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EUGENE M. LITMAN v. PEOPLES NATURAL GAS COMPANY (08/20/82)

filed: August 20, 1982.

EUGENE M. LITMAN, INDIVIDUALLY AND TRADING AS RIVERVIEW PARK ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP, APPELLANT,
v.
THE PEOPLES NATURAL GAS COMPANY, A PENNSYLVANIA CORPORATION



No. 685 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD76-14014.

COUNSEL

John M. Tighe, Pittsburgh, for appellant.

John R. Kenrick, Pittsburgh, for appellee.

Beck, Montemuro and Popovich, JJ.

Author: Popovich

[ 303 Pa. Super. Page 347]

Appellant, Eugene Litman, appeals from the order of the court en banc denying his motion for a new trial and for partial judgment n.o.v., and which affirmed the trial court's grant of appellee's motion for a directed verdict. We affirm.

As we said in Continental Super Market Food Service, Inc. v. Soboski, 210 Pa. Super. 304, 309, 232 A.2d 216, 219 (1967):

"On a motion for a directed verdict, the facts must be considered in the light most favorable to the party against whom the motion is made. '. . . [T]he court must accept as true all the evidence of that party which supports his contention . . . and must reject all the adverse testimony of the party seeking a directed verdict.' Lott v. Guiden, 205 Pa. Super. 519, 523, 211 A.2d 72, 74 (1965)."

Additionally, "[a]s to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court's action '"absent an abuse of discretion or error of law which controlled the outcome of the case."'" (Citations omitted) McDevitt v. Terminal Warehouse Co., 304 Pa. Super. , , 450 A.2d 991, 993 (1982).

In light of the preceding standards, our review of the facts, which are not in dispute, reveal the following: On

[ 303 Pa. Super. Page 348]

July 11, 1973, appellant purchased sixty acres of farmland, upon which was situated a single family dwelling, from Nancy E. Wunderly. Thereafter, by deed dated August 15, 1975, appellant conveyed 16 acres of the property to Riverview Park Associates -- this entity was a limited partnership of which appellant was its general partner. By the end of 1976, appellant had erected a 168-unit apartment complex on the acreage owned by Riverview Park Associates. The site consisted of ten separate buildings, which were made up of one and two-bedroom apartments. To regress a bit, back in the fall of 1974, appellant had requested Peoples Natural Gas (PNG) to provide gas service to the proposed construction. In January, 1975, PNG notified appellant that it was prohibited by Orders of the Public Utility Commission (PUC), issued at PUC Investigation Docket No. 124, from providing him with the requested gas service. The Order in question, which was promulgated to deal with a shortage of natural gas in this Commonwealth, provided:

"That every such gas utility is hereby prohibited from entering into any contract for serving gas to any gas-burning equipment after February 15, 1972, unless either (a) the most recent report submitted pursuant to paragraphs 1 and 2 shows that in every year covered by the report such gas-burning equipment can be supplied without causing annual or peak day deliveries to exceed annual or peak day supplies, or (b) the contract for serving the gas-burning equipment expressly provides that such service may be curtailed, interrupted or terminated upon twenty-four hours notice, or (c) such gas-burning equipment is a replacement ...


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