March Term, 1978, No. 191, Appeal from the Orders of the Court of Common Pleas, Civil Action-Law, Clearfield County, at No. 75-16, Dated January 19, 1977 and February 10, 1977, Granting the Motions for Summary Judgments of Appellees Clearfield Bank and Trust Company, George Scott, Clifford Johnston, Ralph Thompson and Pike Coal Company; Affirmed By the Superior Court of Pennsylvania, Western District, April Term, 1977, Nos. 484 and 622.
John M. Elliott, Constance B. Foster, Dilworth, Paxson, Kalish, Levy & Kauffman, Philadelphia, for Thompson Coal Co. and Leroy Thompson.
G. Donald Gerlach, Robert W. Watson, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for Clearfield Bank and Geo. Scott.
Richard C. Angino, Kenneth D. Hoch, Hurwitz, Klein, Benjamin & Angino, Harrisburg, for Clifford Johnston.
James L. Jubelirer, State College for Pike Coal Co. and Ralph Thompson.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion. Manderino, J., notes his dissent.
Appellants argue that the Court of Common Pleas of Clearfield County erred in granting defendant-appellees' motions for summary judgment, because, appellants allege,
there existed genuine issues of material fact as to each appellee. The Superior Court affirmed the order of the Court of Common Pleas in a per curiam order without an opinion. This Court granted review and after consideration of the briefs of the respective parties and oral argument, we share the view that the trial court reached the correct result.*fn1
Appellant, Leroy Thompson (Leroy) and appellee, Ralph S. Thompson (Ralph), are brothers who were formerly associated in the Thompson Coal Company until they parted company in October, 1965. At that time, Ralph left Thompson Coal and formed the Pike Coal Company. Both brothers desired to obtain ownership of the surface and subsurface rights in the tract of land known as the "Kreska Tract."*fn2 The surface rights were owned by Adolph Kreska. The coal and other mineral rights in the Kreska Tract were owned by Harry Boulton, Harold J. Boulton and Raymond J. Hess, each owning an undivided one-third interest. On May 15, 1965, Leroy leased the mining rights under the Kreska Tract from the three subsurface rights owners under a year-to-year lease which the parties agreed to extend to March 1, 1975.
In August of 1972, Adolph Kreska sold the surface rights to Ralph. Ralph began mining operations, but ceased these operations upon being informed by his attorney, Clifford Johnston, that he owned less than all of the rights in the Kreska Tract. Ralph thereafter began efforts designed to purchase the outstanding rights to the Kreska Tract. On August 27, 1974, George Scott, the surviving executor of the Estate of Harry Boulton, sold the estate's one-third interest in the mineral rights underlying the Kreska Tract to Ralph,
"Subject . . . to a lease of said mineral rights to Thompson Coal Company. . . ." On the same date, Clearfield Bank and Trust Company and George Scott, co-guardians for Harold J. Boulton, sold their ward's one-third interest in the mineral rights to Ralph subject to the lease of Thompson Coal Company. The interest of both former owners in the lease to Leroy and Thompson Coal was assigned to Ralph at the time of the conveyance of the mineral rights. On September 10, 1974, Raymond J. Hess leased his mineral rights under the Kreska Tract to Ralph and cancelled his lease with the Thompson Coal Company, the cancellation to be effective March 1, 1975. In the above manner, Ralph, trading as Pike Coal Company, became sole owner of the surface and two-thirds of the subsurface rights, and lessee of the remaining one-third of the subsurface rights subject to the lease rights held by Leroy and Thompson Coal.
Appellants Leroy and Thompson Coal Company filed a civil action against Ralph, Pike Coal Company, Clearfield Bank and Trust Company, George Scott and Clifford Johnston, alleging that the above appellees engaged in various acts constituting inter alia, negligence, conspiracy to defraud and tortious interference with contractual business relationships. The court of Common Pleas of Clearfield County granted a motion for summary judgment filed by Clearfield Bank and Trust Company, George Scott and Clifford Johnston as to the counts of negligence and tortious interference with business relationships, and granted summary judgment to Ralph, Pike Coal Company and Clifford Johnston on Count IV of the complaint which charged a conspiracy to defraud.*fn3
The underlying theme of appellants' contentions is that the summary judgments entered pursuant to Pennsylvania Rule of Civil Procedure 1035 were improper because there remained genuinely disputed issues of material fact in
each of these instances. Rule 1019 requires that the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Rule 1035 permits the entering of a summary judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is granted only in the clearest of cases, where the right is clear and free from doubt. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969); Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452 (1973). The moving party has the burden of proving the nonexistence of any genuine issue of fact. Kent v. Miller, 222 Pa. Super. 390, 294 A.2d 821 (1972); Moore v. Zimmerman, 221 Pa. Super. 359, 292 A.2d 458 (1972); Schacter v. Albert, ...