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CHARLES A. HASSLER AND JEAN S. HASSLER v. COLUMBIA GAS TRANSMISSION CORPORATION (02/23/83)

argued: February 23, 1983.

CHARLES A. HASSLER AND JEAN S. HASSLER, HIS WIFE
v.
COLUMBIA GAS TRANSMISSION CORPORATION, APPELLANT



No. 177 Pittsburgh 1982, Appeal from the Judgment Entered in the Court of Common Pleas of Washington County - Civil at No. 7348 in Equity.

COUNSEL

Stephen D. Marriner, Jr., Washington, for appellant.

H. Terry Grimes, Waynesburg, for appellee.

Spaeth, Brosky and Montemuro, JJ. Brosky, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 318 Pa. Super. Page 304]

This is an appeal from a judgment entered on an order denying a petition to vacate an arbitration award. Appellant argues that the lower court erred in refusing to decide whether the arbitrators had exceeded their jurisdiction, and asks that we remand for a hearing on that issue. In our view, the lower court did not refuse to decide the jurisdictional issue but, rather, held that the arbitrators had not exceeded their jurisdiction. Except as to one part of the arbitrators' award, we agree with the lower court. We therefore affirm in part and reverse in part.

Appellees, Charles and Jean Hassler, own land over which appellant, Columbia Gas Transmission Corporation, has a right-of-way. The right-of-way dates from 1900, when Columbia Gas's predecessor, the Manufacturers Light and Heat Company, paid the Hasslers' predecessor $189 for the right to lay, maintain, and remove a 10-inch pipe line across the land. R.R. at 8a. The relevant portion of the 1900 agreement provides that Manufacturers Light will

     pay any damages which may arise to crops or fences from the maintaining, operating, or removal of said lines; said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons, . . . and the award of such three persons, or any two of them, shall be final and conclusive.

Id.

On March 7, 1978, the Hasslers filed an amended complaint in equity seeking, among other things, damages from Columbia Gas for "excavation of farm land, destruction of fences and crops, stampeding of cattle and spraying of ecologically harmful defoliants . . . ." Complaint, para. 5, R.R. at 6a. The complaint alleged that the excavation took place in 1969 (para. 7), and that the stampeding of cattle, destruction of crops, and spraying of ecologically harmful defoliants took place in 1977 (para. 6). Id. (There was no allegation of when the destruction of fences took place.)

In its answer, Columbia Gas alleged, by way of new matter, that the Hasslers' "cause of action for all acts of

[ 318 Pa. Super. Page 305]

    commission or omissi[o]n by defendant, except for herbicidal spraying, occurred in the year 1968," and was therefore barred by the statute of limitations and by laches, New Matter, paras. 21-22, R.R. at 15a, and that the "cause of action for spraying in the year 1977 and for other damages" was barred by the provision in the right-of-way agreement providing that damages not agreed upon must be determined by arbitration, New Matter, paras. 23-24, id. at 15a-16a.

By order dated November 28, 1978, the lower court "referred [the matter] to the arbitration set up by the parties themselves." R.R. at 18a. On August 22, 1979, after hearing testimony and viewing the property, the majority of a panel of arbitrators recommended an award in favor of the Hasslers of $15,765.78, broken down as follows:

(1) $386.00 1969 loss

(2) 250.00 Cow lost due to 1977 spraying ("Helicop[t]er

     stam-

     peded cattle and cow was ...


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