Burke v. Pittsburgh Limestone Corp.

• Decision Date: 17 November 1953
• Citation: 375 Pa. 390,100 A.2d 595
• Parties: BURKE et ux. v. PITTSBURGH LIMESTONE CORP. et al.
• Court: Pennsylvania Supreme Court

Page 595

100 A.2d 595

375 Pa. 390

BURKE et ux. v. PITTSBURGH LIMESTONE CORP. et al.

Supreme Court of Pennsylvania.

Nov. 17, 1953.

Rehearing Denied Nov. 30, 1953.

Charles E. Harrington, Robert E. Ashe, H. H. Heilman, Jr., Kittanning, for appellant.

Harry C. Golden, kittanning, for Pittsburgh Limestone Corp., now U. S. Steel Corp.

McCullough & House, Ward McCullough, Kittanning, Howard R. Eulenstein, Pittsburgh, for James H. Kerr, Admr. of Estate of Mary Kerr, deceased, and Potter Title & Trust Co., Guardian of James B. Kerr, a minor.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

This is a proceeding for a declaratory judgment. We have decided to accept such proceedings even though under the facts a common law action could have been brought. See Philadelphia Manufacturers Mutual Fire Insurance Co. v. Rose, 364 Pa. 15, 70 A.2d 316.

In 1912 I. E. Anthony and wife, being the owners of 50 acres of land in Armstrong County, 'granted, bargained, sold, let and leased' to Pittsburgh Limestone Company Ltd. all the limestone under 50 acres of land, with, inter alia, the right to mine and remove that mineral. In consideration thereof the company agreed to pay royalty of one cent per long ton with a minimum of $12.50 per quarter. ¹

The title of the grantee became vested in Pittsburgh Limestone Corporation; and the title of the grantors, subject to the contract, became vested in W. J. Burke and wife, who, by separate conveyances, also obtained the right to receive the royalties thereon.

In October, 1935, James Croyle had a judgment against the plaintiffs, Burke and wife, which was admittedly a lien on the real estate of the Burkes. A fieri facias was issued on the judgment and the 50 acres were levied upon. There was no special writ or levy in the sheriff's sale other than the ordinary fieri facias. In 1935 the sheriff sold the 50 acres to Mary Kerr, and gave her a deed for the land. Later Mary Kerr sued the Pittsburgh Limestone Corporation for royalties then due. The corporation paid the money into court and an interpleader was framed in which Burke and wife were plaintiffs and Mary Kerr defendant. The issue was tried by a judge without a jury, judgment was entered for the defendant, and the plaintiffs appealed. On appeal to the Superior Court the judgment of the court below was affirmed. See Burke v. Kerr, 142 Pa.Super. 37, 15 A.2d 685.

The opening paragraph of the opinion of the Superior Court stated: 'This is an interpleader framed by the court below to determine to whom royalties due from the operator of a limestone quarry should be paid.'

The plaintiffs took an appeal to the Supreme Court which, on April 14, 1941, affirmed on the opinion of the Superior Court. Burke v. Kerr, 341 Pa. 304, 19 A.2d 382.

Thenceforth Mary Kerr or her administrator and the guardian of an infant son collected the royalties. On May 12, 1943, the Supreme Court handed down an opinion in Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227, on a somewhat analogous situation, and in the opinion stated that the holding in Burke v. Kerr, 142 Pa.Super. 37, 15 A.2d 685, affirmed in 341 Pa. 304, 19 A.2d 382, and other decisions was out of line with the rational foundation of its decisions; but said that, because of the principle of stare decisis, Burke v. Kerr, supra, Coolbaugh v. Lehigh & WilkesBarre Coal Co., 213 Pa. 28, 62 A. 94, 4 L.R.A.,N.S., 207, and Gallagher v. Hicks, 216 Pa. 243, 65 A. 623, will not be overruled, and then added in 347 Pa. at page 302, 32 A.2d at page 234: 'These three decisions are limited to the holding that the grantor in such a lease retains only a sufficient interest in the thing leased to subject the 'purchase money' to be paid him for it to the lien of a judgment against him.'

On May 25, 1950, W. J. Burke and wife petitioned for the instant declaratory judgment against Kerr, Administrator of Mary Kerr et al., contending, inter alia, that since Smith v. Glen Alden Coal Co. the rule of law was changed and the plaintiffs were entitled to the royalties. They were met by a plea of res judicata based on the judgment rendered in Burke v. Kerr, 142 Pa.Super. 37, and 341 Pa. 304. The argument of the appellants confuses the rule of stare decisis, law of the case, and res judicata.

Stare decisis simply declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different: Heisler v. Thomas Colliery Co., 274 Pa. 448, 452, 118 A. 394, 24 A.L.R. 1215; Monongahela Street Railway Co. v. Philadelphia Co., 350 Pa. 603, 617, 39 A.2d 909. As to the doctrine of stare decisis, the Supreme Court in Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227, stated that Burke v. Kerr, 142 Pa.Super. 37, 15 A.2d 685, Id., 341 Pa. 304, 19 A.2d 382, would not be overruled because of the principle of stare decisis.

'The doctrine of 'the law of the case' is that, when an appellate court has considered and decided a question submitted to it upon appeal, it will not, upon a subsequent appeal on another phase of the same case, reverse its previous ruling even though convinced that it was erroneous. * * * It is not, however, inflexible. It does not have the finality of the doctrine of res judicata. 'The prior ruling may have been followed as the law of the case, but there is a difference between such adherence and res adjudicata. One directs discretion; the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.' Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283. The rule of 'the law of the case' is one largely of convenience and public policy, both of which are served by stability in judicial decisions * * *. Thus there is an abundance of authority to the effect that where a prior decision is palpably erroneous, it is competent for the court, not as a matter of right but of grace, to correct it upon a second review where no wrong or injustice will result thereby, where no rights of property have become vested, where no change has been made in the status of the parties in reliance upon the former ruling, and where, following the decision on a former appeal, the court in another case has laid down a different rule either expressly or by necessary implication overruling the previous decision.' In re Reamer's Estate, 331 Pa. 117, 122, 123, 200 A. 35, 37, 119 A.L.R. 589.

The doctrine of res judicata rests on public policy and on hardship to the individual that he should be vexed twice for the same cause. In Hochman v. Mortgage Finance Corporation, 289 Pa. 260, 137 A. 252, it was held that the doctrine should receive a liberal construction and should be maintained and applied without technical restrictions. A final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies, on the same cause of action. Identity of the thing sued for, the causes of action, of the parties to the action, and of the quality or capacity of the parties suing or sued, is essential to the application of the doctrine: Fisher Building Permit Case, 355 Pa. 364, 367, 368, 49 A.2d 626; Page v. Kegel, 127 Pa.Super. 246, 193 A....