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A & J SOLOMON WRECKING CO. v. RAYMOND COLLIERY CO. (03/20/70)

decided: March 20, 1970.

A & J SOLOMON WRECKING CO., INC., APPELLANT,
v.
RAYMOND COLLIERY CO., INC.



Appeal from decree of Court of Common Pleas of Lackawanna County, Nov. T., 1965, No. 8, in case of A & J Solomon Wrecking Co., Inc. v. Raymond Colliery Co., Inc. et al.

COUNSEL

William J. Oliver, with him Oliver, Price and Rhodes, for appellant.

James E. O'Brien, with him Kennedy, O'Brien & O'Brien, for appellees.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: O'brien

[ 437 Pa. Page 344]

The appellant is the assignee of Louis Cohen & Sons, purchaser under a written "Sales Order" dated January 18, 1962, of certain items and structures at the property known as the Powderly Breaker from the Glen Alden Corporation, owner of the property.

On February 2, 1962, Solomon entered on the property and began to dismantle and remove the various items designated in the Sales Order.

On August 25, 1964, Glen Alden Corporation sold its interest in the land and the remaining property to the appellee, Raymond Colliery Co., Inc. On April 16, 1965, a dispute arose between agents of Raymond and Solomon concerning removal of certain items known as "the cleaning plant" from the property. Appellees denied the cleaning plant was included in the sales order, appellant disagreed, claiming it owned the "cleaning plant." Because of the dispute, appellant's work was halted periodically until November 16, 1965, when a large earthen mound was constructed around the Breaker, which hindered appellant's entry thereto and removal of materials therefrom. Appellant was inside the mound but full-scale dismantling did not take place and shortly after appellant last worked at the Powderly Breaker, the property was entirely destroyed by fire.

Appellant brought an equity action seeking an injunction to stop the interference, which phase of the case was rendered moot by the fire, damages allegedly resulting from appellees' interference with his rights under the Sales Order, accounting for coal processed through the "cleaning plant" pursuant to an alleged

[ 437 Pa. Page 345]

    oral contract whereby appellees promised to pay $1 per ton for all coal processed through the plant, and seeking to recover damages for property removed by appellees from the property pursuant to an alleged oral contract.*fn1

The chancellor found that appellant had failed to prove that it was entitled to the "cleaning plant" under the Sales Order and, therefore, that the interference on the part of the appellees, in constructing an earthen wall so as to hinder access to the property, was justified. The chancellor also ruled that appellant, having failed to establish that it owned the "cleaning plant," had failed to establish an oral contract under which it was entitled to an accounting for coal processed through the "cleaning plant." As to the third count, the chancellor found that appellant had failed to prove what property was removed, what its value was, or any agreement to pay for property removed; accordingly, the complaint was dismissed.

Appellant's exceptions to the adjudication were dismissed by the court en banc and the decree nisi was entered as a ...


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