Appeal from the Order of the State Mining Commission in the Court of Common Pleas of Fayette County in case of In the Matter of the Petition of Lee F. Brownfield, Jr. for the Convening of the State Mining Commission, No. 609 December Term, 1974.
Donald J. McCormick, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
William M. Radcliffe, with him Ira B. Coldren, Jr., and Coldren & Coldren, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt.
[ 26 Pa. Commw. Page 310]
This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) from an order of the State Mining Commission (Commission) awarding damages to Lee F. Brownfield, Jr. for the taking of coal located underneath property owned by him in Fayette County.
Section 1 of the Act of June 1, 1933 (Act), P.L. 1409, as amended, 52 P.S. § 1501 provides, inter alia, as follows:
"Whenever the Commonwealth has heretofore acquired or may hereafter acquire lands, easements or right of ways underlaid by mineable coal, the State Mining Commission created in accordance with the provisions of this act upon application of the Commonwealth, the county or the municipality within which such lands, easements or right of ways are situated or the owner of the coal underlying such lands . . . is hereby empowered to determine, authorize, and direct the underlying or adjacent coal, if any, to be left in place for the purpose of furnishing vertical or lateral support to said land, easement or right of way, the underlying or adjacent coal, if any, which may be removed, and the material, if any, to be substituted for the coal so removed, together with the method and manner of placing such material in the mine workings, for the purpose of furnishing both vertical and lateral support to such land, easement or right of way and the party or parties by whom the expenses thereof shall be paid. . . . This commission shall have exclusive jurisdiction of the mining of coal under lands, easements and right of ways purchased, condemned or otherwise acquired by the Commonwealth and judicial powers to hear and determine all
[ 26 Pa. Commw. Page 311]
evidence which may be presented . . . to determine and assess damages, if any, for coal required by the said Commission to be left in place and benefits, if any, for improvements or betterments; to allocate among the parties in interest the cost of its proceedings as well as any work which it may order performed; and to enforce its orders and decrees through the court of common pleas of the county in which the lands, easements and right of ways purchased, condemned or otherwise acquired by the Commonwealth is situated. . . . All parties in interest shall have the same right of appeal from decisions, orders and decrees of the State Mining Commission, as now or hereafter provided for appeals from the decisions, orders and decrees of courts of common pleas. . . ."
Pursuant to this legislative authorization, Brownfield made an application to convene the State Mining Commission in Fayette County for the purpose of determining: (1) whether or not any coal underlying the condemned right of way across his property was required to be left in place, and unmined, for vertical and lateral support of the right of way; (2) the amount of coal, if any, required for this purpose; and (3) the damages suffered by him in the taking of that coal by PennDOT. The Commission held a hearing and determined thereafter: (1) that "there is (sic) 19.3 acres of mineable coal . . . underlying the premises taken by [PennDOT] which is needed for vertical and lateral support as set forth in Commonwealth Exhibit #1;"*fn1 (2) that "there is (sic) 8100 tons of
[ 26 Pa. Commw. Page 312]
coal per acre;" and (3) that "the petitioner [Brownfield] . . . is entitled to damages in the amount of $42,606.00." PennDOT has appealed from this award, arguing that the Commission's findings are ...