Appeal from the Order of the Court of Common Pleas of Fayette County, Civil, at No. 309 of 1983G.D.
Richard J. Amrhein, Washington, for appellant.
George L. Hallal, Uniontown, for appellees.
Cirillo, President Judge, and Montemuro and Tamilia, JJ.
[ 366 Pa. Super. Page 306]
Appellant challenges an order of the Fayette County Court of Common Pleas that denied appellant's exceptions to an order directing the prothonotary to pay to appellees the balance of a fund held in escrow. The fund contained a portion of the proceeds from a partition sale. We affirm.
The trial court in this case made the following findings of fact that are amply supported by the record. Appellees are eight of the ten common owners of the 150-acre tract of land that was the subject of the partition sale. On January 10, 1979, appellees, along with one of the other two owners, entered into a lease agreement with appellant Delta Mining Company ("Delta"). The lease, signed by the nine tenants in common, demised the land together with all rights necessary for the proper mining of the coal thereunder, including rights-of-way for transportation and haulage. The agreement provided for the payment of royalties to the lessors based on tonnage of coal mined. The lease did not convey any interest in the coal itself because the coal was not owned by the surface owners. The coal owner had independently
[ 366 Pa. Super. Page 307]
contracted to lease a 75% interest in the coal to Delta, with the remaining 25% leased to the Bridgeview Coal Company ("Bridgeview").
Delta had originally approached the ten owners and sought to enter an agreement to strip-mine the coal beneath the 150-acre tract. In 1979 Delta obtained the signatures of nine of the ten owners on a lease agreement. The remaining owner of the undivided 1/10 interest, James Morrison, offered to sign the lease if he would receive $.10 per ton more than that offered to the other owners. Delta refused that offer. Mr. Morrison then agreed to sign the lease if Delta would pay him $2,000 immediately and treat it as an advanced royalty. Delta turned down this second proposal. Delta then refused Mr. Morrison's third and final offer of a sale for $30,000 of his undivided 1/10th interest in the surface. In 1982 Mr. Morrison conveyed his 1/10th interest to Bridgeview. At about the same time, Mildred Hill, one of the nine who had signed the 1979 lease agreement, also conveyed her 1/10th interest to Bridgeview.
Delta, with full knowledge that all owners of the surface had not signed the lease agreement, made expenditures in anticipation of strip mining the tract. The Department of Environmental Resources (DER) advised Delta that in order to get the necessary permit for strip mining, Delta needed the consent of all surface owners.
Because it could not get the consent of all the surface owners, Delta proposed that the owners of the 8/10th interest in the land, the appellees herein, institute an action in partition against Bridgeview to obtain the remaining 2/10th interest. N.T., February 13, 1986, at 62. Pursuant to that proposal, Delta and the appellees signed an agreement, dated January 6, 1983, to supplement the January 1979 lease agreement. The 1983 agreement provided that appellees, "at their discretion," would determine the amount they would offer for Bridgeview's 2/10th interest. Delta agreed to advance 75% ...