author: CERCONE, President Judge:

text:
    450 A.2d 162
    UNITED STATES STEEL CORPORATION, Appellant, v. Mary Jo HOGE, Jessie Lee Cowan, Harvey C. Cowan and Mary L. Cunningham and Kinloch Development Corporation, Mary L. Cunningham, Harry A. Murdock, Jr., and Donis M. Murdock.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed Aug. 27, 1982.
    Petition for Allowance of Appeal Denied April 4, 1983.

      Gilbert J. Helwig, Pittsburgh, for appellant.
    R. Wallace Maxwell, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

This is an appeal from the final decree of the Court of Common Pleas of Greene County dissolving a preliminary injunction against certain drilling operations, quieting title in coalbed gas contained in a certain coal seam in favor of the surface owners (which coalbed gas was the object of the temporarily enjoined drilling), and permitting the surface owners and their gas lessee to drill into the coal seam and to extract the gas contained therein, subject to certain restrictions imposed by the chancellor to prevent damage to the coal owner’s interest in the coal.

We deal here with a question of first impression: the ownership of coalbed gas. Appellant, U.S. Steel, is the owner of the coal. The appellees are the surface owners of two tracts of land in Greene County, and their gas and oil lessee is Cunningham. The coal seam in question is known as the Pittsburgh or River seam and lies approximately 800 feet below the surface. The first surface tract is owned by appellees Mary Jo Hoge, Jessie Lee Cowan and Harvey C. Cowan; the second tract is owned by Harry A. Murdock, Jr. and Donis A. Murdock. (Hereinafter referred to jointly as surface owners or appellees). The appellees’ predecessors in title relinquished their rights to the coal underlying the surface tracts by severance deeds to appellant’s predecessor in title in the early part of this century. However, the surface owners reserved “the right to drill and operate through said coal for oil and gas without being held liable for any damages.” Appellee Cunningham obtained an oil and gas lease to the Hoge-Cowan tract in December of 1976; and she obtained a similar lease to the Murdock tract in June of 1977. The respective lessors granted Cunningham “all of the oil and gas and all of the constituents of either in and under” the surface tracts. In return, Cunningham promised to deliver to her respective lessors one-eighth “of all methane gas as well as . . . all gas and casing head gas produced and sold” under the respective leases.

U.S. Steel opened its Cumberland Mine in August of 1977 with the intention of eventually recovering coal in that portion of the Pittsburgh seam underlying both the Hoge-Cowan and Murdock tracts, which lay several miles distant from the mine’s face. In January of 1978 Cunningham, the gas and oil lessee, began drilling a well on the Hoge-Cowan tract for the express purpose of recovering coalbed gas contained in the subjacent Pittsburgh coal seam. Cunningham drilled for the same purpose on the Murdock tract, beginning on March 31, 1978. Upon learning of the drilling operations and Cunningham’s apparent intention to stimulate production of coalbed gas through a method known as hydrofracturing, U.S. Steel initiated these consolidated actions in equity to terminate this instrusion and trespass upon its coal seam property. It sought injunctive relief based on the alleged irreparable injury which would occur if hydrofracturing of the coal seam were performed, and further sought to preserve its right, title and ownership of the coal. U.S. Steel also sought a determination of the ownership and right to develop the coalbed gas in the portion of the Pittsburgh seam beneath the two surface tracts.

The chancellor granted the preliminary injunction pending a disposition on the merits. Appellees filed preliminary objections which were subsequently denied. On March 24, 1980, after extensive testimony and argument, the chancellor entered his adjudication and decree nisi, permitting appellees to drill for coalbed gas contained in appellant’s coal seam, but forbidding them from using any hydro-fracturing methods to obtain the gas. U.S. Steel filed timely exceptions. The chancellor denied the exceptions and filed an opinion and final decree in the matter on September 29, 1980.

On appeal, U.S. Steel questions the propriety both of the chancellor’s conclusions of law and of the final decree. Essentially U.S: Steel argues that the chancellor erred in concluding that the title to the coalbed gas or the right to recover it did not pass to the coal owners by the coal severance deeds in question. It puts forward four arguments based on the severance deeds, which would place the right to recover, or title to the coalbed gas in them and not in the surface owners. A fifth argument sounds the call of public policy. We will consider these arguments seriatim.

In our discussion of the coal severance deeds we are mindful of the applicable rules of construction. Those rules require that the instrument be construed to give effect to the intention of the parties to the instrument. See In re Conveyance of Land Belonging to City of DuBois, 461 Pa. 161, 335 A.2d 352 (1975); Hardes v. Penn Charcoal & Chemical Co., 175 Pa.Superior Ct. 431, 107 A.2d 176 (1954). The rules of construction further require that a deed should be considered in its entirety, giving effect to all its terms and provisions, and reading the language in light of conditions existing at the time of its execution. In re Conveyance of Land Belonging to City of DuBois, supra; St. Michael & Archangel Russ. O.G. Cath. Ch. v. Uhniat, 451 Pa. 176, 301 A.2d 655 (1973). If the language of the deed prove ambiguous then it will be interpreted mostly strongly against the drafter of the deed. New Charter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830 (1963); Lacy v. Montgomery, 181 Pa.Superior Ct. 640, 124 A.2d 492 (1956). However, this latter rule of construction may not be employed as some talismanic solution or magic formula for the construction of the ambiguous language or resolution of the dispute since, first and foremost, we must always keep an eye to the parties’ intentions.

1.

U.S. Steel argues that its fee simple interest in the coal embraces everything in the geological stratum comprising the coal vein. It bases its argument on the supposed precedent of several ancient cases. Since the case of Caldwell v. Fulton, 31 Pa. (7 Casey) 475 (1858) coal ownership has been considered in the nature of a corporeal hereditament, severable from the surface, and attended with all the attributes of other forms of land ownership. In Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 A. 1035 (1891), the question arose whether the surface owner could enjoin the coal owner from transporting coal mined under an adjacent tract through shafts and passageways cut in the coal under the first tract. The Court held that since the coal was a corporeal hereditament under Caldwell v. Fulton, supra, and that no injury to the complainant was either proved or averred, the coal owner could not be enjoined as the complainant desired. In its opinion in Lillibridge the Court stated the following:

The proposition that the plaintiffs have a fee in the chamber or space left by the removal of the coal, antagonistic to the right of the defendant to use it, is a novel one. No authority is cited to support it, and it seems quite incongruous with the admitted ownership and estate of the defendant in the coal displaced. Under all the decisions, the coal in place was absolutely owned in fee-simple by the defendant. In a state of nature, the coal necessarily occupied space. How could the defendant own the coal absolutely and in fee-simple, and not own the space it occupied? Or, how is it possible to conceive of such a thing as the ownership of the space independently of the coal? If the coal in place is a part of the very substance of the soil, more corporeal than the surface, as was said in Caldwell v. Fulton, how can the law regard the space which the substance occupies, as other than the substance itself? Of course, such an idea is incapable of practical application, except upon the theory that the coal is not a corporeal substance to be sold and delivered, but that only an incorporeal right to remove it passes to the grantee under a conveyance. And such is the real nature of the appellants’ argument. It could not be otherwise. Certainly, if such were the nature of the defendant’s right, the argument and the authorities cited in support of it would be applicable and of controlling force; but it is a sufficient reply to all of them to say that all the decisions are directly the other way, and that they all establish that a conveyance of the coal in fee carries everything with it, just as fully and completely as a conveyance of the soil above.

Lillibridge v. Lackawanna Coal Co., 143 Pa. at 301-302, 22 A. at 1037.

U.S. Steel also relies on the leading case of Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 A. 597 (1893). In Chartiers Block the coal company purchased the subsurface coal in 1881, ten years or so before the surface owner became aware that there was valuable natural gas deep under the coal vein. Because he had been unaware both of the value and existence of this natural gas the surface owner neglected to reserve the right to drill through the coal in order to exploit the natural gas. In 1891 the surface owner leased the oil and gas rights to Mellon, who began at once to drill for it. The coal company brought suit in equity seeking to enjoin Mellon from further drilling, which it was alleged would cause irreparable harm to the coal company’s interest in the coal. The lower court granted the injunction against any future drilling, but allowed drilling to continue on those wells already begun, provided Mellon post adequate security. The Supreme Court affirmed the lower court’s decree because it agreed with the ruling that the surface owner maintained an implied right of access to all substrata the title to which he retained. U.S. Steel would have us focus our attention on dictum in the Court’s opinion which appears to imply that ownership of coal is in fact ownership of its geological situs, i.e. the stratum, and analogous to ownership of a surface tract:

The mining of coal and other minerals is constantly developing new questions. Formerly a man who owned the surface owned it to the centre of the earth. Now the surface of the land may be separated from the different strata underneath it, and there may be as many different owners as there are strata: Lillibridge v. Coal Company, 143 Pa. 293, 22 A. 1035.
So it often happens that the owner of a farm sells the land to one man, the iron or oil, or gas to another, giving to each purchaser a deed, or conveyance in fee simple for his particular deposit or stratum, while he retains the surface for settlement and cultivation precisely as he held it before. The severance is complete for all legal and practical purposes. Each of the separate layers or strata becomes a subject of taxation, of incumbrance, levy, and sale, precisely like the surface. .. . Prior to the sale of the coal his estate, as before observed, reached from the heavens to the centre of the earth. With the exception of the coal his estate is still bounded by those limits. . . .

