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NANCY T. SMITH v. BENJAMIN COAL COMPANY (06/27/80)

filed: June 27, 1980.

NANCY T. SMITH, APPELLANT,
v.
BENJAMIN COAL COMPANY, INC., V. R. EDWARD FERRARO



No. 271 APRIL TERM, 1979, Appeal from the Order of the Court of Common Pleas of Jefferson County, at No. 306 of 1976, Civil Action.

COUNSEL

Robert M. Hanak, Reynoldsville, for appellant.

F. Cortez Bell, Jr., Clearfield, for Benjamin Coal, appellee.

David L. Young, Brockway, for Ferraro, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 279 Pa. Super. Page 85]

Appellant, the owner of coal rights, brought an action in Equity to enjoin the strip-mining of her coal by defendant Benjamin Coal Company, and to recover damages for coal already removed by defendant. Mr. R. Edward Ferraro claimed ownership of the coal and leased the coal to Benjamin but "only to the extent that . . . LESSOR owns and may lease the same". Mr. Ferraro was permitted to intervene in the case as an additional defendant.

Trial was bifurcated as to the issues of ownership and damages. The ownership issue was resolved in favor of appellant by stipulation of the parties after a survey was made of the surface. Further hearing was held before the Chancellor on the amount of damages to be awarded to appellant. The court awarded damages in the amount of $57,381.15 ($1.50 times 38,254.1 tons), plus compensation for delay in payment (at the rate of 6%); however, the court refused to award punitive or exemplary damages, on the principal ground that such damages are not recoverable in an action in equity. The case is before us on appeal from the Order of February 20, 1979, with appellant challenging the standard used by the lower court to measure the damages, and challenging the adequacy of the award.

The lower court has made the following findings:

1. That the plaintiff owned the coal;

2. That Ferraro claimed to own the coal pursuant to a deed from the Treasurer of Jefferson County;

3. That one James Wilson owned the surface rights;

4. That Benjamin was informed by Wilson that Wilson thought plaintiff owned the coal;

[ 279 Pa. Super. Page 865]

. That Benjamin contacted plaintiff in October 1975 about leasing the coal, and that plaintiff asserted ownership but was not ...


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