Patton v. Republic Steel Corp.

• Decision Date: 26 April 1985
• Parties: Francis D. PATTON and Sandralee L. Patton, His Wife, Appellants, v. REPUBLIC STEEL CORPORATION, a New Jersey Corporation; Marcellus C. Schwartz and Blanche R. Schwartz, His Wife; and Lawyers' Abstract Company, a Pennsylvania Corporation, Appellees.
• Court: Pennsylvania Superior Court

Page 411

492 A.2d 411

342 Pa.Super. 101

Francis D. PATTON and Sandralee L. Patton, His Wife, Appellants, v. REPUBLIC STEEL CORPORATION, a New Jersey Corporation;

Marcellus C. Schwartz and Blanche R. Schwartz, His

Wife; and Lawyers' Abstract Company, a

Pennsylvania Corporation, Appellees.

Superior Court of Pennsylvania.

Argued Sept. 27, 1983.

Filed April 26, 1985.

Jay N. Silberblatt, Pittsburgh, for appellants.

Donald D. Saxton, Jr., Washington, for appellees.

Before BROSKY, McEWEN, and BECK, JJ.

BECK, Judge:

This is an appeal from an order granting the preliminary objections of appellee Republic Steel Corporation ("Republic") and dismissing the complaint of appellants, plaintiffs below, against Republic. For the reasons stated below we reverse and remand.

In November 1977, appellant Francis D. Patton purchased a tract of land in West Deer Township, Allegheny County, from defendants Marcellus and Blanche Schwartz. ¹ Mr. Patton erected a single-family dwelling on the property which was completed in February 1980. He then married Sandralee L. Patton, and the couple resided in this dwelling. Republic's Russellton bituminous coal mine underlies the Pattons' property. The Pattons allege that Republic commenced and/or recommenced mining operations "on or about October of 1980 to April of 1981" (Complaint, p 11). In March 1981, appellants' land began to shift and subside, causing damage to their residence.

Appellants subsequently brought the instant action against Republic and the other defendants. Their complaint alleged, inter alia, that the subsidence damage to their home had been caused by Republic's negligence. Appellants further alleged that Republic was liable to them because it had failed to comply with the notice provisions of the Bituminous Mine Susidence and Land Conservation Act, Act of April 27, 1966, P.L. 31, 52 P.S. §§ 1406.1 et seq. ("1966 Act").

Republic's rights to the coal in question are traceable to a 1918 deed from George and Ida Fechter to Ford Collieries, Inc. ("the 1918 deed"). This deed granted Ford Collieries ownership of the coal itself "TOGETHER with the right of the party of the second part [Ford Collieries], its successors or assigns, to mine out and remove all coal free from all liability for damages done the surface or injury of any sort arising from the mining and removal of all said coal." There are three separate estates inherent in a tract of land: the surface, mineral and subjacent support estates. The 1918 deed conveyed to Ford Collieries two of the three estates inherent in the tract of land, namely the estate in the coal itself and the estate of subjacent support. The Fechters retained only the surface estate. See Klein v. Republic Steel Corporation, 435 F.2d 762 (3rd Cir.1970); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Atherton v. Clearview Coal Co., 267 Pa. 425, 110 A. 298 (1920); Scranton v. Phillips, 94 Pa. 15 (1880).

Republic argues that the 1918 deed by its terms relieves them of any liability. While we agree that by the terms of the deed, appellants have no general property interest against Republic in subjacent support of their land, appellants' claims are not based on the 1918 deed. Rather, they are statutory in nature.

Appellants claim that Republic is liable to them by virtue of the Act of July 2, 1937, P.L. 2787, 52 P.S. § 1407 ("1937 Act"), which makes it unlawful for an operator to conduct mining operations in such a negligent manner as to cause the caving in, collapse, or subsidence of a dwelling, and section 1406.10 of the 1966 Act, which imposes on mine owners and operators a duty to notify affected surface landowners of the commencement or recommencement of mining operations.

Republic's preliminary objections alleged that the complaint failed to state a claim on which relief can be granted, and further alleged that the 1937 Act and section 4 of the 1966 Act, 52 P.S. § 1406.4, are unconstitutional because they work a taking of property without just compensation.

The trial court granted Republic's preliminary objections and dismissed appellants' complaint. In its opinion, the court stated that the reason for its decision was that appellants had no remedy under the 1966 Act. Appellants argue that the court erroneously interpreted the 1966 Act. In the alternative, appellants maintain that they should be permitted to proceed on their negligence claim based on the 1937 Act even if they have no claim under the 1966 Act.