Chartiers Block Coal Co. v. Mellon, 152 Pa. at 295-96, 25 A. at 598. In response, appellees cite other dictum in Chartiers which seems to say that there is no legal right to the geological situs of the coal, but only a right to extract the coal and those rights incidental to the right of extraction:

Practically considered the grant of the coal is the grant of a right to remove it. This grant is sometimes limited in point of time; in others it is without limit. In either event it is the grant of an estate determinable upon the removal of the coal. It is moreover, a grant of an estate which owes a servitude of support to the surface. When the coal is all removed, the estate ends for the plain reason that the subject of it has been carried away.

Id., 152 Pa. at 296, 25 A. at 599. Appellees also cite the case of Webber v. Vogel, 189 Pa. 156, 42 A. 4 (1899) which refined the holding in Lillibridge. In Webber the Court held that a coal owner has the implicit right to transport coal under the surface tract so long as the coal owner has maintained mining operations in good faith. There the Court stated:

While there exists by the deed to the grantee an estate in fee simple in the severed coal, and his right to the space mined out will not be distinguished from that in which the coal remains unmined, that estate, except in very rare cases, has no badge of perpetuity. In nearly every case, the instrument itself discloses the intention of the parties, that the coal shall be mined; that is, that the subject of the grant shall soon be exhausted or consumed; it is severed from the under and overlying land for the purpose of turning it into money; it would not only be a perversion of the intention to merely use such an estate to reach other coal, but such use would be a continual menace to the stability of the surface; no owner of the upper land could tell when his estate would cease to be disturbed by workings underneath. It was intended to go no further in the case cited, [Lillibridge v. Lackawanna Coal Co., supra ] than to hold, that while the purchaser of the coal was in good faith mining out his coal, his right to the use of the space made vacant by his workings as they' progressed, could not be successfully obstructed by the owner of the surface; and not that by the purchase of the coal, he obtained an undisputed and perpetual right of way under another’s land. The owner of the land above and below has a right to the reversion of the space occupied by the coal within a time contemplated by the parties when they sever that peculiar part of the land from its horizontal adjoiners.

Webber v. Vogel, 189 Pa. at 160, 42 A. at 5.

As we read these cases neither Lillibridge nor Chartiers Block nor Webber stands for the proposition that title to coal in place is title to the space made vacant by the coal removal. Craig and Myers point clearly to this analysis: that is to say, that despite repeated references to coal as land it is not truly land (although it be terra firma) but a mineral deposited within the land and its ownership not truly a corporeal hereditament but a divisible incorporeal right different from the incorporeal hereditament disapproved of in Caldwell v. Fulton. See Craig & Myers, Ownership of Methane Gas in Coal Beds, 24 Rocky Mt. Min. Inst. 767 (1978). They write:

Horizontal division of land ownership is, however, more a metaphor than a legal definition of the relative rights of surface and mineral owners; a particular mineral substance such as coal or gas, and not any given stratum is the true subject of the conveyance. Pennsylvania law has long recognized the possibility of separate ownership of each of the valuable constituent parts of a given tract. The owner of each mineral has all the rights of a fee owner as to that mineral in addition to the right to use the surface insofar as such use is necessary to extract the mineral.

Craig & Myers, id. at 774. Craig and Myers proceed to cite as their authority the same obiter dicta cited to us by U.S. Steel. We think this a far better reading of Chartiers Block, Lillibridge and Webber than that proposed by U.S. Steel.

2.

U.S. Steel next argues that at the time of the execution of the severance deeds, coal and coalbed gas were commonly identified, and insofar as questions of ownership were concerned, considered as essentially different aspects of the same substance. U.S. Steel claims that this identification was true in the scientific community, the gas, oil and coal industries, and the general population.

The chancellor found that at the time of the execution of the coal severance deeds it was well known that coal mines always contained some coalbed gas. He also found that coal and coalbed gas arose at the same geological time from the same decaying matter. However, the chancellor did not find that this was common knowledge at the time, or that it was then commonly accepted as scientific fact. Thus, despite the general knowledge that coal mines often contain dangerous gases (coalbed gas) and that these gases are likely either to kill if inhaled or to explode if inadvertently ignited we cannot say that at the time of the execution of the severance deeds that there was any common understanding that the coalbed gas is intimately connected with the coal itself.

As regards the legal background at the time of the execution of these deeds, we are reminded of the so-called Dunham rule, peculiar to the law of Pennsylvania, that natural gas is not a mineral, as that term is commonly understood, and thus does not pass under a deed severing coal and other minerals from the surface tract. See Dunham & Shortt v. Kirkpatrick, 101 Pa. 36, 47 Am.Rep. 696 (1882). Although the Dunham rule specifically applies to natural gas, as distinguished from coalbed gas, we see no reason why we cannot employ it here by analogy, particularly when the rule was adopted nearly half a century before the execution of the coal severance deeds. At the time when the Dunham rule was adopted there seems to have been little, distinction made between coalbed and natural gas, and it would appear that this failure to distinguish between the two gases—so similar in composition—continued at least until after the execution of these coal deeds.

3.

Thirdly, U.S. Steel argues that the right to drill through the coal seam in order to recover gas reserved by the grantors in the severance deeds does not include the reservation of the right to recover the coalbed gas contained in the coal seam. The argument ignores both the historical facts of gas exploitation in the region and the law of gas ownership in Pennsylvania. The chancellor found that at the time the coal severance deeds were executed the practice in the gas industry was to take gas from any stratum or geological formation which produced it in paying or marketable quantities. When a particular stratum was exhausted of its marketable gas the well would customarily be drilled deeper until sufficient gas was again encountered. The chancellor specifically found that in numerous instances gas was taken from coal seams and the well then drilled deeper to gas-bearing sands. And he found that in several instances gas was removed solely from the coal seam, and that for substantial periods of time.

Pennsylvania has long adhered to the “ownership in place” theory of title to oil and gas. See Hamilton v. Foster, 272 Pa. 95, 116 A. 50 (1922); and see Williams & Meyers, Oil and Gas Law 48 (1981). Hamilton refuted earlier cases which apparently followed the so-called “non-ownership” theory of title and specifically renounced the notion that the latter constituted the law in Pennsylvania. In Hamilton the Court criticized the plaintiff-appellants for trying to expand dictum in Westmoreland & Cambria Natural Gas Co. v. DeWitt, 130 Pa. 235, 18 A. 724 (1889). That case apparently classed oil and gas as ferae naturae. The Westmoreland & Cambria Natural Gas case based this classification on the scientifically faulty conclusion in Brown v. Vandergrift, 80 Pa. (30 P.F. Smith) 142 (1875) that oil and gas lead a “fugitive and wandering existence” beneath the surface of the land. Id., 80 Pa. at 147. In Hamilton, the court protested that it had not intended to hold in Westmoreland & Cambria Natural Gas, nor had it held, that oil and gas were as incapable of ownership as wild animals.

U.S. Steel’s argument begs the very question it asks. The argument assumes that the surface owners intended to part with the rights to the coalbed gas when they granted the rights to the coal. Even reading the reservations strictly against the grantors, the most that can be said of the clause is that the surface owners were aware of the fact that there might be gas on the premises and that they might be held liable for damages to the coal if they were obliged to drill through it to extract the gas, and that to avoid this liability they reserved the right to drill through the coal without any imputation of liability to the severed estate.

4.

U.S. Steel’s fourth argument rests on the right granted by the severance deeds to ventilate the coalbed gas. The chancellor’s conclusion of law regarding the right of ventilation reads:

The right of the owner of the coal to ventilate the mine, legally is that and nothing more. It gives the coal owners the right to bring fresh air into the mine and draw stale air, gases and fumes out of the mine, and to waste the coal bed gas, or capture it at its pleasure, in the course of mining, but this creates no property right by reason thereof in the coal bed gas, except that the coal owner, if he chooses, could capture the gas released in the course of the mining operation and make separate sale of it.

