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GREGORY A. KASEMER AND PATRICK G. KASEMER v. NATIONAL FUEL GAS DISTRIBUTION CORPORATION (07/03/80)

filed: July 3, 1980.

GREGORY A. KASEMER AND PATRICK G. KASEMER, A CO-PARTNERSHIP D/B/A FOUNTAIN HOUSE PARK AND ANDREW G. KASEMER AND DOROTHY M. KASEMER
v.
NATIONAL FUEL GAS DISTRIBUTION CORPORATION, APPELLANT



No. 1252 APRIL TERM, 1978, Appeal from Judgment of the Court of Common Pleas, Civil Action - Law, of Crawford County, at No. 337 September Term, 1976.

COUNSEL

Norman H. Stark, Erie, for appellant.

Paul D. Shafer, Jr., Meadville, submitted a brief on behalf of appellees.

Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Van Der Voort

[ 279 Pa. Super. Page 336]

This is a claim in assumpsit by operators of a mobile home park against a gas company to recover damages alleged to result from the gas company's refusal to supply gas in breach of an alleged contract of defendant to supply gas service to plaintiffs for upwards of 110 mobile homes.

Plaintiffs began the development of the park in 1972, intending eventually to construct 100 or more sites for rental to operators of mobile homes. By the end of 1974 they had readied for occupancy approximately 11 sites of which 5 were occupied between September, 1974 and April 1, 1975.

Defendant (sometimes referred to hereafter as NFG) supplied gas to plaintiffs' tenants until April 1, 1975, but refused to supply gas to additional tenants after that date. The basis of NFG's refusal was an order dated February 1, 1972 of the Pennsylvania Public Utility Commission, forbidding the gas company to take on additional customers beyond its peak capacity. NFG determined that the PUC Order of February 1972 became applicable to it, effective April 1, 1975, because of curtailments of gas supply by its suppliers in December of 1974. See Leveto v. National Fuel Gas Distribution Corporation v. The Pennsylvania Public Utility Commission, 243 Pa. Super. 510, 366 A.2d 270 (1976).

Plaintiffs brought an action in equity against the NFG seeking a mandatory injunction to force NFG to supply gas service to plaintiffs. On May 27, 1975, the Court of Common Pleas ordered defendant to provide gas service to plaintiffs up to a maximum of thirty units. Defendant apparently complied with this order of May 27, 1975 until July 23, 1975 when the P.U.C. issued its order directing

[ 279 Pa. Super. Page 337]

    defendant not to make further sales of gas, other than to customers already being served, and defendant then refused to supply gas to additional tenants of plaintiffs.

On August 12, 1975 the Common Pleas Court held NFG in contempt of the court's order of May 27, 1975. NFG purged itself of contempt by renewing the supply of gas for plaintiffs, but appealed the contempt order to the Superior Court without asking for a supersedeas. On September 25, 1975 the PUC petitioned to intervene in the appeal to the Superior Court and asked for a supersedeas. The supersedeas was granted on October 6, 1975 and apparently NFG discontinued the supply of gas until November 22, 1976, on which date the Superior Court affirmed the Common Pleas contempt order of August 12, 1975. See Leveto v. NFG, supra.

As of November 22, 1976 NFG resumed the supply of gas for plaintiffs.

In August 1976, plaintiffs filed this present action in assumpsit against NFG for breach of an alleged contract to supply gas, claiming damages originally for loss of value of their real estate,*fn1 plus extra expenditures necessitated by defendant's refusal to supply gas, plus (by an amended complaint) "loss of income over the past 1 1/2 years" (Paragraph 12a of the Complaint).

Defendant's answer denied the contract and any breach of contract, and any liability for damages.

The case went to trial and a jury returned a verdict against defendant for $45,000.00.

Defendant's motions for judgment N.O.V. and for a new trial were refused, and defendant has filed this present appeal.

Defendant-appellant has raised three issues in this present appeal. The issue which we will first consider is this:

"The Appellees are not entitled to damages for an alleged breach of contract with NFG during the period of time

[ 279 Pa. Super. Page 338]

NFG was bound by an order of this Court not to perform its obligations under the contract."

The printed record appears to establish that NFG failed, or refused to supply gas to plaintiffs during these periods:

April 1, 1975 to May 27, 1975, or 57 days

(because NFG understood it was so required under ...


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