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filed: April 26, 1985.


NO. 442 PITTSBURGH, 1982, Appeal from the Order of April 22, 1982, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 81-27859.


Jay N. Silberblatt, Pittsburgh, for appellants.

Donald D. Saxton, Jr., Washington, for appellees.

Brosky, McEwen, and Beck, JJ. McEwen, J., files concurring and dissenting opinion.

Author: Beck

[ 342 Pa. Super. Page 105]

This is an appeal from an order granting the preliminary objections of appellee Republic Steel Corporation ("Republic") and dismissing the complaint of appellants, plaintiffs below, against Republic. For the reasons stated below we reverse and remand.

In November 1977, appellant Francis D. Patton purchased a tract of land in West Deer Township, Allegheny County, from defendants Marcellus and Blanche Schwartz.*fn1 Mr. Patton erected a single-family dwelling on the property which was completed in February 1980. He then married Sandralee L. Patton, and the couple resided in this dwelling. Republic's Russellton bituminous coal mine underlies the Pattons' property. The Pattons allege that Republic commenced and/or recommenced mining operations "on or about October of 1980 to April of 1981" (Complaint, para. 11).

[ 342 Pa. Super. Page 106]

In March 1981, appellants' land began to shift and subside, causing damage to their residence.

Appellants subsequently brought the instant action against Republic and the other defendants. Their complaint alleged, inter alia, that the subsidence damage to their home had been caused by Republic's negligence. Appellants further alleged that Republic was liable to them because it had failed to comply with the notice provisions of the Bituminous Mine Susidence and Land Conservation Act, Act of April 27, 1966, P.L. 31, 52 P.S. §§ 1406.1 et seq. ("1966 Act").

Republic's rights to the coal in question are traceable to a 1918 deed from George and Ida Fechter to Ford Collieries, Inc. ("the 1918 deed"). This deed granted Ford Collieries ownership of the coal itself "TOGETHER with the right of the party of the second part [Ford Collieries], its successors or assigns, to mine out and remove all coal free from all liability for damages done the surface or injury of any sort arising from the mining and removal of all said coal." There are three separate estates inherent in a tract of land: the surface, mineral and subjacent support estates. The 1918 deed conveyed to Ford Collieries two of the three estates inherent in the tract of land, namely the estate in the coal itself and the estate of subjacent support. The Fechters retained only the surface estate. See Klein v. Republic Steel Corporation, 435 F.2d 762 (3rd Cir. 1970); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Atherton v. Clearview Coal Co., 267 Pa. 425, 110 A. 298 (1920); Scranton v. Phillips, 94 Pa. 15 (1880).

Republic argues that the 1918 deed by its terms relieves them of any liability. While we agree that by the terms of the deed, appellants have no general property interest against Republic in subjacent support of their land, appellants' claims are not based on the 1918 deed. Rather, they are statutory in nature.

Appellants claim that Republic is liable to them by virtue of the Act of July 2, 1937, P.L. 2787, 52 P.S. § 1407 ("1937

[ 342 Pa. Super. Page 107]

Act"), which makes it unlawful for an operator to conduct mining operations in such a negligent manner as to cause the caving in, collapse, or subsidence of a dwelling, and section 1406.10 of the 1966 Act, which imposes on mine owners and operators a duty to notify affected surface landowners of the commencement or recommencement of mining operations.

Republic's preliminary objections alleged that the complaint failed to state a claim on which relief can be granted, and further alleged that the 1937 Act and section 4 of the 1966 Act, 52 P.S. § 1406.4, are unconstitutional because they work a taking of property without just compensation.

The trial court granted Republic's preliminary objections and dismissed appellants' complaint. In its opinion, the court stated that the reason for its decision was that appellants had no remedy under the 1966 Act. Appellants argue that the court erroneously interpreted the 1966 Act. In the alternative, appellants maintain that they should be permitted to proceed on their negligence claim based on the 1937 Act even if they have no claim under the 1966 Act.

With respect to the 1966 Act, the crucial issue is whether the statute obligated Republic to notify the Pattons of its mining activities. It is undisputed that Republic sent a notice pursuant to § 1406.10 of the 1966 Act to the Schwartzes, appellants' predecessors in title, in 1967. Appellants contend that Republic also had a duty to notify them of the recommencement of mining after they acquired the subject property.*fn2

[ 342 Pa. Super. Page 108]

In holding that Republic had no duty to inform appellants of its intent to mine pursuant to § 1406.10 of the 1966 Act, the trial court's opinion contravenes the language and policy of the statute, and deprives appellants of the rights which the legislature intended to secure for them.

It is axiomatic that legislative intent is our touchstone in interpreting a statute. 1 Pa.C.S. § 1921(a); Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commw. 129, 358 A.2d 433 (1976). In enacting the Bituminous Mine Subsidence and Land Conservation Act, the legislature stated clearly its goals, policies, and intentions. In section 3 of the 1966 Act, 52 P.S. § 1406.3, the legislature stated that the protection of land and structures from subsidence caused by subsurface bituminous mining is "related to the economic future and well-being of Pennsylvania" and "necessary to the safety and welfare of the people." The legislature further found that "[i]n the past, owners of surface structures have not in many instances received adequate notice or knowledge regarding subsurface support, or lack thereof, for surface structures, and therefore the State must exercise its police powers for the protection of the structures covered herein." 52 P.S. § 1406.3(6).

To remedy the stated evils and accomplish its stated policy goals, the legislature then set up a statutory scheme with four key provisions relating to the rights of surface landowners and the duties of mine operators to notify landowners of their activities:

(1) Automatic protection against subsidence damage for residences, cemeteries, and certain other noncommercial structures in place when the Act became effective in 1966 (§ 1406.4);

(2) The right of landowners to purchase protection for structures not covered by § 1406.4, either because they are not of a type listed in that section or because ...

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