In reaching this conclusion the chancellor relied on the case of Kier v. Peterson, 41 Pa. (5 Wright) 357 (1862). U.S. Steel argues that the right to ventilate the coal extends further than the chancellor concluded, i.e., that it creates an absolute right of ownership in the ventilated gas. The facts of Kier are as follows: In 1837 Peterson leased to Thomas and Samuel Kier a certain piece of land in Allegheny County. As part of the lease Peterson granted the Kiers the right to bore salt-wells and to mine coal. The lease was for an indefinite term to last as long as the Kiers, or the survivor of them, or their assigns, maintained the salt-wells, the construction of which was contemplated by the lease. The lessees sunk a salt-well in 1839. In 1845 oil began to rise with the brine from the salt-well. The lessor brought an action in trover seeking to recover the oil from his lessees. The Supreme Court stated that the question before it was, to whom did the oil belong, to Peterson or to the lessees. The Court held that because the lessees were tenants for life with the full right of exploitation of the underlying salt they could not be charged with the waste of the oil. The opinion laid great weight upon the fact that oil and salt deposits are commonly geologically associated. Justice Read, writing for the majority of the Court, went on to state:

The presence therefore of petroleum or mineral oil is naturally to be expected in the salt formations west of the Allegheny Mountains, and although its great value has not been fully appreciated until within a few years, still if it comes up as in the present instance, with the brine of a well which was opened in pursuance of, and must regularly be worked by, the express stipulations of the lease, it must belong to the lessee, who must separate it from the salt, and either let it run to waste or prepare it for the market .... Upon the whole, we are of the opinion that the petroleum which is sought to be recovered in this action was the property of the defendant below. .. .

Id., 41 Pa. at 361-62. (Emphasis ours). Thus, Kier would seem to support the proposition advanced by U.S. Steel. There exists a line of cases, however, which arguably compels a result different from that dictated by the Kier case.

Erwin v. Hoch, 7 Sad. 477, sub nom. Appeal of Erwin, 12 A. 149 (Pa. 1887) involved a lease for certain land in Berks County. The lease granted the lessee the exclusive right to dig and carry away iron ore found on the premises, as well as the right to wash the ore there if necessary. The term of the lease was fifteen years. The lessee entered into possession and began to mine and wash the ore. The residue from the washing (ocher) collected in a mud dam on the property. It was subsequently discovered that the ocher could be profitably employed in the manufacture of paint, for which purpose the lessee began to remove it from the dam. The lessor, Hoch, brought an action in equity seeking to restrain Erwin from removing the ocher, maintaining that Erwin had no right to it under the lease. The chancellor held that because the value of the residue was unknown at the time the lease was executed it could not have been within the contemplation of the parties that it pass under the lease and thus that it belonged to the landowner and not the lessee. On appeal, the Supreme Court approved the reasoning of the chancellor and affirmed the decree enjoining the lessee from further removing the ocher. Doster v. Friedensville Zinc Co., 140 Pa. 147, 21 A. 251 (1891) involved a lease of ten years for the removal of zinc and iron ores. The lessee mined only zinc ores, which ores were embedded in rock. The rock was crushed and processed to relieve it of all but 7% of the zinc. (To remove the remainder of the zinc the crushed rock would have to have been pulverized and washed. The lessee at no time contemplated doing this.) The crushed rock was then normally discarded, but some was sold for use in the building of roads or in the making of artificial stone. The lessor brought an action in equity to recover the value of the crushed rock the lessee had sold, and to enjoin him from exerting further dominion over it. In granting the petition the chancellor relied on the Erwin case for the proposition that the residue, now found to be of value as evidenced by its sale, did not pass under the lease to the lessee. The Supreme Court affirmed on the opinion of the “learned” chancellor.

It would appear on first blush that Kier is contradicted by Erwin and Doster, yet neither Erwin nor Doster overrules Kier, nor has any of the three cases been otherwise overruled. Perhaps it is however, that Erwin and Doster can be distinguished from Kier. The lease in Erwin was for a term of fifteen years and the lease in Doster was for a term of ten years, but, the lease in Kier essentially granted the lessees a fee simple determinable in the estate. The Kier brothers’ interest would last so long as they continued the operation of the salt-well. Furthermore, the oil in Kier rose naturally with the brine and must either have been barrelled or left to run to waste. On the other hand, in both Erwin and Doster, the residues in question resulted from the processing of the ores following their severance from the land. It is true that the materials comprising the residues were extracted along with the ores, but the leases contemplated that the raw ores would be processed on the premises and the residue left behind. In Doster, the chancellor wrote of the residue:

The whole was thrown away and treated as waste. All concerned were satisfied with that method of mining. It belonged and still belongs to the landowners, the same as the limestone, rock and loam and clay. The parties, when they contracted, did not contemplate that the waste left on the premises should be the property of the lessees, nor that they should pay for it.

Doster v. Friendensville Zinc Co., 140 Pa. at 152, 21 A. at 252. The distinction between the cases must lie in the fact that the oil in Kier must have been used or wasted following its extraction, but in the other cases the residue could be left upon the land, according to the terms of the leases, and used later by the landowner.

As in Kier, the coal deeds in the instant case created an estate analogous to a fee simple determinable. That is, when the coal under the surface tract runs out and when the coal owner no longer is actively mining the coal under connected or nearby tracts then the full title to land from the surface to the center of the earth reverts to the surface owner. And, as the mining of salt in Kier necessarily raised oil, instantly, the mining of the coal must necessarily result in the release of a certain quantity of coalbed gas. The coalbed gas is initially released by the process of extracting the coal, much as the oil necessarily rose with the brine in Kier. Furthermore, the coalbed gas will either be collected by the coal owner or dispelled into the atmosphere, i.e., wasted. In Erwin and Doster the leases granted the lessees the right to process the ores on the leased premises following their extraction and to leave the residue resulting therefrom behind, but there the residue would not be wasted by the failure to collect it. Reading these cases in light of the facts of the instant case, the most we can conclude is that if the coal owner reduces the coalbed gas to his possession as it is released incidental to mining the coal and removed from the mine pursuant to the right of ventilation rather than wasting it into the atmosphere, then he is entitled to its possession and the profits from its sale, if any, just as the chancellor held. Based on these cases we cannot conclude, however, that the coal owner has an absolute right to all coalbed gas in place.

5.

U.S. Steel’s final argument makes an appeal to this Court based on considerations of public policy. It is joined therein by the Keystone Bituminous Coal Association, which has filed a brief amicus curiae.

We have already held that U.S. Steel may exploit the coalbed gas released in its mining operations based both on the coal severance deeds and the logic of the Kier case. Aside from that limited holding, essentially affirming the chancellor’s conclusions of law, the cases would seem to point toward a clear victory for the landowners and their gas lessee. Indeed, Craig and Myers are of the mind that such would be the proper result in this case. See Craig & Meyers, Ownership of Methane Gas in Coalbeds, supra. Based on the legal setting and. factual background adhering at the time of the deeds’ execution, we cannot say that the parties intended title to coalbed gas to pass to the coal owners under the deeds. It appears that their intention was quite the opposite. We agree with the chancellor’s conclusion that

... it cannot be reasonably presumed that the intent of ■the purchasers of the coal was to include the purchase of coal bed [sic] gas, nor that the intent of the landowner was to include it in the sale of the coal. If any intent can be reasonably inferred, it was that the landowner intended to sell the coal to one purchaser and the [coalbed] gas and [other] gases to another.

This is not to say that U.S. Steel’s public policy argument is not an appealing one, for it cannot be argued to the contrary that public policy favors rational exploitation of energy resources with an eye to the efficient, low cost production of all those resources. However, it must also be remembered that in general equity follows the law. Under the facts of this case we are not convinced that U.S. Steel has demonstrated the legal right to coalbed gas other than that liberated during the coal mining, or its incidental procedures necessary to ensure the safety of the miners. Nor are we convinced that the equitable considerations of this case mandate a result different than the one reached under the applicable legal principles. Accordingly, the final decree of the chancellor is affirmed.

      . The chancellor below was President Judge Glenn Toothman.

      . The gaseous substance subject of the instant appeal is known by several different names, among them: “coalbed gas,” “coal gas,” “methane gas,” and “firedamp.” Like natural gas, the primary component of this gas is methane, although it also contains ethane, propane, and lesser amounts of other gases. Its chemical composition is thus nearly if not entirely indistinguishable from natural gas. We will refer to the gaseous substance as coalbed gas.

      . The deeds in question read in pertinent part:
      “All the coal of the Pittsburgh or River Vein underlying all that certain tract of land situate in Whitely and Franklin Townships, Greene County, Pennsylvania, bounded and described as follows, to wit: ....

        “Together with all the rights and privileges necessary and useful in the mining and removing of said coal, including the right of mining without leaving any support for the overlying strata and without liability for any injury which may result to the surface from the breaking of the strata or anything therein or thereon, the right of ventilation and drainage and the access to the mines for men and materials; the shafts or openings for such purposes, however, to be in the ravines or waste places upon said land and not any nearer then twenty rods of the principal buildings thereon; also the right of mining, ventilating, draining and transporting the coal of other lands through the mines and openings in and upon the lands of the parties of the first part.

        “The parties of the first part hereby reserve the right to drill and operate through said coal for oil and gas without being held liable for any damages.

