dissenting:
I must respectfully dissent from the majority, which characterizes appellants’ claim as one for loss of good will. I view appellants’ claim as a request for lost profits occasioned by appellee’s delivery of an unmerchantable product. I am of the opinion that the question of damages should have been permitted to go to the jury. Accordingly, the demurrer should not have been granted.
In support of my position, I would compare appellants’ situation to that of the plaintiff in Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). In that case, the defendant sold defective cattle feed to the plaintiff, which caused miscarriages in cows and sterility in bulls. Plaintiff raised the cattle for breeding purposes, and therefore, claimed as damages, the profits lost as a result of the diminution in value of cattle actually affected by the defective feed.
In allowing the damages the court said:
It does not matter whether the cattle lost value because they, in fact, could not reproduce, or because no one in the community would buy them out of a reasonable fear that the stilbestrol they ate might cause reproductive disorders. For, if either be true, it can fairly be said that Appellant’s property has been damaged due to the feed sold by Appellees.
Id., 432 Pa. at 236-37, 246 A.2d at 857.
In differentiating between lost profits and loss of good will, the court in Kassab stated:
*581Recovery for the diminution in value of specific property caused by a refusal of the buying community to assign a market value to that property equal to what it was worth prior to its being affected by the seller’s defective product must not be confused with recovery for loss of good will to business caused by community knowledge that the seller’s defective products were once used or sold by that business. Since the loss of good will cannot be measured by the diminution in value of any specific property belonging to the aggrieved buyer, unlike the present case, such good will loss is too speculative and hence not a compensable element of damages under such a 2-715 of the Code, (citations omitted).
Id. at 237 n. 12, 246 A.2d at 857 n. 12.
Likewise, in the case sub judice, appellants were unable to sell as much gasoline when it became known publicly that the gasoline was defective. During that period, sales plummeted. Appellants are only seeking the profits lost during the period when the defective gasoline was used. They do not claim that good will was lost such that they were unable to sell non-defective gasoline.
While the majority labels appellants’ loss as “speculative”, I would disagree. Although calculating damages may have been a problem in the past, and in certain cases, may still be a problem, I cannot see that it presents a problem here. Even in an instance where damages were denied as being too speculative, the court recognized that the future could bring considerable changes. In Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d. Cir.1970), the court stated:
This is not to say we approve the Pennsylvania view or believe it will be the Pennsylvania position in the future. Considering the advances made in techniques of market analysis and the use of highly sophisticated computers it may be that lost profits of this nature are no more speculative than lost profits from the destruction of a factor or hotel, and perhaps Pennsylvania will reconsider the reason for its rule in a future case. We are none*582theless required to apply the current rule in Pennsylvania.
Id. at 1227-28.
Further, a comparison of the business profits before and after the delivery of the unmerchantable gasoline should prove to be enlightening. See, Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987).
Thus, I would, as the court did in Kassab, supra, remand the cause to afford appellants an opportunity to demonstrate the amount of damages sustained as a result of appellee’s delivery of an unmerchantable product.