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JOHN A. VOGEL AND BETTY L. VOGEL v. DOUGLAS W. BERKLEY (07/11/86)

filed: July 11, 1986.

JOHN A. VOGEL AND BETTY L. VOGEL, HIS WIFE, APPELLANTS,
v.
DOUGLAS W. BERKLEY, FRED S. SHAULIS AND PBS COALS, INC.



Appeal from the Order entered in the Court of Common Pleas of Somerset County, Civil Division, No. 126 Civil 1983

COUNSEL

Robert P. Ging, Jr., Pittsburgh, for appellants.

John J. Dirienzo, Jr., Somerset, for appellees.

Tamilia, Kelly and Montgomery, JJ.

Author: Tamilia

[ 354 Pa. Super. Page 293]

This is an appeal from a pre-trial Order which dismissed with prejudice four of five counts of appellants' complaint and directed the case to trial only on the remaining count.

[ 354 Pa. Super. Page 294]

The facts indicate that appellants owned one piece of land (the home property) and subsequently purchased another property (the Adams' property). In 1976, they entered into separate option/lease agreements with appellees concerning the drilling and exploration for coal on both properties.

In 1977, appellees exercised the option acquiring rights to surface mine coal for five years on the Adams' property. In 1978, appellants, at appellees' request, executed a consent to entry in favor of Sun Coal Company who was to perform the mining activities. Subsequently, appellees entered into an agreement with Howard Will to mine the coal.

Appellants allege that after the mining operation began, they became aware that Will sold coal without paying them their royalties and also left a quantity of coal unrecoverable because of improper mining techniques.

On November 16, 1980, the parties entered into a settlement agreement which stated the circumstances of this dispute and expressed the parties' desire to reach a full and final compromise and settlement of all matters arising out of the facts.

In June 1984, a complaint in trespass was filed. The five counts alleged were: (1) fraudulent inducement to enter into the lease agreement; (2) fraudulent inducement to enter the land; (3) failure to pay royalties; (4) failure to reclaim the site; and (5) conspiracy to defraud and breach the lease.

In new matter, the appellee raised the settlement agreement as a bar to counts 1, 2, 3 and 5. Following a pre-trial conference, the court ruled as a matter of law the release barred the action as to those counts and ...


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