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September 24, 1987


Cohill, Jr., C.J.

The opinion of the court was delivered by: COHILL, JR.

Plaintiffs in this case, William J. L. and Bonnie M. Lubecki, filed a civil complaint against the defendant, Omega Logging, Inc. ("Omega"), on June 20, 1984, alleging that they and the defendant had entered into a written agreement authorizing Omega to purchase and remove certain timber from plaintiffs' property. Plaintiffs assert that Omega unlawfully cut and removed ninety trees, primarily white oak, which were outside the scope of the agreement. They seek monetary damages as a result. Plaintiffs also seek damages for restoration of certain "skid roads" the defendant made on plaintiffs' property, the cost of removing treetops which defendant left on the property, and for damages relating to nondelivery of certain fence boards.

 Omega denied cutting and taking any trees which were not specified by the contract, averring that the ninety trees were cut and sold to one David Taylor in the year previous to Omega's contract with the plaintiffs. Moreover, the defendant alleged that the plaintiffs breached the agreement in removing defendant's log skidders from the site and otherwise preventing Omega from completing the lumbering operation. As a result, Omega asserted that it was no longer responsible for regrading the skid roads. With respect to the treetops left on plaintiffs' property, the defendant alleged that such practice is customary in the industry. Finally, the defendant filed a counterclaim, alleging that the plaintiffs, in breaching the timber sales contract between them and Omega, prevented Omega from removing the balance of timber specified under the contract. Accordingly, defendant seeks damages in the nature of lost profits.

 We conducted a nonjury trial in this matter on April 1 and 2, 1987. The plaintiffs testified on their own behalf as to their understanding of their contract with Omega and how they came to suspect that the defendant had removed trees outside the scope of the contract. The plaintiffs also called Mr. Paul Chovan, president of Omega, as on cross-examination. Mr. Chovan testified to the fair market value of different grades of white oak lumber, in terms of board-feet. Finally, plaintiffs presented the testimony of Mr. George Cline, a consulting forester, whom Mr. Lubecki asked to inspect the logging site. Mr. Cline testified that he observed ninety-one freshly-cut stumps of trees, including white oak, which Omega was not entitled to cut under the terms of the contract. Mr. Cline further testified to the amount of board-feet of lumber corresponding to these stumps, based on measurements he took and to which he applied formulae and tables used by the forestry service. Mr. Cline's measurements and related calculations were attached to plaintiffs' complaint.

 The defendant has objected to Mr. Cline's testimony, arguing that no expert's report was filed in support thereof. We reserved ruling on the admissibility of Mr. Cline's testimony until this time. The defendant also moved for involuntary dismissal of plaintiffs' complaint, arguing the plaintiffs had failed to carry their burden of proof as to the amount of damages they seek. In essence, the defendant argues that if Mr. Cline's testimony is inadmissible, insufficient evidence exists to show the amount of any trees wrongfully taken, whereby valuation of any loss is not possible. We took this motion under consideration as well and directed Omega to put in its defense. Omega's sole witness was Mr. Chovan, its president, who testified to his understanding of the contract between Omega and the plaintiffs. Mr. Chovan also estimated Omega's profit loss due to the trees sold to Omega which remain on plaintiffs' property. Robert Taylor, the defendant's subcontractor in charge of the logging operation was scheduled to appear but did not do so.

 We now make the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure.

 Findings of Fact

 The plaintiffs are residents of Pennsylvania; Bonnie Lubecki being a citizen of the United States of America, and William Lubecki being a registered alien and citizen of Canada. Omega is an Ohio business corporation.

 On January 18, 1982, the plaintiffs, William J. L. and Bonnie Lubecki, entered into a contract with the defendant, Omega Logging, Inc., for the sale of certain standing timber located on the plaintiffs' property in Butler County, Pennsylvania.

 Under the express terms of this contract Omega was to pay $ 3,000.00 ($ 500.00 at the execution of the contract and $ 2,500.00 before cutting the timber) and provide the plaintiffs with 3,500 feet of fence boards in exchange for all timber sixteen inches in diameter or larger standing on a certain tract of plaintiffs' land. See Plaintiffs' Ex. #1. All white oak was excepted from the contract and, in addition to white oak, all red oak located on the west side of a creek running through the tract was to be left standing. Also, Omega was entitled to "timber along Whitestown Road: to be marked by Mr. Lubecki." Id. No such marking ever occurred, however, and the defendant did not cut any timber along this road. Plaintiffs further granted to Omega "full and unhindered right of ingress and egress to and from said timber, also the full and unhindered right and privilege of installing and operating on said premises, all necessary saw mill machinery and equipment for the manufacture and removal of said timber within 1 years (sic) from this date." Id.

