Appeals, Nos. 244 and 301, Jan. T., 1960, from order of Court of Common Pleas of Clearfield County, May T., 1959, No. 583, in case of William N. Bannard, 3rd et al. v. New York State Natural Gas Corporation. Appeal No. 244, order affirmed; appeal No. 301, order reversed.
John Sullivan, Deputy Attorney General, with him Raymond C. Miller, Deputy Attorney General, and Anne X. Alpern, Attorney General, for Pennsylvania Game Commission, appellant in No. 244 and appellee in No. 301.
Leroy F. Perry, with him F. Cortez Bell, Jr., G. Kirby Herrington, and Bell, Silberblatt and Swoope, for defendant corporation, appellant in No. 301 and appellee in No. 244.
Francis J. Carey, Jr., with him James J. Prendergast, and Townsend, Elliott & Munson, for plaintiffs, appellees in No. 244.
Before Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
On July 15, 1959, William N. Bannard and twenty-five (25) other persons (Blanchard heirs) instituted an action in ejectment in the Court of Common Pleas of Clearfield County against the New York State Natural Gas Corporation (Gas Corp.) for the purpose of ejecting the Gas Corp. from its possession of the gas rights under a 153 acre tract of land*fn1 in Clearfield County and for the recovery of damages for loss of profits from gas removed therefrom. Preliminary objections filed to the complaint by the Gas Corp. were finally overruled on March 10, 1960.*fn2
On August 27, 1959, the Pennsylvania Game Commission (Commission) petitioned to intervene in the ejectment proceeding. The petition alleged that the Gas Corp. was in possession of the gas rights as lessee of the Commission under a written lease dated March 7, 1957 (attached to the petition) and that the Commission desired to intervene "for the purpose of raising questions of jurisdiction." A rule was granted to show cause why the Commission should not be permitted to intervene and to this rule both the Gas Corp. and Blanchard heirs filed answers; the former admitted
the Commission's right "to intervene generally, as other parties litigant" but not for the "purpose of raising questions of jurisdiction", while the latter simply denied the right to intervene to question jurisdiction.
On October 12, 1959, the court, in a written opinion, refused the Commission's petition to intervene.*fn3 After reargument, the court on November 18, 1959 struck off its order of October 12, 1959 and permitted the Commission to intervene and become a party defendant under Pa. R.C.P. 2327(4) and directed that any exceptions thereto be argued on December 22, 1959. No exceptions were filed to this order.
On November 23, 1959, the Commission moved that the ejectment proceeding be held in abeyance until a pending proceeding before the Board of Property of the Commonwealth was completed.*fn4 This motion was never disposed of.
On December 18, 1959, the Commission filed preliminary objections to the ejectment complaint which maintained that the Clearfield County court lacked jurisdiction both over the person of the Commission, i.e., it was immune from suit, and over the subject matter, the latter inferentially on the ground that the Board of Property of the Commonwealth had exclusive jurisdiction ...