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CAROL M. WRIGHT & CLARICE WRIGHT v. BUCKEYE COAL COMPANY (08/21/81)

filed: August 21, 1981.

CAROL M. WRIGHT & CLARICE WRIGHT, HIS WIFE, STEVE M. LASKOSKY, MIKE WATONA & MARTINA WATONA, HIS WIFE, J. B. MILLER & IRENE E. MILLER, HIS WIFE, AND ANGELO DELUCA & MARY DELUCA, HIS WIFE, APPELLANTS AT 353,
v.
THE BUCKEYE COAL COMPANY, APPELLANTS AT 284



No. 284 Pittsburgh, 1980, No. 353 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Greene County, Civil Action at Nos, 588, 589, 590, 591 & 592.

COUNSEL

Henry Ingram, Pittsburgh, for appellant at No. 284 and for appellee at No. 353.

Simon B. John, Uniontown, for appellants at No. 353 and for appellees at No. 284.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 290 Pa. Super. Page 232]

This is an equity action by the owners of five private homes to recover for damage they say was done to their

[ 290 Pa. Super. Page 233]

    home by subsidence incident to coal mining. The chancellor awarded damages. The home owners have appealed, claiming that the damages were inadequate. The coal company has also appealed, claiming that its liability was not proved, but that if liability was proved, damages were not. We have concluded that liability was proved. However, we are unable to determine from the chancellor's findings on what basis he computed damages. Accordingly, we shall remand for further proceedings. For convenience, we shall speak as though only one appeal had been taken, and refer to the coal company as appellant and to the home owners as appellees.

Appellees' complaints were filed February 1, 1974. They allege that appellant violated appellees' rights under the Bituminous Mine Subsidence and Land Conservation Act of 1966, Act of April 27, 1966, P.L. 31 §§ 1-19, 52 P.S. § 1406.1 et seq.*fn1 On April 3, 1974, appellant filed preliminary objections challenging the jurisdiction of the lower court on the theory that the Act of 1966 provided appellees with an exclusive administrative remedy. On September 6, 1974, the lower court dismissed the preliminary objections, and appellant appealed to the Supreme Court. The Supreme Court affirmed, with costs on appellant. DeLuca v. Buckeye Coal Co., 463 Pa. 513, 345 A.2d 637 (1975). The actions were consolidated and tried on May 7 and 18, July 26, and August 2, 3, and 4, 1977. R.2a. On July 7, 1978, the chancellor issued an opinion holding appellant liable for subsidence

[ 290 Pa. Super. Page 234]

    damages, but ordering a further hearing on the amount of damages. On March 22, 1979, after the hearing, the chancellor issued a second opinion, with findings of fact and conclusions of law, awarding damages. Appellant filed exceptions, which were dismissed, and on February 27, 1980, the decree nisi was made final.

Appellees' properties are within 200 feet of Route 88, in Cumberland Township, Greene County, and are over a portion of appellant's Nemacolin Coal Mine. Def. Exhibit # 9. The Nemacolin Mine was first mined in the late 1920s, when several passageways, subpassageways, and cross-cuts were made in a seam of coal about 400 feet below the surface. After this work, mining stopped. Late in 1968, however, appellant notified appellees that it intended to resume mining. This second stage of mining, which was called "retreat mining," consisted of the systematic removal of coal from the coal "pillars" that remained after the development work. It started January 1, 1970. Appellees contend that when appellant removed the coal from the pillars, sometime after January 1, it either upset or removed too much coal, leaving the overlying stratum with insufficient support. See generally, for a discussion of development and retreat mining, Safety and Management Problems in Mine Operations in Pennsylvania, 52 P.S. XIX-XX.

The chancellor's findings of fact and conclusions of law were, issued on March 2, 1979, were as follows:

FINDINGS OF FACT

1. The Nemacolin Mine is an underground coal mine located in Cumberland Township, Greene County, Pennsylvania, and at the time was owned and operated by the Buckeye Coal Company.

2. The common mining practice of the mine is to cut sixteen to seventeen foot wide entries through the Pittsburgh Coal vein on ninety five foot centers.

3. All five of the plaintiffs' homes are located above the mine, at a place in the mine identified as Six Right off Two North, approaching the 118 Road Section.

[ 290 Pa. Super. Page 2354]

. The area was initially developed in 1928 and 1929, by entries driven twelve feet wide, and 5 1/2 to 6 feet tall, on 100 foot centers, ...


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