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Whipple v. Pepco Holdings, Inc.

Superior Court of Delaware, New Castle

July 16, 2015

WILLIAM WHIPPLE III, individually and on behalf of all others similarly situated, Plaintiff,
v.
PEPCO HOLDINGS, INC., and DELMARVA POWER & LIGHT COMPANY, Defendants.

Submitted: April 27, 2015

Upon Defendants Pepco Holdings, Inc. and Delmarva Power & Light Company's

Motion to Dismiss: GRANTED.

Thomas F. Driscoll III, Esquire, Bifferato LLC, 800 N. King Street, Plaza Level, Wilmington, Delaware 19899, George D. Pilja, Esquire (pro hac vice) (argued), Foran Glennon, Attorneys for Plaintiff.

Robert W. Whetzel, Esquire (argued), Todd A. Coomes, Esquire, Travis S. Hunter, Esquire, Richards, Layton & Finger, P.A., One Rodney Square, Attorneys for Defendants.

OPINION

JAN R. JURDEN, PRESIDENT JUDGE

I. INTRODUCTION

Before the Court is Defendants Pepco Holdings, Inc. and Delmarva Power & Light Company's Motion to Dismiss. On June 23, 2014, William Whipple III, individually and on behalf of all others similarly situated ("Plaintiff"), filed a class action complaint against Pepco Holdings, Inc. and Delmarva Power & Light Company ("Defendants"). Plaintiff alleges that Defendants are charging an "unjust or unreasonable rate" for electrical power provided by fuel cells known as "Bloom Servers" because the Bloom Servers are consuming more natural gas to generate electricity than is permitted under the Coastal Zone Act Permits.

Plaintiff also asserts a claim of common law fraud, alleging that Defendants "knowingly and recklessly concealed or suppressed" that they were aware the Bloom Servers would consume more natural gas than is permitted.[1]

On September 8, 2013, Defendants filed a motion to dismiss the Complaint arguing that this Court lacks subject matter jurisdiction and that Plaintiff failed to plead fraud with particularity. For the reasons that follow, Defendants' Motion to Dismiss is GRANTED.

II. BACKGROUND

A. Parties

Delmarva Power & Light Company ("Delmarva") is a Delaware public utility that supplies electricity to Delaware residents.[2]

Delmarva is a subsidiary of Pepco Holdings, Inc. ("Pepco").[3] Bloom Energy Corporation ("Bloom") designs, manufactures, and provides energy servers ("Bloom Servers") as an alternative means of generating electricity to ...


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