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E.L.G. ENTERPRISES CORP. AND ALL OTHERS SIMILARLY SITUATED WITHIN COMMONWEALTH PENNSYLVANIA v. GULF OIL COMPANY. APPEAL E.L.G. ENTERPRISES CORP (10/16/81)

filed: October 16, 1981.

E.L.G. ENTERPRISES CORP. AND ALL OTHERS SIMILARLY SITUATED WITHIN THE COMMONWEALTH OF PENNSYLVANIA,
v.
GULF OIL COMPANY. APPEAL OF E.L.G. ENTERPRISES CORP



No. 734 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division-Trial, of Montgomery County, at No. 79-13756

COUNSEL

Neil E. Jokelson, Philadelphia, for appellant.

Carole Dotson, Bala Cynwyd, for appellee.

Cercone, President Judge and Wickersham and Van der Voort, JJ.

Author: Van Der Voort

[ 291 Pa. Super. Page 416]

This is a dispute between E. L. G. ENTERPRISES CORP., appellant herein, which operates an automobile service station at which it sells Gulf gasoline, and GULF OIL CORPORATION, appellee, from whom the appellant buys its gasoline. Appellant sues for itself and all other retail gasoline dealers in Pennsylvania who sell Gulf gasoline.

Appellant seeks injunctive relief and damages based upon allegations that the appellee delivers to its retailers gasoline which is not temperature corrected to 60 degrees F., and that appellee refuses to adjust its billings to reflect the shrinkage of gasoline sold to it at higher temperatures. Appellant contends that such practice of selling "hot gasoline" constitutes a violation of the Weights and Measures Act of 1965, 73 P.S. § 1651 et seq., and Regulations issued under it (70 Pa. Code § 21.1 et seq.); and specifically § 23.13(a)(2) of the Regulations, the relevant portion of which reads:

"(a) The declaration of the quantity of a particular commodity shall be expressed in terms of liquid measure if the commodity is liquid, . . ."

[ 291 Pa. Super. Page 417]

(2) if in units of liquid measure, it shall be in terms of the United States gallon of 231 cubic inches of liquid quart, liquid pint, or fluid ounce subdivisions of the gallon, and shall express the volume of 68 degrees F. (20 degrees C), except in the case of petroleum products for which the declaration shall express the volume of 60 degrees F. (15.6 degrees C) . . .'

The appellee has filed Preliminary Objections to the appellant's Complaint asserting that primary jurisdiction over the subject matter lies with the Attorney General under authority vested in him by the Weights and Measures Act. The lower Court dismissed the Complaint for want of jurisdiction and appellant has appealed the Order. We reverse.

The lower Court has based its order of dismissal on the reasoning that primary jurisdiction is vested in the Attorney General by the Weights and Measures Act of 1965 and that the lower Court cannot act upon the Complaint until complaint has been made to the Attorney General (73 P. S. § 1661) and he has had a chance to determine whether the practice complained of constitutes a violation of the statute or regulations issued thereunder. The rationale of the ruling is said to lie in the advisability of securing the expert judgment of the Attorney General and the Bureau of Weights and Standard Measures which he controls on any technical questions that may be involved in the issue raised by the Complaint.

The practice of deferring judicial action until an administrative agency has passed upon such aspects of a litigation as may lie within its competence is widely known as the doctrine of primary jurisdiction. It is a doctrine developed and widely used in our Federal Courts as a means of reconciling the functions of administrative agencies with the judicial functions of a Court. It has been particularly useful with those agencies that have broad administrative and quasi judicial authority, such as the Interstate Commerce Commission exercises over ...


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