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RICHARD D. MASE v. COMMONWEALTH PENNSYLVANIA (10/04/79)

decided: October 4, 1979.

RICHARD D. MASE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Original Jurisdiction in case of Richard D. Mase v. Commonwealth of Pennsylvania.

COUNSEL

Leslie B. Handler, with him Handler and Wiener, for petitioner.

John W. Carroll, Assistant Attorney General, for respondent.

Judges Blatt, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 46 Pa. Commw. Page 333]

Petitioner Richard Mase initiated this action by filing a petition for declaratory judgment in this Court, naming only the Commonwealth of Pennsylvania as respondent. Before learning that this Court had determined to treat the action as a petition for review, the Commonwealth, through the Department of Environmental Resources, filed an answer to the original petition; upon learning of the court's determination, the respondent then filed preliminary objections to the petition, which objections are now before us.

Petitioner alleges that he is the lessee of certain mineral rights in lands held in fee by the Commonwealth subject to a prior reservation of those rights. He particularly alleges that he holds the right to extract coal from those lands by the process of stripmining, and further that the Commonwealth contends he does not have such a mining right.

The preliminary objections filed by the Commonwealth are several: They address the jurisdiction of this Court, the sovereign immunity of the Commonwealth from suits for declaratory relief relating to the construction of deeds, the sufficiency of the averments in the petition, and a question of joinder of parties.

The Commonwealth bases its jurisdictional objection on the view that this claim is within the exclusive embrace of the Commonwealth's Board of Property (board).

Because that jurisdictional question is dispositive, we need not address the remaining objections.

It is well settled that a claim such as petitioner alleges, i.e., the right to extract coal, minerals, or the like from the land of another, is itself an interest in land. This doctrine has not been ambiguous. In Shenandoah Borough v. City of Philadelphia, 367 Pa. 180, 186,

[ 46 Pa. Commw. Page 33479]

A.2d 433, 436 (1951), Mr. Justice Bell, for the ...


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