Appeal from judgment of Court of Common Pleas of Westmoreland County, July T., 1961, No. 208, in case of Dorothy Volpe v. Atlantic Crushed Coke Company.
R. Herbert Buchman, for appellant.
Christ. C. Walthour, Jr., with him Kunkle, Walthour & Garland, for appellee.
Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Montgomery, J. Wright, J., would affirm the judgment below.
[ 208 Pa. Super. Page 12]
This appeal questions the propriety of the lower court's action in entering a compulsory non-suit at the completion of plaintiff's case, and subsequently a judgment for the defendant.
The action is in trespass by the owner of real estate situate in Derry Township, Westmoreland County, Pennsylvania, seeking treble damages for the unlawful mining, removal and appropriation of coal by the defendant, and is based on the Act of June 24, 1939, P. L. 872, § 812, 18 P.S. § 4812, which provides:
[ 208 Pa. Super. Page 13]
"Whoever mines or digs out any coal, iron or other minerals, knowing the same to be upon the lands of another, without the consent of the owner, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding one (1) year, or both.
"The person so offending shall be further liable to pay to the owner double the value of the coal, iron or other materials so mined, dug out, or removed, or in case of the conversion of the same to the use of such offender, treble the value thereof, to be recovered, with costs of suit, by action of trespass or trover as the case may be. . . ."
This statute has been held highly penal both in its criminal and civil aspects and therefore must be strictly construed. Rhoads v. Quemahoning Coal Company, 238 Pa. 283, 86 A. 273 (1913), which case is based on the Act of May 8, 1876, P. L. 142, which was similar to the Act of 1939.
Defendant's answer to the complaint denied that it had unlawfully entered into the tract of coal owned by the plaintiff and further denied that it had unlawfully removed therefrom the amount of coal which plaintiff claimed had been removed, to wit, 3,696 tons more or less. It further denied that it had unlawfully appropriated to its use such coal, and under the heading, "New Matter", alleged that the husband of the plaintiff, Frank Volpe, then an owner with the plaintiff as tenants by the entireties of said property had agreed to permit the defendant to mine and remove any coal that it desired in consideration ". . . for the privilege of depositing overburden from the land of Frank Volpe and Dorothy Volpe on the land ...