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filed: March 25, 1983.


No. 1200 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division -- Law, Allegheny County at No. G.D. 76-26122.


Lester E. Zittrain, Pittsburgh, for appellants.

Gregg M. Rosen, Pittsburgh, for appellee.

Beck, Montemuro and Popovich, JJ.

Author: Montemuro

[ 313 Pa. Super. Page 100]

This is an appeal from an order of the Court of Common Pleas of Allegheny County entering judgment in favor of the defendant/appellee, Old Home Manor, Inc. The judgment so entered by the court below was on a Case Stated.


An analysis of the procedural history may be helpful. Appellants herein, Glenn and Carolyn Olbum, filed a complaint in assumpsit seeking sums in the form of minimum

[ 313 Pa. Super. Page 101]

    royalties allegedly due them from appellee, under the terms of a written agreement. Subsequent to the close of the pleadings, appellants filed a Motion for Summary Judgment. The motion was submitted to the court below on briefs and affidavits of the parties. Following oral argument the matter was taken under advisement by the trial judge, the Honorable Richard G. Zeleznik.

Thereafter the court entered an order dismissing the Motion for Summary Judgment and accompanied the order with a nine page opinion.

Several months later the parties submitted the controversy to the Honorable Joseph A. Del Sole as a Case Stated, the same being a stipulation of counsel designed to be considered by the court in conjunction with the pleadings, exhibits, affidavits, interrogatories and answers thereto, and requests for admissions and answers thereto. The facts having been agreed to by the stipulation, the parties waived their right to an evidentiary hearing.

Several months thereafter the trial judge entered judgment in favor of the appellee herein, Old Home Manor, Inc., and from that judgment the appellants, Glen and Carolyn T. Olbum, have taken this appeal.

The Honorable Joseph A. Del Sole, filed an opinion wherein he stated that following a review of the entire record and the stipulation, he was adopting the opinion of Judge Zeleznik as the applicable law to the facts of the case.



1. Glenn Olbum and Carolyn T. Olbum, his wife, the plaintiffs in the within action are 44 years of age and 42 years of age, respectively, have been married to each other for 23 years and during all of their married life have resided in the City of Pittsburgh where Mr. Olbum has been engaged as a principal in the meat trading business for over 20 years and Mrs. Olbum has primarily been occupied as a housewife and mother to the three Olbum children.

[ 313 Pa. Super. Page 1022]

. Between the years 1965 and 1968, the plaintiffs purchased 139 acres of wooded land in Ligonier Township, Westmoreland County, Pennsylvania, for the purpose of having a weekend and vacation retreat for themselves and their children and in connection therewith they had constructed for them on their property an artificial pond in 1967 and a home, garage/workshop building and guest cabin between the years 1967 and 1971.

3. The defendant, Old Home Manor, Inc., is a Texas corporation engaged in the business of coal mining within the State of Pennsylvania.

4. The defendant has actively mined coal, by both the deep and surface mining method, since 1971.

5. All of the defendant's coal mining operations, activities and facilities have been and are carried on, maintained and located in Pennsylvania and, in particular, Western Pennsylvania.

6. The defendant obtained permits to strip mine several hundred acres of land in Western Pennsylvania between January 25, 1971 and September 3, 1974 and the defendant did conduct strip mining operations upon said properties.

7. There was a very favorable coal market in 1974.

8. On or about September 27, 1974, plaintiffs and the defendant entered into a certain written agreement and addendum thereto (hereinafter called the "Agreement"), a true and correct copy of which is attached to the plaintiffs' complaint in assumpsit as Exhibit "A".

9. The subject matter of the Agreement is the coal on the plaintiffs' property in Ligonier Township, Westmoreland County, Pennsylvania, the strip mining thereof by the defendant, and the rights, duties and obligations of the parties in connection therewith.

[ 313 Pa. Super. Page 2]

10. On Page 2 of the Agreement, it is provided that the defendant shall work and mine the coal on the plaintiffs' property and Paragraph NINTH of the Agreement provides that the defendant shall pay the plaintiffs a minimum royalty of $3,000.00 per month commencing on October 1,

[ 313 Pa. Super. Page 1031974]

and continuing monthly thereafter for a period of four years with specific provision to credit payment against future production royalties.

11. The term stated in the Agreement was for a period of four years commencing October 1, 1974 and terminating September 30, 1978.

12. The Agreement contained no "savings" clause.

13. Prior to commencing mining operations on the plaintiffs' land, the defendant obtained strip mining permits for 345.2 acres in Westmoreland County and, in addition, by agreement with Bridge Coal Company, Inc. dated July 20, 1973, acquired the coal mining rights pertaining to the land of Alice M. Barron of Ligonier Township, Westmoreland County, Pennsylvania ...

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