of a superior product, business acumen, or historical accident.'" Ideal Dairy, 90 F.3d at 749 (quoting Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802,...