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GILBERTON COAL COMPANY v. SCHUSTER (03/23/61)

March 23, 1961

GILBERTON COAL COMPANY
v.
SCHUSTER, APPELLANT.



Appeal, No. 145, Jan. T., 1961, from order of Court of Common Pleas of Schuylkill County, July T., 1959, No. 361, in case of Gilberton Coal Company v. Vincent J. Schuster and Frederick J. Schuster, trading as Clinton Contracting Company. Order reversed.

COUNSEL

Thomas D. McBride, with him Victor Wright, George I. Puhak, W. J. Krencewicz, and McBride, Von Moschzisker & Bradley, for appellants.

Ralph M. Bashore, with him John J. Curran, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 403 Pa. Page 227]

OPINION BY MR. JUSTICE EAGEN.

This is an appeal from an order in the court below refusing to strike from the record a judgment, entered under a warrant of attorney, in an amicable action of ejectment.

"A rule to strike off a judgment is in the nature of a demurrer directed to defects in the record. If the record is self-sustaining, the judgment cannot be stricken": Lipshutz v. Plawa, 393 Pa. 268, 271, 141 A.2d 266 (1958).

The record discloses that the judgment-plaintiff, the Gilberton Coal Company, entered into a written

[ 403 Pa. Page 228]

    agreement with the City of Philadelphia, Trustee under the will of Stephen Girard, deceased, wherein the plaintiff, in consideration of payment of specified royalty payments, was given "the exclusive license, right and privilege of carrying away the material contained" in certain refuse banks located in Shenandoah Borough in Schuylkill County. The refuse, or calm, was a resulting deposit from the process of first mining of coal, and contained valuable coal recovery. The license extended for a period of five years, with the right of renewal for five successive one-year terms.

Subsequently, the plaintiff entered into a written agreement with the defendants, Vincent J. Schuster and Frederick J. Schuster t/a Clinton Contracting Company, under the terms of which the defendants undertook to clean, wash, prepare, process and size, the coal recovered from the refuse or culm banks, and deliver it to the plaintiff for sale. This contract contained, inter alia, a warrant of attorney empowering an attorney to sign an agreement for the entry of an amicable action in ejectment and, to confess judgment in ejectment against the defendants. Following an alleged breach of the contract by the defendants, an amicable action and confession of judgment was entered of record, and a writ of habere facias possessionem issued. It is the legality of this judgment that is now questioned.

The above facts manifest that the plaintiff is not vested with such an interest in land which must necessarily form the basis of an adverse action in ejectment. Such an action is one in which possessory titles to corporeal hereditaments are adjudicated. It lies to gain possession of real property: Dice v. Reese, 342 Pa. 379, 21 A.2d 89 (1941). The plaintiff's title, or right of possession, is essentially grounded upon the ...


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