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PAVLICH ET UX. v. AMBROSIA COAL AND CONSTRUCTION COMPANY (01/07/71)

decided: January 7, 1971.

PAVLICH ET UX., APPELLANTS,
v.
AMBROSIA COAL AND CONSTRUCTION COMPANY, APPELLANT



Appeals from decree of Court of Common Pleas of Lawrence County, March T., 1966, No. 3, in case of Fabiean Pavlich et ux. v. Ambrosia Coal and Construction Company.

COUNSEL

Errol Fullerton, with him Morgan H. Sohn, Alfred Papa, and Reed, Sohn, Reed & Kunselman, for plaintiffs.

W. Walter Braham, with him Chris J. Mitsos and Glenn McCracken, Jr., for defendant.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell would affirm in Appeal 260 and reverse in Appeal 252. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Jones

[ 441 Pa. Page 211]

We are presented here with cross appeals taken by the Pavlichs ("lessors" and appellants in Appeal 252) and by Ambrosia Coal and Construction Company ("lessee" and appellant in Appeal 260) from a final decree refusing five of the lessors' causes of action but

[ 441 Pa. Page 212]

    granting their sixth. We shall discuss each appeal separately.

Number 252, March Term, 1970

Subject to a written "lease" which was subsequently revised and partially sublet, the lessors permitted the removal, by the lessee, from their property of all limestone, stripping coal, fire clay, shale and flint clay on a royalty basis. However, in regard to these royalties, the lease pertinently provides: "[l]essee agrees to strip mine, quarry and remove from said leased premises all [the minerals noted above] provided said items are marketable." (Emphasis added) The disagreement between the parties basically concerns the lessee's refusal to pay royalties on the minerals other than limestone since the sale of these minerals would not prove profitable.*fn1

Specifically, the issue presented in the appeal is whether the Chancellor erred in construing the lease in light of parol evidence equating "marketable" with "profitable", thereby relieving the lessee of its royalty obligations since the sale of these additional minerals would prove unprofitable.

Addressing this precise issue, the lessors contend: (1) "marketable" is an unambiguous word of art not requiring the consideration of any parol evidence; (2) that allowing testimony of prior negotiations varies the terms of ...


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