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JOSEPH DENNISTON LEET v. JOSEPH VINGLAS (06/04/87)

submitted: June 4, 1987.

JOSEPH DENNISTON LEET, A/K/A JOSEPH D. LEET, A/K/A JOSEPH L. LEET, A/K/A JOSEPH IRWIN LEET, A/K/A JOSEPH LEET ANSLINGER, MARY BERNICE ANSLINGER, A/K/A MARY BEA ANSLINGER, ANNA HARTMAN GOOD, A/K/A ANNA DUNCAN HARTMAN, A/K/A ANNA H. GOOD, WIDOW
v.
JOSEPH VINGLAS, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Cambria County at No. 1978-1985.

COUNSEL

Elizabeth A. Dougherty, Harrisburg, for appellees.

Del Sole, Popovich and Montgomery, JJ.

Author: Popovich

[ 366 Pa. Super. Page 296]

This is an appeal from the judgment of the Court of Common Pleas of Cambria County granting an action to quiet title in favor of the plaintiffs (Joseph L. Anslinger and Anna H. Good, individually and as executrix of the estate of Jesse L. Hartman) and against the appellant/defendant (Joseph Vinglas). We affirm.

The facts of record disclose that the plaintiffs filed a complaint seeking to quiet title to property leased to the defendant, for coal mining purposes, by Articles of Agreement dated July 1, 1953, which made provisions for remuneration and the length of the agreement in the following passages:

ARTICLE 2. The party of the second part shall pay to J. Gerst Denniston of 616 Pine Street, Hollidaysburg, Pennsylvania, who is hereby designated by all the other lessors as their agent to receive said payment, the sum of Twenty-five (25 cents) cents per net ton for the coal mined and removed as determined at the scales; settlement to be made at the end of each and every month during the continuance of this lease, or within thirty (30) days thereafter, the first settlement to be made on October 1, 1953 and to thence continue monthly thereafter.

ARTICLE 3. The term or period covered by this lease shall be for such time as the lessee shall continue to mine and operate on said tract, which mining operations shall be considered to continue until such time as the lessee decides to remove from the operations his mining equipment, tools, rails, buildings, etc., all of which said lessee is hereby authorized and empowered to remove at the time he decides or determines to cease mining operations.

It was also alleged in the complaint that the defendant, as of May, 1968, had ceased operating the leased premises and "thereupon abandoned the mining operation." (Paragraph 6) Further, the plaintiffs averred that the defendant, in violation of Articles 2 and 3, had not only "refused, failed and neglected to 'continue to mine and operate on said tract'", but he had "not accounted for nor ha[d] he paid any

[ 366 Pa. Super. Page 297]

    royalty for coal removed from the leased premises for a period of ten years dating from May, 1968" to the date of their May 22, 1978 complaint to quiet title. (Paragraphs 8 & 9)

Accordingly, the plaintiffs demanded, inter alia, that: (a) the July 1, 1953 agreement be declared null and void, as well as breached, broken and repeatedly violated; and (b) the defendant be barred from asserting any right, lien, title or interest in the leased premises.

In reply, the defendant filed an answer denying that he had removed any equipment, tools, rails or buildings from the site, or that he had any intentions of abandoning the mining operation.

Once a certificate of readiness for trial was filed with the prothonotary, the matter proceeded before the Honorable Eugene A. Creany for disposition in a bench trial, but not before each side submitted, pursuant to local rules of court, pre-trial statements reflective of their respective positions on the question of abandonment.

The trial judge heard evidence on June 25 and 26 of 1984. Thereafter, on October 23, 1985, following the submission of briefs by counsel, an opinion (making findings of fact and conclusions of law) and order were issued granting the plaintiffs' action to quiet title. Judgment was entered on September 15, 1986. This appeal followed and questions, initially, the trial court's conclusion that the ...


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