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WEST PENN POWER COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY (03/23/67)

decided: March 23, 1967.

WEST PENN POWER COMPANY
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT



Appeal from order of Court of Common Pleas of Butler County, Sept. T., 1964, No. 151, in case of West Penn Power Company v. Nationwide Mutual Insurance Company.

COUNSEL

Lee C. McCandless, for appellant.

William C. Robinson, with him James F. Boyer, and Henninger & Robinson, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.

Author: Watkins

[ 209 Pa. Super. Page 510]

This is an appeal from an order of the Court of Common Pleas of Butler County sustaining preliminary objections to appellant's new matter and striking as impertinent to the issue new matter in appellant's amended answer.

This action in assumpsit was brought by West Penn Power Company, the appellee, a public utility company, for electric service supplied to Nationwide Mutual Insurance Company, a corporation, the appellant, over a period of 31 months, beginning March 10, 1961, and ending September 10, 1963. Because of an error in billing or inadvertence on the part of the appellee, the customer was billed for less than the amount of electric

[ 209 Pa. Super. Page 511]

    service supplied and the customer paid the bills as presented. This action is for the difference between that billed and paid and the amount that should have been billed and paid based on the quantities (KWHRS) actually supplied.

The appellant in its answer, under new matter, averred facts to constitute defenses of accord and satisfaction, payment, estoppel, and breach of contract.

The appellee filed preliminary objections in the nature of motions to strike and in the nature of a demurrer, alleging that the only issue that the court could consider was the amount or quantity of service rendered by the public utility and whether or not payment for said service had been made in accordance with the effective tariff of the public utility as filed with the Public Utility Commission. The court below sustained the motions to strike and the demurrer and permitted the appellant twenty days to file amendment to the new matter.

The appellant filed an amendment and the appellee again filed preliminary objections in the nature of a motion to strike and in the nature of a demurrer, and alleged, inter alia, that the amended answer merely restated portions of the original answer and new matter which had been struck by the court's order. The court below agreed with the appellee and granted the motions and sustained the demurrer stating: "The only issue presented by the pleadings relates to the quantity of electricity (KWHRS) served by plaintiff to defendant during the 31 month period. The tariff or rate is established by law. The amount paid during the 31 month period is admitted. The alleged additional service above that originally billed by plaintiff is denied by defendant. This creates the issue."

We agree with the court below that the only issue is whether the appellant has paid in full for electricity furnished it by the ...


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