      “Together with all and singular the improvements, ways waters, water courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rent issues and profits thereof; and the estate, right, title, interest, property, claim and demand whatsoever of the said parties of the first part, in law, equity or otherwise, howsoever, of, in and to the same and every part thereof.”
      (Emphasis ours.)

      . The oil and gas leases read in pertinent part:
      “Witnesseth, that the Lessor in consideration of the sum of One Dollar, the receipt of which is hereby acknowledged, and the covenants and agreements hereinafter contained, does hereby grant unto the lessee all of the oil and gas and all of the constituents of either in and under the land hereinafter described, together with the exclusive right to drill for, produce and market oil Bind gas and their constituents and of storing gas of any kind in any formation underlying the land, and also the right to enter thereon at all times for the purpose of drilling and operating for oil, gas and water, laying pipelines, erecting tanks, machinery, powers and structures, and to possess, use and occupy so much of said premise, as is necessary and convenient for said purposes and to convey the above-named products therefrom or thereto by pipelines or otherwise, said land being.... 2. ...

      3. The lessee shall deliver to the credit of the Lessor free of cost, in the pipeline to which he may connect his wells, the equal one-eighth (Vs) part of all oil produced and saved from the leased premises, and shall pay Lessor the equal one-eighth (Vs) part of all methane gas as well as for all gas and casing head gas produced and sold from the premise ....”

      (Emphasis ours.)

      . Hydraulic fracturing or hydrofracturing is the use of fluids under pressure, which fluids are forced into the well hole causing the fracturing of the target stratum. With the hydrofracturing of coal beds the fractures in the coal vein serve as conduits or channels through which the gas may flow from the coal seam to the well’s shaft.

      . U.S. Steel has also questioned several of the chancellor’s findings of fact, contending that the evidence does not support those findings. The scope of our review in such matters is well settled. A chancellor’s findings of fact will not be disturbed on appeal where there is adequate evidence in the record to support those findings. See Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979); Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977); Gilmore v. Northeast Dodge Co., Inc., 278 Pa.Superior Ct. 209, 420 A.2d 504 (1980); Kohr v. Kohr, 271 Pa.Superior Ct. 321, 413 A.2d 687 (1979). Our task is to determine whether the record contains evidence which will support the chancellor’s findings of fact, not to substitute our view of the evidence for his. See Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978); Gilmore v. Northeast Dodge Co., Inc., supra. Even meager or uncorroborated evidence will support the chancellor’s findings if the evidence is of record and properly before the court. Cf. Farmers’ Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908 (1958); Eldridge v. Melcher, 226 Pa.Superior Ct. 381, 387, 313 A.2d 750 (1973). Thus, the chancellor’s findings of fact are controlling on appeal unless it can be shown that they lack evidentiary support, or that the chancellor capriciously disbelieved the evidence, or that he abused his discretion in arriving at those findings. See Silo Realty Corp. v. Redevelopment Authority of Philadelphia, 289 Pa.Superior Ct. 67, 432 A.2d 1053 (1981); Davis v. Buckham, 280 Pa.Superior Ct. 106, 421 A.2d 427 (1980). We are not so bound as regards either inferences and conclusions reasoned from the facts, or the legal conclusions drawn therefrom; they are always subject to appellate review. See Adler v. Montefiore Hospital Ass’n of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974); McDole v.

        Duquesne Brewing Co. of Pittsburgh, 281 Pa.Superior Ct. 78, 421 A.2d 1155 (1980); Philadelphia Fresh Food Terminal Corp. v. M. Levin & Co., 239 Pa.Superior Ct. 287, 361 A.2d 886 (1976). Where the evidence is contradictory, the chancellor’s findings will be given greater weight, since he must necessarily pass on the credibility of the witnesses, even where most of the testimony is given by qualified experts. Cf. In re Jones, 432 Pa. 44, 246 A.2d 356 (1968). Our independent review of the record establishes that sufficient evidence was adduced at trial to support all the chancellor’s findings of fact. The question merits no extensive discussion.

      . Caldwell v. Fulton, 31 Pa. (7 Casey) 475 (1858) involved the construction of a deed which transferred land but purportedly granted only an incorporeal right to the coal underlying the land.
      Caldwell’s father deeded the tract over to one Greer who sold undivided moieties to Bell and Case. Bell sold his undivided moiety to McCune, whereupon McCune and Case made partition by deed. Fulton (McCune’s lessee) entered upon the tract and dug coal.
      Caldwell brought suit against Fulton seeking to recover damages for the taking of the coal which Caldwell claimed through devise from his father. The theory of Caldwell’s action was that the deed from his father to Greer granted the latter only a right to take the coal and not its title, that this right was an incorporeal hereditament and that the partition of the land by McCune and Case extinguished the incoporeal hereditament because such hereditaments are non-divisible.
      On appeal, the Supreme Court rejected the incorporeal hereditament argument for several reasons. First, it was of the opinion that coal is land and that “those hereditaments only are incorporeal which are not land.” Id. at 479. It reached the conclusion that coal is land based on the case of Wilson v. Mackreth, 3 Burrow 1824, 97 Eng.Rep. 1119 (1766) which held that an action for trespass quaere clausum fregit would lie against one who had entered another’s close, dug peat and turf and carried it away. Secondly, the Court held that the grantor had granted the whole usufruct and entire dominion over the coal to the grantee, that he could not have reserved anything in himself and that this was therefore not a mere license to take the coal. Third, the Court was not inclined to accept the incorporeal hereditament argument because the need so to classify interests in coal in Britain was based on the principle of livery of seisin, and that principle no longer held sway in Pennsylvania.
      The Court’s opinions in Caldwell (one in 1855 and the other in 1858, both printed at 31 Pa. 475 ff.), although they refer to “substrata,” do not hold that a coal deed grants a fee simple in the geological situs of the coal, despite the holding that coal ownership is a type of corporeal hereditament.

      . U.S. Steel does not claim that coal and coalbed gas are the same substance in different states of matter, and correctly not. Rather, it contends that geologically and physically they are so intimately bound up as to be essentially inseparable.

      . Indeed, one of the authorities referred to by appellees’ principal witness, a certain Professor Headless, was of the opinion that coalbed gas was gas which had migrated to the coal seam from lower strata and become trapped. Although we are not in a position to judge the acceptance of Professor Headlee’s views by the scientific community at the time of their publication, they do tend to support the chancellor’s finding that coal and coalbed gas were not generally viewed as U.S. Steel would have us believe. See Price & Headlee, Physical and Chemical Properties of Natural Gas in West Virginia, 9 W.Va. Geol. Survey_(1937).

      . The Court stated:
      The Westmoreland & Cambria case does not determine that oil and gas are not capable of ownership, even when in place.... On the contrary, in this state these matters are firmly established otherwise.

        Hamilton 272 Pa. at 102, 116 A. at 52.
      As we now know, gases, though fugacious in nature and capable of migration and expansion, do not engage in random subterranean wanderings. As Hemingway has noted, although oil and gas are capable of migration they are not free-moving so much as they are amenable to the laws of physics. See Hemingway, The Law of Oil and Gas, 12 (1971). Until a “reservoir” is pierced by drilling or disturbed by natural consequences the oil or gas remains relatively static and trapped within a particular geological formation. Id. See also Comment, Ownership of a Coalbed Gas: United States Steel Corp. v. Hoge, 82 W.Va.L.R. 1451 (1980).

      . Appellees filed no exceptions nor an appeal and thus have not challenged the chancellor’s conclusion that the coal owner has a right to the coalbed gas released through mining. Even if we were to conclude that the chancellor erred in this regard, we would be constrained to affirm his ruling, because the question is not presented to us. We consider Kier v. Peterson, supra, not so much for the question of whether appellant has the limited right expressed by the chancellor but for the question of whether appellant was the absolute right it now posits.

      . Cf. Hail v. Reed, 54 Ky. 383, 15 B.Mon. 479 (1854), which is the earliest known common-law decision dealing with the property rights in oil and gas in place. Like Kier v. Peterson, supra, it involved oil which rose in connection with the production of brine from a salt-well. The action in trover was brought by the landowner to recover 120 gallons of oil. The Kentucky Court held that trover would lie for the recovery of the oil because in this case the defendants had entered the plaintiffs close without permission, and drilled the salt-well likewise. The plaintiffs were non-suited on their trespass action, however. The Court refused to accept the defendants’ arguments that the oil was theirs by the sweat of their brows or that it became theirs once it had been severed from the land. The defendants had no right to the brine and hence also no right to the oil which rose with it.

      . But see Craig & Myers, Ownership of Methane Gas in Coalbeds, supra at 794-95. They are of the opinion that this distinction is not significant enough to overcome the fundamental disparity in the result in Kier and the Erwin and Doster cases.

      . See note 11 supra.

