No. 58 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Clearfield County at No. 79-3386-CD.
Anthony S. Guido, DuBois, for appellants.
Carl A. Belin, Jr., Clearfield, for appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 300 Pa. Super. Page 399]
The appellants in this case, Andrew Woytek and Helen Woytek were the owners of real estate in Clearfield County, Pennsylvania. In 1973 the appellants leased some two hundred acres of land to Benjamin Coal Company, the appellee herein, to be used for coal mining. The term of the lease was for three years or until exhaustion of the coal "whichever event shall last occur." Paragraph Eighth of the lease, which was on a printed form, provided as follows:
EIGHTH: The Lessee agrees that upon completion of mining operations it will restore the leased premises in the manner required by the Pennsylvania Bituminous Coal Open Pit Mining Conservation Act then in force.
The agreement also provided in paragraph Twelfth as follows:
TWELFTH: The Lessee does further agrees that after termination of this lease for the purpose of backfilling and planting in compliance with the mining laws of the State of Pennsylvania, tree planting would be of the species of hybrid poplar or hardwood if soil samples are compatible with such species and if such species are available from the State Nursery of the Department of Forest & Waters of the Commonwealth of Pennsylvania.
After the lease expired the appellee attempted to restore the land and planted various trees. The appellee was advised by the Director of the Bureau of Surface Mine Reclamation of the Commonwealth of Pennsylvania that backfilling, leveling and planting had been accomplished in accordance with the Surface Mining Conservation and Reclamation Act. The appellants were not satisfied that the land had been properly restored or new trees planted in accordance
[ 300 Pa. Super. Page 400]
with the lease and in 1979 commenced an action in assumpsit against the appellee in the court below. The appellee filed a motion for summary judgment on the grounds that the Commonwealth of Pennsylvania, Department of Environmental Resources, had exclusive jurisdiction. The court below in an order by Reilly, Jr., J. granted the motion and summary judgment was entered in favor of the appellee.
The court below found that the lease involved merely required the appellee to comply with the Surface Mining Conservation and Reclamation Act, Act of November 30, 1971, P.L. 554, No. 147, § 1 et seq., 52 P.S. § 1396.2.*fn1 The court decided that the Department of Environmental Resources has exclusive jurisdiction relying on ...