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COOPER-BESSEMER COMPANY v. AMBROSIA COAL AND CONSTRUCTION COMPANY (05/25/72)

decided: May 25, 1972.

COOPER-BESSEMER COMPANY
v.
AMBROSIA COAL AND CONSTRUCTION COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Mercer County, March T., 1969, No. 2, in case of Cooper-Bessemer Company, a division of Cooper Industries, Inc. v. Ambrosia Coal and Construction Company.

COUNSEL

Richard J. Audino, with him Rea & Audino, for appellant.

David W. Ketler, with him Wherry and Ketler, for appellee.

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

Author: O'brien

[ 447 Pa. Page 522]

Appellee, Cooper-Bessemer Company (Cooper), the owner of a private airport, filed a complaint in equity seeking an injunction to restrain appellant, Ambrosia

[ 447 Pa. Page 523]

Coal and Construction Company (Ambrosia), which owned a strip mine adjacent to Cooper's airport, from maintaining certain obstructions near the airport which Cooper alleged were in violation of several sections of the Aeronautical Code, Act of July 27, 1953, P. L. 641, § 1, as amended, 2 P.S. § 1458, and of The Penal Code, Act of June 24, 1939, P. L. 872, § 656, 18 P.S. § 4656.

After the complaint was filed, appellant preliminarily objected that the trial court did not have jurisdiction to entertain an equity action dealing with airport obstructions because the federal government had pre-empted the field. After argument and the filing of briefs, the trial court dismissed the preliminary objections by decree dated May 2, 1969. No appeal was taken from that decree.

Thereafter, the parties to this action entered into negotiations which resulted in a stipulation providing for a consent decree allowing time for Ambrosia to conclude its operations and remove the obstructions from a specified area constituting the approach and departure path of the runway to Cooper's airport. In a consent decree entered October 20, 1969, the period for compliance was extended to November 22, 1969.

On April 6, 1970, Cooper filed a petition alleging Ambrosia's noncompliance with the consent decree and stipulation. After a hearing on May 6, 1970, the trial court found noncompliance as a fact and entered a decree for the payment of liquidated damages of $18,500, being one hundred eighty-five days of noncompliance at the agreed rate of $100 per day. Ambrosia's exceptions were denied, a final decree was entered and Ambrosia appealed.

Ambrosia first argues that the court lacked jurisdiction to enforce the stipulation. The Penal Code and the Aeronautical Code are the statutory sources through which the ...


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