Harold R. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, for appellant.
C. Robert McCall, McCall & Krill, Waynesburg, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
This is an appeal from the dismissal of preliminary objections to six suits in equity challenging the jurisdiction of the Common Pleas Court. Herein we affirm the lower court.
Appellees, private homeowners, brought suit against appellant coal company alleging violation of their subsidence rights under the Bituminous Mine Subsidence Act of 1966. Act of April 27, 1966, P.L. 31, §§ 1-19, 52 P.S. § 1406.1 et seq. Appellees allege surface subsidence resulting from appellant's mining operations beneath their residences, and request the Court to enjoin continuing violations of the Act and to grant awards for money damages.*fn1
Appellant raises three arguments that the lower court lacked jurisdiction. It argues that the common pleas courts have no authority to award damages under the Act where appellees have not exhausted their mandatory and exclusive administrative remedy provided by the Act; that the Commonwealth is an indispensable party to the suits; and that appellees have not alleged that their homes were in existence prior to the effective date of the Act in order to afford them the absolute right to support provided by it for enumerated structures in existence prior thereto.
Appellant urges us to construe the administrative remedy provided against a permit holder by the Act as exclusive. Section 1406.6 of the Act, in the alternative, provides for the furnishing of evidence to the Department
of Environmental Resources of satisfaction of private claims for subsidence damage or for the posting of a bond upon which the Attorney General shall enter suit and collect "such amount as may be necessary to redress or repair the damage occasioned by such violation, together with the costs of said proceedings." In addition, however, Section 1406.13 states:
"The courts of common pleas shall have the power to award injunctions to prevent violations of this act and otherwise to provide for its enforcement upon suit brought by the Attorney General of Pennsylvania or the county commissioners of any county, the mayor of any city, borough or incorporated town, or the board of township commissioners or supervisors of any township in which the mining of bituminous coal is conducted, or upon the suit of any property owner affected by such bituminous coal mining, without the necessity of posting a bond on application for a permanent injunction, but a bond shall be required on the granting of a temporary restraining order." (Emphasis added).
Historically, the several acts passed by the Legislature in the past to accommodate the interests of the mining industry and to protect the rights of the surface users have expressly given private persons so protected the right to bring suit in the first instance. In Mahon v. Pennsylvania Coal Company, 274 Pa. 489, 118 A. 491, rev'd on other grounds, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), this Court held that private persons properly could bring suit for injunctive relief as provided by the Act of 1921, known as the Kohler Act. Act of May 27, 1921, P.L. 1198, §§ 1-11, 52 P.S. §§ 661-71. It was there decided that plaintiffs would bring suit as "persons with a special interest may have ...