      . See Mutchler & Sachse, Legal Aspects of Coalbed Gas, Journal of Petroleum Technology 1861 (October, 1981). Mutchler and Sachse recommend that the maximum utilization of energy resources be considered one of the primary objectives in resolving ownership problems involving coalbed gas.

      . We must keep in mind that the issue before us is the interpretation of instruments of transfer—coal severance deeds—and not the lack of wisdom or prescience with which those deeds were drawn, or the impracticability of the transferred natural resources’ exploitation in accordance with the terms of those instruments.
      It is clear from the record that ownership of the coalbed gas did figure into the negotiation and drafting of these deeds, if only from the practice common at the time. At the time of the coal deeds’ execution “firedamp,” or coalbed gas, was not viewed as a valuable substance. But this was so because when denominated as “firedamp” the substance had a propensity for killing miners. However, it is equally clear from the record that given a different epithet, and in a different context, coalbed gas was rather routinely exploited when found in sufficient or “paying” quantities. Based on the evidence adduced at trial the chancellor found that little if any distinction was made in the gas industry at the time of the coal deeds’ execution between the gas found in coalbeds (coalbed gas) and the gas found in oil-and-gas-bearing sands (natural gas). This was primarily true because of the gases’ remarkably similar chemical compositions and b.t.u. capacities. See n. 2 supra. At the time in question, the difference in the gases’ geological generation played a paltry part in their economic exploitation. It is in this vein that the deeds must be interpreted, and not with the wisdom of Epimetheus.
      As for U.S. Steel’s invocation of the geological and generational link between coal and coalbed gas, we note that a similar nexus exists between petroleum and “natural gas.” Yet, these latter resources are systematically viewed as distinct and are routinely so dealt with. Nor is the geological association of “salts” and petroleum, as in the Kier case, more telling, for in Kier the Court held only that the lessees were entitled to the oil which rose with the brine and not to all the oil that might have been extracted.

      . We feel obliged to make the following Caveat. That is, from the date of this decision it will be necessary for landowners and potential purchasers of their oil, gas and coal rights to proceed with caution in the drafting of the applicable transfer instruments. The parties and their scriveners must be careful to include coalbed gas in their negotiations and agreements lest the failure to do so result in unnecessary and potentially costly litigation.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    450 A.2d 173
    Frank WEITZMAN and Shirley Shumsky v. Alfred and Molly ULAN, his Wife t/a New York Silk and Woolen Store, Appellants.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed Aug. 27, 1982.

      Edwin P. Smith, Philadelphia, for appellants.
    Mitchell H. Kievan, Philadelphia, for appellees.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   McEWEN, Judge:

We here review an appeal from a refusal by the Common Pleas Court to strike and/or open a judgment entered by confession upon a lease agreement for back rent. We affirm.

Alfred Ulan and Molly Ulan, appellants herein, entered into a commercial lease as lessee of the premises located at 739 South Fourth Street in Philadelphia with Anna Weitzman, lessor, on April 15,1980. The lease provided for a term of three years commencing April 15, 1980 with an option to renew for an additional two year term and contained a covenant which provided that the lessor “within the first year of this lease term will have a new roof installed on the premises.” The leáse further contained a standard confession of judgment clause empowering any prothonotary, clerk of court or attorney of any court of record to appear for the lessee in any action brought for non-payment of rent and confess judgment against the lessee.

Anna Weitzman transferred the leased premises by deed to her children, appellees Frank Weitzman and Shirley Shumsky (the nephew and niece, respectively, of appellants), on July 24, 1980. The deed was recorded in the Department of Records on July 28, 1980. Appellees notified appellants by letter dated September 23, 1980 and posted by certified mail, return receipt requested, that ownership of the leased premises had been transferred to them and requested that all future rental payments be forwarded directly to Frank Weitzman.

Appellants paid rent for the month of October, 1980 directly to appellees; however, appellees did not receive rent for the months of November and December 1980. Appellees then filed a complaint in confession of judgment against appellants pursuant to Pa. R.C.P. 2951(b) in Philadelphia Common Pleas Court seeking the unpaid rent, interest and attorney’s fee. Judgment was entered in favor of appellees in the amount of $848.40.

Appellants filed a Petition to Strike and/or Open Judgment by Confession and Dismiss Complaint on January 13, 1981 in which they claimed, inter alia: (1) that plaintiffs (appellees herein) never submitted proper documentation or verification of the assignment of the lease and of the right to confess judgment to the defendants; (2) that the judgment by confession was improperly entered since an executed assignment of that right was not attached to the complaint and; (3) that defendants (appellants herein) were current in payments to the lessor and that they had applied the rent due toward an indebtedness of the lessor to the defendants for repair of the roof to the demised premises.

The distinguished Common Pleas Court Judge Eugene H. Clarke, Jr. dismissed the petition of appellants by order dated April 22, 1981. This appeal followed.

Appellants first contend that the judgment should be opened because they have averred a valid defense which raises a factual dispute requiring resolution by a jury. They claim that there was an oral agreement between themselves and appellees’ predecessor in interest, Anna Weitzman, that the rental payments due for November and December 1980 were to be applied to the costs of the repair of the roof of the demised premises.

In order to open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); First National Bank of Pennsylvania v. Cole, 291 Pa.Super. 391, 435 A.2d 1283 (1981); Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 392 A.2d 784 (1978); Pa. R.C.P. 2959. See Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Foerst v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976). A petition to open a judgment is an appeal to the equitable powers of the court and is addressed to the sound discretion of the court; a reviewing court will not reverse the determination of the lower court absent a clear and manifest abuse of discretion. Industrial Valley Bank & Trust Co. v. Lawrence Voluck, 285 Pa.Super. 499, 428 A.2d 156 (1981); Foerst v. Rotkis, supra; Triangle Building Supplies & Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976); Cheltenham National Bank v. Snelling, 230 Pa.Super. 498, 326 A.2d 557 (1974). The standard of sufficiency a court must employ is that of the directed verdict— viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment. Industrial Valley Bank & Trust Co. v. Lawrence Voluck, supra 285 Pa.Super. at 503, 428 A.2d at 158. The petitioning party bears the burden of producing sufficient evidence to substantiate its alleged defenses. Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes Inc., supra 291 Pa.Super. at 398, 435 A.2d at 1286-1287; See Pa. R.C.P. 2959(e); American Corp. v. Cascerceri, 255 Pa.Super. 574, 580 n. 6, 389 A.2d 126, 129 n. 6, (1978); Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa.Super. 176, 181, 374 A.2d 1376, 1381 (1977). The defenses raised must be “valid” ones. Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., supra; Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977); Fidelity Bank v. Act of America, Inc., supra 258 Pa.Super, at 264, 392 A.2d at 785; First Pennsylvania Bank N.A. v. Weber, 240 Pa.Super. 593, 603, 360 A.2d 715, 721 (1976).

While there is no claim that the petition to open was not promptly filed, we are not persuaded that appellants have presented a valid defense necessitating the opening of the confessed judgment and, therefore, we shall not disturb the determination of the Common Pleas Court.

Paragraph 26 of the subject lease provides that any subsequent alteration, amendment, change or addition to the lease unless reduced to writing and signed by the parties to the lease shall be unenforceable. Appellants have not directed our attention to any subsequent written agreement. We further observe that 1) appellees never authorized the roof repair; 2) appellants never requested appellees to permit them to have the roof repaired themselves and deduct the cost of the same from rental payments; and 3) the year within which the landlord had agreed to make the subject roof repairs had not yet expired at the time appellants themselves had the work performed. We are thus precluded from finding a waiver of the prohibition of oral modification set forth in the lease, see C.I.T. Corp. v. Jonnett, 419 Pa. 435, 214 A.2d 620 (1965), which could allow us to enforce the subsequent oral agreement which appellants claim was made. Had appellants wished to modify the lease to permit them to repair the roof themselves and deduct the cost from the monthly rental payments, they should have arranged for such a modification with appellees in advance and reduced the agreement to writing.

We clearly cannot give effect to the oral agreement appellants claim they entered into with the former owner, now, after the conveyance of the premises to appellees, and, at a time when the former owner no longer has any right, title or interest in the property. Under the express written terms of the lease agreement appellants were bound to pay rent to any assignees of the lease. Appellants were on notice that the ownership of the leased premises had been transferred and that all payments to become due were to be paid to the new owners. The fact that they received notice of the property transfer is established by their payment of rent for October 1980 directly to appellees.

