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COMMONWEALTH EDISON CO. v. DECKER COAL CO.
July 2, 1985
COMMONWEALTH EDISON COMPANY, PLAINTIFF,
DECKER COAL COMPANY, DEFENDANT.
The opinion of the court was delivered by: Moran, District Judge.
Commonwealth Edison Company's (Edison) motion for judgment on
the pleadings raises the question whether Decker Coal Company
(Decker) repudiated two contracts between the parties covering
the purchase, mining and delivery of 462,000 tons of coal.
Because it is far from clear as a matter of law that Decker
repudiated the contracts, Edison's motion is denied.
On June 4, 1982, Decker and Edison entered into two related
contracts. In the Coal Lease Purchase Agreement, Edison agreed to
purchase in five annual installments Decker's lease interest in
2.15 million tons of unmined coal. The Coal Mining Agreement gave
Decker the exclusive right to mine and deliver the coal.
The coal covered by the agreements is known as "Reserve Coal".
Edison was originally obligated to purchase, and Decker to mine
and deliver this coal in the years 1981-1985, under a June 20,
1974 contract. The 1982 agreements modified this arrangement by
(1) obligating Edison to purchase Decker's lease interest in the
Reserve Coal on July 1 of the year in which it had originally
been scheduled to receive delivery of the coal and (2) deferring
mining and delivery of each annual installment for five years, to
the 1986-1990 period.
The 1982 Coal Mining Agreement provided the following delivery
Year Reserve Coal Delivered (tons)
The Agreement provided that the Reserve Coal "shall be scheduled
for delivery on a monthly basis, ratably over the year for which
it is scheduled." (Subpar. 2.)
Subparagraph 1(b) of the Agreement provided that the year of
delivery of the Reserve Coal could be modified at Edison's option
upon proper notice. The provision at issue here reads:
. . Edison may on notice to Decker on or before
September 1 of the year six years preceding that in
which deliveries are scheduled in accordance with
subparagraph (a) above, accelerate in whole or in
part the deliveries of Reserve Coal to the year five
years preceding that in which it is scheduled, and
with the consent of Decker, which shall not be
unreasonably withheld, to any other year preceding
that for which it is scheduled under subparagraph
(a). . . .
There is no indication that the coal that Edison ordered on an
accelerated basis was not to be delivered on a monthly basis
ratably over the course of the year, in accordance with
Please refer to the Coal Mining Agreement dated
June 4, 1982, as amended (1982 Mining Agreement)
between Decker Coal Company and Commonwealth Edison
Edison in accordance with subparagraph 1(b) of the
1982 Mining Agreement hereby elects to accelerate the
deliveries of 462,000 tons ...
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