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WINDBER CONSTRUCTION COMPANY v. COLEMAN (03/18/58)

March 18, 1958

WINDBER CONSTRUCTION COMPANY, INC.
v.
COLEMAN, APPELLANT.



Appeal, No. 155, April T., 1957, from order of Court of Common Pleas of Somerset County, Continuance Docket, 1956, No. 796, in case of The Windber Construction Company, Inc. v. Paul Coleman, Jr. Order reversed.

COUNSEL

Leland W. Walker, with him Walker and Kimmel, for appellant.

Taylor B. Coffroth, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Watkins

[ 185 Pa. Super. Page 651]

OPINION BY WATKINS, J.

This is an appeal from the refusal of the court below to open a judgment entered by confession for minimum royalty under the terms of a coal mining lease.

The lease in question was not expertly drawn but was reduced to writing by the appellee and executed by both parties on December 3, 1954. It described the vein, subject to the agreement, and provided for a royalty of 50› per ton for coal removed and for a minimum royalty of $100 per month, payments to begin December 6, 1954.

Lessee was to "excavate, mine and remove all merchantable, strippable coal that can be practicable, economically and profitable strip-mine ... from the tract of land above mentioned." Lessee was to carry on "his mining operations in accordance with the laws of the Commonwealth of Pennsylvania pertaining to stripmining."

The appellant entered into possession of the land and commenced mining in January, 1955 and continued this operation until September, 1955, when he moved to an adjoining tract. All royalties due were paid up to and including coal mined in September, 1955. No royalties have been paid since and no coal mined on the tract since that date. In July, 1956, appellee entered a confession of judgment under the agreement for alleged minimum royalty due from October, 1955 to and including May of 1956 at the minimum

[ 185 Pa. Super. Page 652]

    royalty rate of $100 per month, which together with counsel fees and costs amounted to a judgment of Eight Hundred Fifty-eight ( $858) Dollars.

The only question in dispute is as to when and under what conditions the agreement and its accompanying duty to pay ...


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