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CARMEN WILLIAMS v. VICTOR E. VESLEY AND MARGARET VESLEY (08/28/81)

filed: August 28, 1981.

CARMEN WILLIAMS, TRADING AND DOING BUSINESS AS C. W. COAL COMPANY,
v.
VICTOR E. VESLEY AND MARGARET VESLEY, HIS WIFE, APPELLANTS



No. 403 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Fayette County, at December Term, 1977, No. 267.

COUNSEL

Vincent J. Roskovensky, II, Uniontown, for appellants.

Gregg M. Rosen, Pittsburgh, for appellee.

Spaeth, Shertz and Montgomery, JJ.

Author: Montgomery

[ 290 Pa. Super. Page 193]

In late December, 1977, the Plaintiff-Appellee initiated an action to quiet title, requesting that the lower court declare an agreement concerning the mining of coal to be valid.*fn1

[ 290 Pa. Super. Page 194]

The agreement gave the Appellee the right to strip mine land owned by the Defendant-Appellants in Fayette County. The Appellants claimed that the Appellee had violated the terms of the agreement and lost any right to mine coal on their property. The lower court conducted a hearing and considered evidence in the matter, and found that the Appellee retained a right to mine on the Appellants' land. The Appellants filed exceptions which were dismissed by the lower court en banc, and the Appellants filed the instant appeal with our Court.

The record shows that on September 11, 1976, the Appellants entered into a coal lease granting the Appellee the right to conduct coal mining operations on the Appellants' property. The agreement was in a form prepared by the Appellee. As prepared, it set forth, inter alia, that: "The original term of this agreement is for a period of three (3) years, or, until all of said coal shall have been mined and removed therefrom. Testing operations shall begin as soon as practical; upon determination that coal can be profitably mined, such coal mining shall commence within thirty (30) days from the date of Permit issuance by the Commonwealth of Pennsylvania, Department of Natural Resources." At the time the agreement was executed, the Appellants insisted upon the insertion of the following language, as a separate paragraph in the agreement: "Coal mining shall commence within twelve months from the date of this agreement."

Within thirty days after the execution of the agreement, a mining contractor for the Appellee commenced exploratory drilling on the property. In early November, 1976, the Appellee's contacting miner submitted a permit application to the Pennsylvania Department of Environmental Resources. Subsequently, the Department was supplied with all requested technical data relating to its permit application

[ 290 Pa. Super. Page 195]

    review process. During 1977, after a considerable delay in action on the permit application by the Department of Environmental Resources, representatives of the Appellee traveled to Harrisburg to meet with representatives of the Department of Environmental Resources to attempt to promote action on their permit application. Finally, after further procedures by the Department of Environmental Resources, a permit was issued on October 28, 1977, which authorized the Appellee to mine the Appellants' property. On November 10, 1977 the Appellee's contract miner posted a bond, complying with all necessary prerequisites to commence mining. The Appellants however refused to allow the Appellee and his contract miner to commence mining. The Appellants based their position upon the claim that the Appellee had violated the provision of the agreement stating that mining should commence within twelve months from the date of the agreement, or no later than September 11, 1977.

The lower court, while recognizing that mining had not commenced within twelve months of the initial date of the agreement, nevertheless found that the Appellee retained an enforceable right to mine the Appellants' land. The lower court found that the clause concerning the commencement of mining within the initial twelve month period was inserted by the parties merely to prompt the Appellee to make every reasonable effort to commence mining at the earliest possible date. However, the lower court found that the clause was not sufficient to create a forfeiture of the Appellee's rights under the agreement when the commencement of such mining was the result of circumstances beyond the control of the Appellee, and occurred despite the ...


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