With respect to the 1966 Act, the crucial issue is whether the statute obligated Republic to notify the Pattons of its mining activities. It is undisputed that Republic sent a notice pursuant to § 1406.10 of the 1966 Act to the Schwartzes, appellants' predecessors in title, in 1967. Appellants contend that Republic also had a duty to notify them of the recommencement of mining after they acquired the subject property. ²

In holding that Republic had no duty to inform appellants of its intent to mine pursuant to § 1406.10 of the 1966 Act, the trial court's opinion contravenes the language and policy of the statute, and deprives appellants of the rights which the legislature intended to secure for them.

It is axiomatic that legislative intent is our touchstone in interpreting a statute. 1 Pa.C.S. § 1921(a); Appeal of Neshaminy Auto Villa Ltd., 25 Pa.Commw. 129, 358 A.2d 433 (1976). In enacting the Bituminous Mine Subsidence and Land Conservation Act, the legislature stated clearly its goals, policies, and intentions. In section 3 of the 1966 Act, 52 P.S. § 1406.3, the legislature stated that the protection of land and structures from subsidence caused by subsurface bituminous mining is "related to the economic future and well-being of Pennsylvania" and "necessary to the safety and welfare of the people." The legislature further found that "[i]n the past, owners of surface structures have not in many instances received adequate notice or knowledge regarding subsurface support, or lack thereof, for surface structures, and therefore the State must exercise its police powers for the protection of the structures covered herein." 52 P.S. § 1406.3(6).

To remedy the stated evils and accomplish its stated policy goals, the legislature then set up a statutory scheme with four key provisions relating to the rights of surface landowners and the duties of mine operators to notify landowners of their activities:

(1) Automatic protection against subsidence damage for residences, cemeteries and certain other noncommercial structures in place when the Act became effective in 1966 (§ 1406.4);

(2) The right of landowners to purchase protection for structures not covered by § 1406.4, either because they are not of a type listed in that section or because they were erected after 1966 (§ 1406.15);

(3) The duty of the mine owner to give notice to the record surface owner of its intent to commence or recommence mining six months before doing so (§ 1406.10); and

(4) The duty of the grantor of the surface estate to certify whether the land has a right of protection against subsidence, and if no such right attaches, to notify the grantee that he may purchase such protection from the mine owner (§ 1406.14).

This case involves the duty to notify under § 1406.10. Appellee Republic maintains that it did all the statute required of it when it gave notice to appellants' predecessors in title in 1967. Specifically, Republic contends that it had no duty upon recommencing mining operations in 1980 to notify appellants, who had acquired the overlying land three years earlier, at a time when it appears that there were no ongoing mining operations. The trial court agreed, holding that the word "recommenced" in § 1406.10 referred to the effective date of the 1966 Act and applied only to mines which were existing but dormant at that time. Appellee Republic seems to suggest that we go even further and effectively read the word "recommenced" out of the statute on the grounds that subsequent purchasers receive sufficient notice from their grantors and that notifying surface landowners each time mining is recommenced would be too burdensome on the mine owners.

We find neither the trial court's interpretation nor Republic's suggested interpretation satisfactory. The trial court's construction finds no support in the language of § 1406.10, which does not include mention of the effective date, a fact which is telling because other provisions of the statute do contain clear references to the effective date. Where the legislature includes specific language in one section of a statute and excludes it from another, it should not be implied where excluded. Pennsylvania Agricultural Cooperative Marketing Association v. Ezra Martin Co., 495 F.Supp. 565 (M.D.Pa.1980). Republic's position is contrary to the hornbook principle of statutory construction that all words and provisions of a statute must be given effect, because the General Assembly is not presumed to have intended them as mere surplusage. 1 Pa.C.S. § 1922; Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984). Its effectively reading the word "recommenced" out of the statute is therefore not a correct interpretation of the statute.

These principles require us to interpret the statute so as to impose on Republic a duty to notify the Pattons when it recommenced mining. Section 1406.10 provides that "every owner, operator, lessor or lessee ... or other person in charge of ... any bituminous coal mine or mining operation presently open, or hereafter opened or reopened " (emphasis added) shall give notice of the intent to commence or recommence mining. A reasonable reading of this section indicates that the General Assembly intended to impose the duty to notify surface owners of the commencement or recommencement of mining on the owners or operators of all bituminous mines.

The trial court held, and Republic argues before us (Appellee's Brief at...