No. 649 Pittsburgh, 1982, Appeal from the Judgment entered May 27, 1982, Court of Common Pleas, Allegheny County, Civil Division, No. GD79-9537.
Peter F. Marvin, Philadelphia, for appellant.
Thomas M. Mulroy, Pittsburgh, for appellees.
Rowley, Johnson and Popovich, JJ.
[ 330 Pa. Super. Page 309]
This is an appeal by appellant, American Refining Group, Inc., from the judgment entered on May 27, 1982. We affirm.
[ 330 Pa. Super. Page 310]
Appellees, RAD Services, Inc. and Big Bear Oil Co., Inc., operated retail gasoline stations, and they purchased their product from the appellant, who is a wholesale distributor of petroleum products. The appellees began to experience substantial unexplained inventory shortages, and each undertook numerous steps to ascertain their cause. The time period in which the appellees received an insufficient amount of gas was from September 1977 to October 1978. After investigating a number of possibilities, the appellees determined these shortages were due to a defect in the metering device employed by the appellant at its storage terminal in measuring the amount of gas being loaded into the appellees' trucks.
Consequently, the appellees initiated an assumpsit action against appellant to be reimbursed for the amount of gasoline they paid for but never received. A jury trial was held, and the jury returned a verdict on December 7, 1981 in the appellees' favor. The trial judge denied appellant's motions for a new trial and judgment n.o.v. It is from this denial that appellant presently appeals.
Two contentions are presented for our consideration. First, appellant argues the trial court improperly refused its motion for a judgment n.o.v. because, as a matter of law, the appellees had not notified the appellant within a reasonable time of the gasoline terminal metering defect. Therefore, appellant argues the appellees should have been barred from any recovery.
Our scope of review of the lower court's ruling on a motion for judgment n.o.v. was comprehensively enunciated in Eldridge v. Melcher, 226 Pa. Super. 381, 385-86, 313 A.2d 750, 753 (1973):
A judgment n.o.v. is the directing of a verdict in favor of the losing party, despite a verdict to the contrary. It may only be entered in a clear case where the evidence is insufficient to sustain a verdict against him . . . . Judgment n.o.v. is inappropriate if the evidence on a material point presented an issue of fact ...