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HERZOG ET AL. v. WITCO CHEMICAL CORPORATION (04/20/72)

decided: April 20, 1972.

HERZOG ET AL., APPELLANTS,
v.
WITCO CHEMICAL CORPORATION



Appeal from decree of Court of Common Pleas of McKean County, Dec. T., 1970, No. 1, in case of Richard B. Herzog and Constance M. Herzog v. Witco Chemical Corporation, Kendall Refining Company Division.

COUNSEL

Anthony H. Chambers, with him Chambers and Crisman, for appellants.

Richard W. Mutzabaugh, with him Henry Graff and Mutzabaugh & Mutzabaugh, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 447 Pa. Page 203]

In December of 1963, appellants purchased oil and gas leases covering five contiguous parcels of land in McKean County. The oil and gas leases had been made at various times between 1898 and 1906 by the trustees of the Estate of William Bingham. The leases, unlike most leases for oil and gas rights, did not run for an indefinite period while oil or gas in commercial quantities was being produced. Instead, each of the leases was for a fixed term. Over the years, the leases were extended from time to time, so that when they were acquired by appellants, they had expiration dates at various times in 1969 and 1970.

The title of the Bingham Estate in all of the leases was purchased by Kendall Refining Company, now by merger Witco Chemical Corporation, Kendall Refining Company Division, appellee, by deed dated July 1, 1964. Thereafter, appellee notified appellants by letter that the leases as to three of the five contiguous parcels, which leases were scheduled by their terms to expire on November 1, 1969, and January 1, 1970, would not be extended or renewed, and requested that appellants remove their equipment and deliver up possession of

[ 447 Pa. Page 204]

    the parcels of land. Appellants failed and refused to accede to appellee's notification, and appellee filed a complaint in ejectment against appellants, seeking to recover possession of the three parcels involved.

The ejectment action was at issue in June of 1970 and awaiting hearing. Appellants, nevertheless, on November 2, 1970, filed a complaint in equity which sought a determination that appellee was estopped from requiring the termination of the involved leases because of certain alleged prior conduct by appellee, and an order requiring appellee to execute extensions of the existing leases or to execute new leases in a form generally used and acceptable in the oil and gas industry.

Appellee filed preliminary objections raising the pendency of the prior ejectment action, and further contending that a full, complete and adequate non-statutory remedy at law existed. The chancellor sustained the preliminary objections, and this appeal is from his decree dismissing the complaint.

Although appellants have always treated the five separate leaseholds as one parcel of land, there are in fact five separate leases involving five individual, although contiguous, parcels of land. Only three of those parcels are involved in the ejectment action commenced by appellee, while all five are involved in the equity action filed by appellants. We nevertheless conclude that the court below was correct in dismissing the complaint.

The parties to the two actions are identical, and the estoppel principle which appellants are seeking to establish as the basis for their right to equitable relief is equally available to them as a defense in the ejectment action. Should appellants establish in the ejectment action that appellee is ...


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