Appellants also allege, as a factual dispute which necessitates the opening of the judgment, that they never received proper verification of the assignment of the lease and of the right to confess judgment against them. This is a contention without substance. The assignment of the right to confess judgment as well as the assignment of the lease were concomitant aspects of the transfer of the title of the premises of which appellants received written notice and were on record notice. The deed conveying the property to appellees contained a general assignment clause giving the grantees the right to all rentals from the premises. Paragraph 20 of the lease specifically reserved to the lessor the right to enter judgment against the lessee and to enforce all the other provisions of the lease (including the right to confess judgment) to “any assignee of the lessor’s right, title and interest in his, her or their own name, notwithstanding the fact that any or all assignments of the said right, title and interest may not be executed and/or witnessed in accordance with the Act of Assembly. .. ”. It is of no consequence that there was no formal assignment of the lease following the transfer of title. “Ordinarily, where there is a change in the ownership of the reversion the new owner succeeds to the rights of the lessor.” Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Company, Inc. 265 Pa.Super. 334, 349, 401 A.2d 1333, 1341 (1979) (quoting Metropolitan Life Insurance Co. v. Associated Auctioneers, Inc., 117 Pa.Super. 242, 245, 177 A. 483, 484 (1935)); Accord, National Forge Co. v. Carlson, 452 Pa. 516, 307 A.2d 902 (1973); Botnik v. Chapkis, 166 Pa.Super. 74, 70 A.2d 401 (1950). The rights and remedies reserved in the lease held by Anna Weitzman, the former owner of the premises, inured to the benefit of appellees, the new owners, as a matter of law when the property was transferred to them, even in the absence of a contractual assignment. See, e.g., Botnik v. Chapkis, supra; Shappell v. Himelstein, 121 Pa.Super. 418, 183 A. 644 (1936); Williams et a1. v. Notopolos, 259 Pa. 469, 103 A. 290 (1918). We therefore conclude that appellants have raised no valid defenses such as would warrant opening the judgment.

Appellants further contend that since the complaint in confession of judgment did not comply with Pa. R.C.P. 2952 due to the failure of appellees to attach to the complaint a satisfactory assignment of the subject lease, the petition to strike the judgment should be granted. This contention is also without merit.

A petition or motion to strike a confessed judgment is proper only when the defect in the original judgment appears on the face of the record. Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981). Where an alleged defect in a judgment entered by confession is based upon a matter dehors the record, the proper approach is to seek to have the court open the judgment. Equibank, N.A. v. Dobkin, supra; Prestressed Structures, Inc. v. Bargain City, U.S.A., 413 Pa. 262, 196 A.2d 338 (1964); J.F. Realty Co. v. Yerkes, 263 Pa.Super. 436, 398 A.2d 215 (1979). Pa. R.C.P. 2952 does not require that an executed assignment be attached to the complaint in confession of judgment. The rule requires only that the complaint contain “a statement of any assignment of the instrument”. Such a statement was contained in paragraph 7 of the plaintiff’s complaint in which it was stated “This lease has been assigned from Anna Weitzman to Frank Weitzman and Shirley Shumsky.” We further observe that a copy of the deed which conveyed the leased premises from Anna Weitzman to appellees was attached to the complaint in confession of judgment and the deed contained a general assignment clause assigning to the grantees the rights to all rentals from the premises.

We therefore conclude that the trial court did not abuse its discretion is dismissing the petition of appellants to strike or, in the alternative, to open the judgment.

Order affirmed.

      . We further note that Pa. R.C.P. 2951 governing Methods of Proceeding in Confession of Judgment, as amended, specifically provides that a judgment may be confessed in favor of the original holder or in favor of an assignee or transferee unless the instrument expressly forbids this. There was no such prohibition in this lease. See Explanatory Notes: Pa. R.C.P. 2951.

      . Pa. R.C.P. 2951(c).


author: MONTGOMERY, Judge:

text:
    450 A.2d 647
    Louis J. TODORA, Peter A. Kuzma, Jack V. Rivetti and Leaman Young, in their own Right and on Behalf of Every other person Similarly Situated, Comprising a Class, Appellants, v. JONES & LAUGHLIN STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed March 12, 1982.
    Reargument Denied June 28, 1982.
    Petition for Allowance of Appeal Denied Nov. 16, 1982.

      Alan Frank, Pittsburgh, for appellants.
    Anthony J. Polito, Pittsburgh, for appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellants filed the instant appeal following the dismissal of their Complaint by the lower court. The Appellants commenced their action in October, 1976 as a class action in trespass, and subsequently filed three Amended Complaints. The third and final Amended Complaint stated an action in assumpsit. It was filed in June, 1978. Thereafter, the Appellants filed a Motion for Certification of the action as a class action. The lower court conducted a hearing on the motion.on July 23, 1980. By an Order dated September 15,1980, the lower court entered a final order not only denying the Motion for Certification, but also dismissing the Amended Complaint on the basis that the Appellants had not filed their action within the applicable statutory period of limitations. On this appeal, the Appellants contest the lower court’s action dismissing their claims, but do not challenge that part of the lower court order which denied their Motion for Certification of the case as a class action.

The Appellants were all former salaried employees of the Defendant-Appellee Jones & Laughlin Steel Corporation. Their final Amended Complaint asserted that they each performed services for the Appellee in excess of forty hours per week, while they were only paid for forty hours per week. In the first count, the Appellants averred that they had a right to recover damages as a result of such extra employment based upon the theory of “implied agreement”. More particularly, they alleged that they had been expressly requested by superiors to perform extra work, and in such circumstances, the Appellee impliedly agreed to compensate them in a reasonable amount for performing such services. In a second count, the Appellants advanced a similar claim on a theory of unjust enrichment. That is, they claimed that the Appellee, in requesting and receiving extra services from them, either expected or should have expected to compensate them for the benefits of the extra services rendered. Thus, Appellants averred that the Appellee was obligated to pay them the fair market value of the alleged extra services performed.

The Appellee filed an Answer to the Third Amended Complaint, and also advanced New Matter. In addition, the Appellee set forth a third section in its response, which it captioned “Other Defenses”. Under that heading, the Appellee raised the contention that some or all of the named Plaintiffs were barred from proceeding to recover wages because of the exclusivity of and/or time limitations provided in the Wage Payment and Collection Law.

This case was handled by Judge Silvestri in the lower court. In dismissing the claims of the named Plaintiffs, he accepted the Appellee’s contentions regarding the Wage Law. More specifically, he held that the Plaintiff-Appellants had no justiciable claims because none had been employed by the Appellee during a three year period of limitations immediately preceeding the filing of suit. In support of that rationale, he cited for authority his earlier decision in the case of Haft v. United States Steel, 129 P.L.J. 1 (Alleg. Co. 1980).

The Haft case, involving a factual setting similar to the instant case, is presently pending on appeal before another panel of this Court. Because the Haft appeal presents other issues, this Court exercises its discretion to initially examine the issue of the application of Wage Payment and Collection Law in the factual setting of the instant case. However, because Judge Silvestri relied wholly upon his earlier decision and reasoning in Haft to dispose of this case, we must consider the Haft situation and holding in some detail here.

In Haft, as in the instant case, a group of salaried foremen sued their steel company employer for “damages” for hours of work for which they had allegedly not been compensated. Unlike the instant case, the group of plaintiffs in Haft included not only former employees, but also some individuals still employed at the time suit was entered. The named plaintiffs in Haft also sought to represent a class composed of all other similarly situated foremen, and Judge Silvestri heard evidence regarding the question of whether a class action certification should be issued.

Judge Silvestri refused to certify the class in Haft Further, he ruled that the claims of the named plaintiffs should be limited to those which arose during a three year period prior to the commencement of the suit. In reaching that conclusion, he reasoned: (1) that the claims raised by the plaintiffs had to be regarded as claims for “wages”; (2) that the Wage Payment and Collection Law was the exclusive remedy provided for collection of wages in our Commonwealth; and (3) that the three year statute of limitations set forth therein was applicable to the plaintiffs’ claims.

It appears most logical that we initially examine the issue of whether Judge Silvestri was correct in holding that the Wage Payment and Collection Law is the exclusive remedy provided for the collection of wages in our Commonwealth. If we were to agree with Judge Silvestri on that point, we would then merely have to decide whether the Plaintiff-Appellants sought “wages”, as that term is broadly defined in the Act, and if so, whether their action was instituted within the period of limitations permitted by the Statute.

We have given careful consideration to the question of exclusivity and find that we cannot agree with the conclusions reached by the lower court. Rather, our analysis leads us to the clear conclusion that the lower court was not correct in its holding that the Wage Payment and Collection Law provides the exclusive remedy for a plaintiff seeking to collect unpaid “wages” in our Commonwealth.

