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BURNHAM GAS COMPANY v. SHEARER (09/26/67)

decided: September 26, 1967.

BURNHAM GAS COMPANY, APPELLANT,
v.
SHEARER



Appeal from order of Court of Common Pleas of Crawford County, Nov. T., 1964, No. 1, in case of Burnham Gas Company v. James I. Shearer and James Drilling Corporation.

COUNSEL

Paul D. Shafer, Jr., with him Thomas, Shafer, Walker, Dornhaffer & Swick, for appellant.

John V. Pepicelli, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 426 Pa. Page 425]

By an agreement dated January 13, 1964, Burnham Gas Company, Appellant, hereinafter referred to as "Burnham", assigned certain oil and gas leases in Crawford County to James I. Shearer. Shearer and James Drilling Corporation commenced drilling gas wells on the acreage covered by the leases. Subsequently, Burnham became dissatisfied with Shearer's operation and commenced an action in equity, seeking an injunction restraining Shearer and James Drilling from drilling wells to a certain level, contending that the January 13, 1964, agreement did not give appellees the right to drill to that level.

After a great deal of preliminary skirmishing, the chancellor filed an adjudication and decree nisi. Both parties filed exceptions, and the court en banc entered a final decree on December 27, 1965. Neither side appealed from the final decree.

Paragraph (1) of the final decree directed appellees to complete the drilling of a particular well within 30 days from the date "of the final determination of this matter". After entry of the final decree, the parties negotiated further, apparently to no avail, and on March 23, 1966, Burnham wrote to Shearer, indicating that in accordance with the final decree, the well mentioned in Paragraph (1) thereof should be completed by April 25, 1966.

On April 27, 1966, the well not having been completed, Burnham petitioned the court for an order preventing Shearer from drilling any further wells, inasmuch as he had failed to comply with Paragraph (1) of the final decree.

Appellees filed an answer, admitting their failure to complete the well, but alleging technical difficulties, bad weather, and similar matters which prevented compliance. The court heard testimony and, having decided

[ 426 Pa. Page 426]

    that appellees had proceeded with all due diligence, entered an order granting Shearer additional time to complete the disputed well. This appeal followed.

Appellant argues that the court erred in amending its final decree after the time for appeal had expired, and neither party had filed a bill of review. Appellant further contends that the court below erred in failing to consider ...


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