 Based on the testimony of Mr. Lubecki and Mr. Chovan we find that the 3,500 feet of boards which Omega was to provide to the plaintiffs were to be made of white oak. Also, as part of the custom and practice of Omega and the logging industry, Omega was to have regraded the main skid roads and landing site it created in cutting and removing the timber. We further find that Omega bore no responsibility for removal of treetops under the custom and practice of it and the industry.

 The defendant paid and the plaintiffs received the $ 3,000.00 specified by the contract. According to Mr. Lubecki, only 2,500 of the 3,500 feet of boards required by the contract were delivered to the plaintiffs, and none of the boards were made of white oak. The defendant, by and through its president, Mr. Chovan, does not contest this point, and we therefore adopt Mr. Lubecki's statements as to the amount and nature of the boards delivered as part of our findings of fact.

 Omega, by and through Robert Taylor, an independent subcontractor, began the logging operation in May of 1982 and, again based on Mr. Chovan's testimony, removed part of the standing timber to which Omega was entitled under the contract. During the course of this logging operation, Robert Taylor cut and removed ninety-one trees to which Omega was not entitled. We base this finding on the testimony of George Cline, who personally inspected the logging site at Mr. Lubecki's request. Mr. Cline testified to observing ninety-one freshly-cut stumps which corresponded to trees outside the terms of the contract, either because said trees were white oak, because the stump diameter of said trees was less than sixteen inches or, in one case, because the stump corresponded to a red oak located on the west side of the creek running through the tract. Mr. Cline testified that he identified the species of the trees cut by examining the bark on the corresponding stumps and tree tops; he further testified that the white oak species was easily identified in such a manner. Mr. Cline also acknowledged finding white oak stumps from a previous logging operation, but he testified that they were readily distinguishable from the freshly-cut stumps. Consequently, we find that plaintiffs' complaint does not relate to any previous logging operation on plaintiffs' property. One tree was left behind on plaintiffs' property, leaving ninety trees which we find to have been taken by defendant without plaintiffs' permission.

 Mr. Cline estimated the ninety trees to have contained 18,740 board-feet of lumber: 17,594 board-feet of white oak, and 1,146 board-feet coming from ten trees constituting other than white oak. The measurements are attached to plaintiffs' complaint. Mr. Cline described these estimates as deriving from mathematical formulae and tables available to the forestry service, which indicate the volume in board-feet of a log having a particular length and from a tree having a particular diameter at breast height ("DBH"). The DBH for each tree was, in turn, derived mathematically from the height and average diameter of the stumps which Mr. Cline identified as being outside the contract. The length of the logs was based on actual measurement of the markings created in the ground when the trees fell. Mr. Cline admitted that such measurement leads to a possible maximum eight percent (8%) deviation from the actual length in the cases of trees which slid or moved in some other fashion after falling. However, Mr. Cline estimated that, at most, only twenty percent (20%) of the ninety trees in question moved in such a fashion as to give rise to this deviation.

 Plaintiffs, in their proposed findings of fact, have suggested 16,000 board-feet to be the approximate volume of the white oak trees cut and removed by Omega. Based on Mr. Cline's testimony and the possible deviations involved in his measurements, we agree and find 16,000 board-feet to be a fair estimate of said volume. *fn1"

 Insufficient evidence exists from which we can determine the grade or quality of the white oak taken. Consequently, we will consider all of the white oak taken to be "No. 3 common," the least valuable grade of white oak.

 Based on the testimony of Mr. Chovan, we find the fair market value of 1000 board-feet of No. 3 common white oak to have been $ 100.00.

 Insufficient evidence exists from which we can determine the value of the ten trees taken by Omega which were outside the contract and not white oak.

 White oak is easily identified, according to Mr. Cline. Presumably it could have been identified by Robert Taylor, as a result of his experience as a lumberman, or at least because such knowledge would have been necessary for Mr. Taylor to distinguish those trees outside the scope of the timber contract between the plaintiffs and Omega. Therefore, we resolve any question of intent against Mr. Taylor and Omega. In other words, we find that Mr. Taylor intentionally cut and removed eighty white oak, knowing that he did not have the authority to do ...

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