Any consideration of this issue must begin with the statute itself. A detailed review of the Wage Law discloses no language which either expressly or impliedly states or suggests a legislative intent that the Act provide the exclusive remedy or procedure for collecting past due “wages” as that term is defined by the Act. Such a significant legislative intent could be and should be clearly set forth in a statute, when desired by the drafters of our laws. An example of such legislation which comes quickly to mind is the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., 77 P.S. § 1, et seq., as amended several times. That statute, like the legislation under consideration in the instant case, was enacted to provide remedies to protect individuals from adverse consequences arising in the course of employment, and is therefore highly appropriate for purposes of comparison. In Section 1, last amended December 5, 1974, P.L. 782, No. 263, 77 P.S. § 1, the legislature specified that the Workmen’s Compensation Act should “. . . apply to all injuries occurring within this Commonwealth. ...” (emphasis added). It would have been easy for the drafters of the Wage Payment and Collection Law to have included similar phrasing denoting a clear legislative intent that the statute provide the exclusive remedy in our Commonwealth for an individual seeking to recover “wages”. The absence of such language is significant. We must construe the words of the Wage Statute as they appear, and there is certainly no language in the entire Act suggesting the exclusivity of coverage found to exist by the lower court.

One additional reference to the words of the Wage Law strengthens our conclusion regarding the absence of a legislative intent to create an exclusive remedy in its provisions. As noted earlier, Section 9.1(g) is the clause which sets forth a period of limitations. It declares that no proceeding or action is to be instituted “. . . under the provisions of this act...” more than three years after the date on which such wages were due and payable. The legislature’s use of the words we have italicized above indicates clearly to us a recognition that wage claims might still be asserted other than “under the provisions of” that Act. Thus, the specific words used in the Wage Law itself further support a conclusion opposite of that reached by the lower court.

In this analysis, we also cannot ignore the history of litigation in our Commonwealth since the enactment of the Wage Payment and Collection Law over twenty (20) years ago. It would appear from the dearth of reported decisions, both from our appellate and lower courts, that the Wage Law has been the subject of infrequent use by litigants in our courts. During the same long period, our Commonwealth’s courts have entertained scores, if not thousands of cases brought by individuals, seeking remuneration for services performed, which were not filed pursuant to the provisions of the Wage Payment and Collection. Law. In the relatively recent case of Pulli v. Warren National Bank, 488 Pa. 194, 412 A.2d 464 (1979), our Supreme Court noted that one could collect for the reasonable value of services performed for another by specially pleading for the same in an action based on a theory of quantum meruit. This history leads to two separate conclusions. First, if it had intended that the Wage Payment and Collection Law provide the sole and exclusive remedy for individuals seeking wages, the legislature would have seen fit to enact changes in the Act to make such intent clear, in view of the experience of the abundance of litigation based upon different grounds brought by individuals seeking to recover such wages after the passage of the 1961 Wage Law. Second, in light of the number of such cases which were brought, it could have been expected that at least one court, and certainly our Supreme Court, would have long ago recognized the exclusivity of the Wage Law and dismissed claims not raised under its provisions, if such exclusivity were intended. The fact that no court reached such a conclusion in over twenty (20) years of litigation leads one to strongly question the holding of the lower court on that point.

We also believe that the application of fundamental principles of statutory construction would preclude us from reaching the same finding as the lower court in this instance. It is well-established that one has a right arising from the common law to recover, in assumpsit, for services performed for another at his request. See Roberts v. Swift, 1 Yeates 209, 1 Am. Dec. 295 (1793). Our Supreme Court has held that in the absence of an express declaration, the law presumes that a statute is not intended to change the common law. See Buradus v. General Cement Products Co., 159 Pa. Superior Ct. 501, 48 A.2d 883 (1946) [especially the discussion therein at footnote 1], decision affirmed at 356 Pa. 349, 52 A.2d 205 (1947); Szilagyi v. City of Bethlehem, 312 Pa. 260, 167 A. 782 (1933). Since there is obviously no express declaration in the Wage Law that it was intended by its drafters to change or supplant any common law right of action, we are required to presume the absence of any such change.

The maxim of construction relied upon above should not be confused with the rule that statutes in derogation of the common law, enacted finally after September 1, 1937, are to be liberally construed. See Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1928. Even a liberal construction of the 1961 Wage Payment and Collection Law does not yield any conclusion favoring a finding that it comprises the sole and exclusive remedy for one seeking compensation for work performed in Pennsylvania. In fact, quite the opposite is true. In footnote 6, supra, we set forth the extremely broad definition of the term “wages” in the Law. As noted, the definition covers all earnings of an employee, including those determined by the task performed. The term “Employer” is also broadly defined in § 2.1, and includes: “.. . every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.” Since we are required by statute to grant these definitions a liberal construction, the tremendous impact and far-reaching implications of Judge Silvestri’s holding on our existing law becomes readily evident. If valid, that holding would, among other results, virtually eliminate the well-established statutes of limitations in a wide variety of assumpsit and other types of cases where wages were claimed. For example, the Wage Payment and Collection Law could be asserted to cover a situation where one enters a written contract to have another perform any service for him in our Commonwealth. Under the lower court’s exclusivity holding and the mandate that the Statute in issue be liberally construed, all such disputes would be governed by a “new” statute of limitations of only three years. Clearly, such a result was never intended by the legislature.

Our holding regarding the issue of exclusivity makes it unnecessary to discuss the other conclusions reached by Judge Silvestri regarding the Wage Payment and Collection Law. As discussed earlier, the Appellants have not appealed the lower court’s denial of class action certification. We must remand this case to the lower court for further proceedings, but do so with the specific note that our decision should not be construed in any way as a commentary regarding the validity or invalidity of the other procedural or substantive claims raised below by the Appellants.

Reversed and remanded to the lower court for further proceedings. Jurisdiction is not retained.

      . Of course, their final Amended Complaint also included allegations supporting the request that they be granted the right to proceed as a class, representing themselves and all other individuals similarly situated. As noted' earlier, the denial of class certification is not raised as an issue on this appeal.

      . Act of July 14, 1961, P.L. 637, § 1, et seq., 43 P.S. 260.1, et seq.

      . No. 1003 Pittsburgh, 1980 [J-887 (1981) ].

      . Unlike the instant case, the lower court’s denial of class certification is raised as an issue on appeal before this Court in Haft.

      . The three year statute of limitations is set forth in Section 9.1(g) [43 P.S. § 260.9a(g) ] of the Law, which provides that: “No administrative proceedings or legal action shall be instituted under the provisions of this act for the collection of unpaid wages or liquidated damages more than three years after the day on which such wages were due and payable....”

      . The Wage Payment and Collection Law, in Section 2.1a, [43 P.S. § 260.2a] defines “wages” and states: “ ‘Wages’ includes all earnings of an employe, regardless of whether determined on time, task, piece, commission or other method of calculation. The term ‘wages’ also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employes’ pay by the employer.”

      . Prior versions of the same section used similar language in stating the coverage of the Act.

      . In further proceedings in this case, the lower court may well be faced with the question of whether a six year or four year statute of limitations applies. See the Act of March 27, 1713, 12 P.S. § 31 and see and compare 42 Pa.C.S.A. §§ 5525 and 5527.

      . Albeit, unrecognized by any other court since 1961.

      . Of course the applicable statutes of limitations are not the only difference between a standard assumpsit action and one initiated pursuant to the provisions of the Wage Payment and Collection Law. If that Act provided nothing other than a shorter statute of limitations, it would be unlikely that its coverage would ever be sought by a wage claimant. As is evident from even a cursory review of the Act’s provisions, the legislature obviously created more than a different statute of limitations in the passage of that legislation. Among the many beneficial provisions of the Law we note provisions allowing for: (1) an employee or employees to designate an agent to maintain an action on his or their behalf [§ 9.1(b); 43 P.S. § 260.-9a(b) ]; (2) an action to be instituted by the employees’ labor organization [9.1(b); 43 P.S. § 260.9a(b)]; (3) the claim to be reported to the Secretary of Labor and Industry, who may in turn pursue the claim on behalf of the employee or employees [§ 9.1(c); 43 P.S. § 260.9a(c)]; (4) the Secretary of Labor and Industry to pursue collection of penalties if payment of the claim is delayed, or to require bond or security to be posted by the employer for the total amount of the claim [§ 9.1(f) and § 7; 43 P.S. §§ 260.9a(f) and 260.10] -It is clear that in the enactment of this Law, the legislature provided for more than a mere change in the time limit for filing a claim for unpaid wages. Rather, in establishing a shorter period of ■ limitations, the drafters of this Act merely indicated an intent that litigants seeking the unusual benefits of its provisions file their claims under the Act in a more prompt manner than is permitted in the more common assumpsit action.

      . Of course, since the denial of class certification was not timely raised on this appeal, further consideration of that part of the lower court’s order is now foreclosed.

      . We would feel neglectful if we failed to note that the reversal in this case did not result from capable efforts by the Appellants’ attorneys, but rather from our own concern regarding the merits for the exclusivity issue, which was barely raised by Appellants’ counsel. The briefing efforts by Appellants’ counsel can only be described as inferior.


author: JOHNSON, Judge:

text:
    450 A.2d 651
    COMMONWEALTH of Pennsylvania v. Anthony EBERHARDT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1981.
    Filed June 25, 1982.
    Reargument Denied Oct. 7, 1982.

