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BURNHAM COAL COMPANY v. PBS COALS (03/01/82)

decided: March 1, 1982.

BURNHAM COAL COMPANY, A PENNSYLVANIA CORPORATION ET AL., PETITIONERS
v.
PBS COALS, INC., A PENNSYLVANIA CORPORATION ET AL., RESPONDENTS



Original jurisdiction in case of Burnham Coal Company and Twilight Industries, A Division of U.S. Natural Resources, Inc. v. PBS Coals, Inc. and The Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

Thomas C. Reed, with him Henry Ingram, Rose, Schmidt, Dixon & Hasley, for petitioners.

Donald T. Dulac, Jr., McClure and Watkins, P.C., for respondents.

Donald A. Brown, Assistant Counsel, with him, Douglas R. Blazey, Chief Counsel, for Department of Environmental Resources.

Judge Craig. Opinion by Judge Craig.

Author: Craig

[ 65 Pa. Commw. Page 87]

Burnham, a holder of mining property leases, and its affiliated corporation, Twilight, have filed this declaratory judgment action against the Pennsylvania Department of Environmental Resources (DER) and a subleaseholder, PBS, based upon a contract between Burnham and PBS under which PBS agreed to (a) accept the mining leases as they are, (b) seek transfer of Burnham's DER mining permits to it, (c) perform all of Burnham's lease undertakings, (d) assume full responsibility for compliance with all laws, and (e) indemnify and hold PBS harmless as to compliance with laws and all other claims.

As the specific relief sought, the petition asks for judicial declarations that:

(1) Burnham has no liability for any violations of the Clean Streams Law being assessed by DER, and that

[ 65 Pa. Commw. Page 88]

(2) PBS is liable for any and all conditions on the lands covered by the mining permits.

The issues raised by respondents' preliminary objections are:

1. As to DER's Assessment of Liability against Burnham and DER's withholding of permits from Twilight as well as from Burnham, must the petitioners first pursue their ...


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