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decided: June 28, 1988.


Original Jurisdiction in the case of Commonwealth of Pennsylvania, Department of Transportation v. Manor Mines, Inc. and The Travelers Indemnity Company.


James W. Kutz, Assistant Counsel, with him, Robert J. Shea, Assistant Counsel, Kenneth Lee Sable, Assistant Counsel, John L. Heaton, Chief Counsel, for plaintiff.

Gregg M. Rosen, Rosen & Mahfood, for defendants.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 117 Pa. Commw. Page 343]

Before this Court for disposition is a motion for posttrial relief filed by defendants, Manor Mines, Inc. (Manor Mines) and The Travelers Indemnity Company (Travelers), seeking, alternatively, a new trial or judgment in defendant's favor.


This matter was initiated in this Court's original jurisdiction by the Pennsylvania Department of Transportation's (DOT) filing of a complaint on February 3, 1982, against Manor Mines and Travelers. In its complaint, DOT sought the recovery of sums due under a Heavy

[ 117 Pa. Commw. Page 344]

Hauling Agreement (Agreement) executed between the parties on or about June 6, 1976.

Numerous pleadings were filed by the parties and substantial discovery was conducted. A non-jury trial on this matter before the trial court*fn1 commenced on June 15, 1987 and ended June 18, 1987. The parties filed a stipulation of facts and at the conclusion of the trial, submitted Proposed Findings of Fact and Conclusions of Law, as well as post-trial briefs. On November 19, 1987, the trial court issued a Memorandum Opinion entering judgment for DOT.

On December 14, 1987, Manor Mines and Travelers filed post-trial motions seeking a new trial and/or judgment in their favor.*fn2 Consequently, on December 21, 1987, this Court issued an Order vacating its Order of November 19, 1987, to the extent that the former entered final judgment in DOT's favor, and ordering that briefs be submitted by the parties with respect to the post-trial motions.

Relevant Facts

The Memorandum Opinion issued by the trial court contains no specific findings of fact. However, the parties do agree that many facts relating to this matter are undisputed. In our capacity as factfinder, we set forth below, the relevant facts as derived from the stipulation

[ 117 Pa. Commw. Page 345]

    of facts entered into by the parties, the record testimony, and the exhibits entered into evidence.

Manor Mines operated an underground coal mine facility, known as the Manor 8 facility, the portal for which was located in Washington Township, Indiana County, Pennsylvania. In order to transport the coal produced from the Manor 8 facility, Manor Mines hauled over Pennsylvania Legislative Route 32074 (L.R. 32074), commencing at the portal on L.R. 32074 and heading in a northerly direction. The stretch of L.R. 32074 over which Manor Mines hauled this coal covered 3.71 miles, extending from Station 31100 through Station 226 86.*fn3

On or about April 21, 1976, pursuant to an engineering study conducted by DOT, L.R. 32074 was posted with a ten ton weight restriction. On June 8, 1976, Manor Mines and DOT entered into the subject Agreement. Incident to this Agreement, DOT performed a preliminary inspection of the roadway in preparation for the posting of a surety bond by Travelers.*fn4

Between June, 1976, and March 27, 1981, Manor Mines produced coal at its Manor 8 facility and transported that coal over L.R. 32074. From 1976 to the end of 1979, Manor Mines was billed annually for the cost of repairing L.R. 32074. These billings amounted to a total of approximately $8,500.00. In 1980 and 1981, DOT performed repairs for which Manor Mines has not maintained responsibility.*fn5

[ 117 Pa. Commw. Page 346]

In September of 1981, after learning that Manor Mines had ceased its hauling operations on L.R. 32074, DOT performed a final inspection of the roadway. During this inspection, DOT noted all repairs necessary at the time of the final inspection which were not listed on the preliminary inspection. These repairs were performed by DOT's contractor and Manor Mines was billed for the cost of these ...

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