      G. William Bills, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

Appellant was found guilty, following a non-jury trial, of Resisting Arrest and placed on one year probation. On appeal, he raises two issues: (1) that the lower court erred in denying his motion for demurrer because the Commonwealth failed to prove an essential element of the crime, i.e., a lawful arrest, and (2) that the evidence was insufficient to support the verdict.

Because of our disposition of this case, we need only consider the second issue, concerning the sufficiency of the evidence to sustain the verdict. The test is whether, reading the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the Commonwealth has proven all the elements of the offense beyond a reasonable doubt. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).

Reading the evidence in the light most favorable to the Commonwealth, the facts established at trial are these. The incident occurred at the home of the appellant. Three Pittsburgh police officers, in possession of an arrest warrant for appellant, went to his residence and were admitted into the home by appellant’s brothers and sisters. A search of the second floor revealed appellant lying underneath a bed. After the officers removed appellant from underneath the bed, he began to scuffle with them, claiming he was not Anthony Eberhardt. The scuffle proceeded into the living room and then downstairs into the dining room. During the scuffle, much furniture was overturned and one of the officers sustained a bruise on his forearm. Appellant, finally breaking free, darted to the third floor of the home, exited through a window onto a porch, and successfully fled the area. Three days later, appellant was located on the Northside of Pittsburgh and was placed under arrest, without incident, by police officers.

The statute on resisting arrest, 18 Pa.C.S.A. § 5104 states: § 5014. Resisting arrest or other law enforcement A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
Appellant was charged, in the information, as follows: The actor, with the intent of preventing a public servant, namely, Pittsburgh Police Officer Fred Wolfe from effecting a lawful arrest for burglary, theft, receiving stolen property and conspiracy created a substantial risk of bodily injury to the said public servant by knowingly, wilfully and forcibly obstructing, resisting and opposing the said officer in violation of Section 5104 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 5104.

This charge goes only to the first of the two disjunctive provisions found in § 5104.

This court in Commonwealth v. Rainey, 285 Pa.Super. 75, 426 A.2d 1148 (1981), reversed and discharged the defendant on a conviction of resisting arrest due to insufficient evidence. In Rainey, two Harrisburg police officers found the defendant lying on the floor of a vacant apartment in an inebriated condition. One officer escorted the defendant to a waiting police van and upon reaching it, defendant tried to break away. Defendant’s conduct consisted of wriggling, squirming and shaking himself violently in an attempt to free himself from the officer’s grasp. One officer struck the defendant on the head with his nightstick and another officer grabbed him by the throat. It eventually required three officers to subdue the defendant but the officers admitted that at no time did the defendant strike or kick anyone, only that he tried to squirm and twist his way free of their grasp. Based on this conduct, the court held the evidence was insufficient to convict defendant of resisting arrest, as defined by section 5104.

The court in Rainey refers to section 208.31 of the Model Penal Code (Tent. Draft No. 8), pp. 128-29 as its primary source of authority. The court also cites Commonwealth v. Meo, 233 Pa.Super. 483, 334 A.2d 748 (1975), which involved a defendant charged with resisting arrest under the Act of June 24,1939, P.L. 872, § 314,18 P.S. § 4314, which differed substantially from the current section 5104 of the Crimes Code. The former section sets forth specific factual instances in which the crime of resisting arrest would apply. The language now found in section 5104 is not identifiable anywhere in the former section. We will therefore not place any reliance on Commonwealth v. Meo, supra, for support.

It can hardly be said that a substantial risk of bodily injury was created for anyone during the incident of the instant case. While furniture was overturned and one of the officers sustained a bruise on his arm, appellant’s actions were only attempts to escape and not an aggressive assertion of physical force by appellant against the officers. At no time did appellant strike or kick anyone, he only attempted to free himself from the officers’ grasps.

It also cannot be argued that appellant could be found guilty of the second part of section 5104, namely, employing means justifying or requiring substantial force to overcome the resistance, since appellant was not charged with this part of section 5104 in the information.

Therefore, this court is reluctantly bound to apply the Rainey court’s analysis and hold that the evidence in the instant case was insufficient to sustain the verdict. We must qualify this holding, however, with the recognition that reliance on Commonwealth v. Meo, supra, is misplaced, as discussed supra.

For the foregoing reasons, we reverse the judgment of sentence and discharge appellant.

WIEAND, J., dissents.

      . 18 Pa.C.S.A. § 5104.


author: WIEAND, Judge:.

text:
    450 A.2d 653
    COMMONWEALTH of Pennsylvania v. Shawn Preston KETNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed July 2, 1982.
    Reargument Denied Sept. 30, 1982.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.

      James L. Weisman, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:.

Shawn Preston Ketner was charged with rape. The jury which heard the criminal action commenced its deliberations on December 13, 1979, at 10:30 o’clock, A.M. Twenty-seven hours later, at 1:30 o’clock, P.M. on December 14, 1979, the foreman sent a note to the trial judge indicating that the jury had been deadlocked since 9:00 o’clock, P.M., the previous evening. The trial judge brought the jury into the courtroom and after interrogating each juror concluded that the deadlock was hopeless and declared a mistrial. Ketner then filed a motion to quash the information on grounds that another trial would violate principles of double jeopardy. After the motion had been denied, this appeal followed.

Appellant argues that the trial judge acted improperly in terminating his trial because one of the jurors was equivocal about the impossibility of the jury’s reaching a unanimous verdict. There is no merit in this argument.

It is well settled that when, without defense consent, a jury is discharged for failure to reach a verdict, retrial is permissible if the discharge was manifestly necessary. Commonwealth v. Santiago, 492 Pa. 297, 301, 424 A.2d 870, 872 (1981). See also Arizona v. Washington, 434 U.S. 497, 509-10, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 730 (1978); Commonwealth v. Bartolomucci, 468 Pa. 338, 345, 362 A.2d 234, 238 (1976). The length of time that a jury should deliberate is not for the jury to determine. Rather, this decision is best left to the discretion of the trial judge. Commonwealth v. Sullivan, 484 Pa. 130, 133, 398 A.2d 978, 979 (1979); Commonwealth v. Campbell, 445 Pa. 488, 495-96, 284 A.2d 798, 801 (1971). The preferable practice in such cases, as appellant suggests, is to ask each juror if he or she agrees that a hopeless deadlock exists which cannot be resolved by further deliberations. Commonwealth v. Santiago, supra 492 Pa. at 303, 424 A.2d at 872; Commonwealth v. Bartolomucci, supra 468 Pa. at 348 n.5, 362 A.2d at 239 n.5; United States ex rel. Webb v. Court of Common Pleas of Philadelphia, 516 F.2d 1034, 1035 (3d Cir. 1975). However, there is no rule requiring the members of a jury to agree unanimously that their deadlock is hopeless before a mistrial can be declared.

In Commonwealth v. Sullivan, supra, the jury had deliberated “from 1:30 to 9:30 p. m. on August 13, 1975, and from 9:45 a. m. to 4:00 p. m. the next day, before telling the court it was deadlocked. The court instructed it to continue its deliberations. The jury did so until 10:15 p. m. and again advised the court that it was deadlocked. The court instructed the foreman to determine whether the jurors thought a verdict could be reached by further deliberation. Eight members of the jury believed that no verdict could be reached and the court then discharged the jury.” The Supreme Court held unanimously that under such circumstances the defendant’s protection against double jeopardy had not been violated.

Similarly, in Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978), eleven jurors, after deliberating twelve hours, expressed the opinion that there was no reasonable probability of reaching a verdict. One juror felt that a verdict would ultimately be reached. These circumstances, it was held, amounted to “manifest necessity” for purposes of double jeopardy and permitted a second trial.

Appellant’s reliance upon the decision in United States ex rel. Webb v. Court of Common Pleas of Philadelphia, supra, is misplaced. In that case the trial judge, after six and one-half hours of jury deliberation, raised the issue of deadlock sua sponte and declared a mistrial because of a hung jury after having interrogated only the foreman regarding the state of the jury’s deliberations. These circumstances, a majority of the court held, were inadequate to constitute “manifest necessity” for terminating deliberations. Another trial, therefore, would have violated double jeopardy considerations. Although the majority did suggest in its opinion that there was no recorded evidence that all members of the jury had agreed with the foreman, it seems clear that the Court did not intend thereby to impose a mechanical standard of unanimity among the jurors before manifest necessity existed for declaring a mistrial. Indeed, the majority expressly said: “Questions regarding retrial after the discharge of a jury without a verdict are not to be decided by a rigid application of mechanical formulae.” Id. at 1043. Moreover, as we have already observed, the existence of manifest necessity to declare a mistrial because of a jury’s inability to reach a verdict is for the trial court to determine, not the jury.

In the instant case, there was no abuse of discretion in the trial court’s determination that “manifest necessity” existed for declaring a mistrial. It follows that considerations of double jeopardy did not require that the information be quashed.

Order affirmed.