Appeal, No. 121, Jan. T., 1963, from judgment of Court of Common Pleas of Schuylkill County, May T., 1961, No. 413, in case of Vincent J. Schuster and Frederick J. Schuster, trading as Clinton Contracting Company, v. Gilberton Coal Company. Appeal dismissed.
Thomas D. McBride, with him George I. Puhak, William J. Krencewicz, Alan J. Davis, Howard Gittis, and Wolf, Block, Schorr & Solis-Cohen, for appellants.
Lewis Weinstock, with him Joseph G. Manta, Ralph M. Bashore, and LaBrum & Doak, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
This appeal arises from an order of the Court of Common Pleas of Schuylkill County which sustained a demurrer to appellants' amended complaint, denied leave to amend, and entered judgment for appellee. Thus, for purposes of this appeal, every well pleaded fact in the amended complaint must be considered as admitted. Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959); see Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council, 411 Pa. 585, 192 A.2d 378 (1963).
Appellee, Gilberton Coal Company (Gilberton) possesses the exclusive license to carry away material contained in certain culm banks located in Schuylkill County. Appellants, Vincent J. and Frederick J. Schuster, trading as Clinton Contracting Company (Clinton), entered into a written contract with Gilberton on April 4, 1957, under which Clinton acquired the right to prepare, clean, wash and size all the coal contained in those banks. Gilberton was obligated to sell the coal, and Clinton was to receive the gross sales price of the coal, less certain deductions and a royalty of forty cents per ton payable to Gilberton. Clinton also undertook to construct a cleaning plant and weightometer and to extinguish as quickly as possible any fire on the bank. Failure to act promptly against fire would be cause for forfeiture.
On July 18, 1957, a fire broke out within the bank, which rendered hazardous any attempt to erect the cleaning plant and to remove the coal as agreed. Thereafter, John W. Rich, vice-president of Gilberton, orally waived the construction of the plant until the fire would be extinguished and agreed that Clinton might sell coal "run of the bank" (a removal technique different from that originally agreed upon) for a royalty of forty cents per ton.
In April, 1961, Clinton filed the original complaint in this case, alleging breach only of the written contract in that Gilberton had prevented Clinton from complying with the terms of that contract and had sold coal for its own profit in violation of the written agreement. Three million dollars was sought in damages. The court below sustained preliminary objections in the nature of a demurrer on the ground that Clinton had failed to allege performance of the contract, and the court granted leave to amend. In the amended complaint, which is presently before us, Clinton alleged that the oral agreement between it and Gilberton had excused it from performance of various duties under the written contract and that Gilberton had since prevented Clinton from performing under the terms of the oral agreement. Again, Gilberton demurred. The court below sustained the demurrer, ruling that the averment of the oral contract lacked sufficient specificity, that Clinton had failed to allege consideration for the oral agreement, and that the oral contract violated the Statute of Frauds. Leave to amend was denied, judgment was entered for Gilberton, and, on December 24, 1962, Clinton took this appeal.
On March 29, 1963, Clinton commenced a new action against Gilberton and John W. Rich on an agreement allegedly entered into on April 5, 1959, a written memorandum of which was transcribed in the handwriting of Rich and signed by him on behalf of Gilberton. The terms of this agreement were substantially similar to those in the oral agreement of 1957, except that the new agreement provided: "This agreement supersedes all other agreements." However, no specific mention was ...