*1 tered for Supreme direction Mr. Court, Justice speaking said: Court, Fell, . “. . The case was ended the common pleas by of entry of pursuance of the order this and could be Court, that court for opened by any The most liberal rule purpose. as to time within jurisdiction of be question may raised would not sanction its raised in that court after final adjudication on juris- review.”. Here the diction was raised this Court and determined. A lower court power modify, alter, amend, set aside or manner any disturb or from depart judgment of the court reviewing as to de- any matter cided on appeal. See Am. Appeal and Jur., Error, p. any Under other §1237, would rule, litigation finality and respect orderly never cease, proc- overcome by esses law chaos and contempt. trial is enough. “One issue ‘The principles of judicata apply questions jurisdiction res as well jurisdiction to other as well to of the sub- issues,’ parties.”: matter as of the ject Treinies v. Sunshine et U. Co. S. Johnson v. Mining al., 66; Muelberger, U. S. 581. The court refused to properly below entertain the and therefore the is dis- appellants’ petition appeal appellants. missed at cost Mr. Justice Musmanno dissents. Appellant, v. Smith.
Boron, *2 C. J., Before Steen, November Argued Musmanno and Ar- Bell, Stearns, Chidsey, Jones, JJ. nold,
Sebastian 0. with him Walter M. Swoope, Pugliese, F. Cortez F. Cortez Bell, Silber- Sr., Bell, Jr., Bell, blatt <& Swoope, appellant.
Joseph S. with him M. Ammerman, John Urey, Milcesell, Donald R. Milcesell and Ammerman & Urey, for appellees.
Opinion Mb. Justice 4, 1955: Jones, both of law raised on this are questions appeal procedural treat substantive. we shall Logically, first with the matter procedure. a recital However, of material facts is essential to an understanding all of the problems presented. M.
Joseph became the lessee Boron, plaintiff, *3 of certain coal of lands the under defendants written lease executed on for January a term of ten 7, 1942, years. The lease conferred on the lessee the to right mine and the coal at either of fixed roy- two alty prices upon whether the coal was (depending mined the stripping method or the drift method) with a prescribed annual minimum royalty payable in monthly installments. The lease also conferred the lessee “the and right privilege ... to the renew same for a further term of ten (10) years at the ex- piration of the year ten term provided herein for. Pro- viding . . '. shall the or their lessors, [the lessee] give Alta L. agent, six Smith, (6) months’ written notice to prior. the of expiration the term herein provided for of his desire and' intention to renew this lease.”
The term of the lease expired without having writ- ten notice the given lessors of the lessee’s desire and to lease for anothr ten-year repossessed term, themselves of the coal and made a lease property thereof to other persons. More than a year the expiration date of the He the present equity. Boron instituted suit from inter- enjoin to thereby sought Jan- under the lease of with his alleged rights fering an account- damages and demanded uary 7, 1942, that In his he averred lease bill of ing. complaint, ten- for another renewed January of had been 7, 1942, before “That said in the manner: year following said lease set renewal of time forth said with Lewis of renewal was discussed to the one the lessors. Lewis Smith stated of Smith, re- other lessors consent that a formal would be no need to give newal there He averred notice of the renewal.” further written lessors’ agent, he had check Alta paid by first monthly royalty $50 January February 7, 1952, month, viz., 7, 1952, ten term of years. Notably, renewed allegedly aver in Lewis Smith any authority failed to from his co-lessors a writ- change requirement did that he had ten renewal. nowhere he aver And, of his served on the lessors written notice desire intention to i*enew the lease required by preliminary filed
complaint, principally grounds plain- notice for the re- alleged tiff did not plead or January 7, authority of the lease newal *4 anyone to to renew the lease by parol from that for agent the check the defendants’ $50 ac- plaintiff received from the was January, for De- of the due payment royalty tually expired last month of as cember, 1951, letter The shown own of transmittal. plaintiff’s overruled the with preliminary court leave to over. the defendants answer In their answer to to alia, defendants denied, inter that the merits, lease of or that 7,1942, ever been renewed payment January, to Alta Smith in $50 payment royalty of the minimum for the first They month of ra enewal term. did admit, however, plaintiff days that expira- was entitled to 90 tion of property the term within which to remove his equipment premises from the demised and stated plaintiff permission, still had their time of their property equip- to remove his answer, ment. judgment
The pleadings. moved for on the argument After judge on the the learned motion, the court thorough opin- below, and well-reasoned judgment entered ap- ion, for the defendants. This peal by followed. appellant
The power contends that the court lacked judgment to enter for the defendants on the judgment motion for pleadings. in his favor contention is without merit. Under Eule 1034 of the Pennsylvania plead Eules of Civil after the Procedure, ings any party may judgment are closed, on move pleadings. if there are And, no unresolved issues may proceed of material entry the court fact, to the judgment of a pleadings. final on the basis of Nol important is it party to the ultimate decision which judgment. (b) moved for Subsection of Eule 1034 provides court “The shall enter such- or proper pleadings”? as shall order be ón the This has interpreted judgment may beén mean that “The against any party regard entered or moving party”: he was the whether Penn Anderson, sylvania p. approve Civil 549. We Practice, that con deny judgment It clusion. be irrational pleadings' party' rightly- entitled thereto- happened simply party because hé not to be the who ;the judgment;- pres -'-for made the motion -'-Moreover,. *5 ent timely sufficiency defendants questioned plaintiff’s complaint by preliminary which the made disposition. then short judge presiding When the later plaintiff himself moved pleaded whether he had pleadings, recurred. Whether necessarily valid cause action complaint inquiry stated a cause of action was judg essential to a of the motion for consideration ment. the appellant to the substantive
Coming questions, notice of argues the lessors waived written (1) lease and intention to renew the lessee’s desire and in place the lease sale of the coal constituted a (2) in royalties for all of fully paid which entitled to during was, therefore, of the coal after the expiration unmined i'emaining Not Neither is tenable. of these contentions in Lewis any authority did the not aver only complaint ten consent in of all waiver Smith to behalf the lessee’s desire and of the written notice of there no aver- which the lease but required, renew, The lease to do ment that Lewis Smith assumed so. should notice provided named specifically agent Alta on served change does not any and the aver complaint lessors, |50 check in pay- in that provision. whatsoever royalty plain- monthly ment of to Alta Smith tiff mailed let-
for the month of December,
stated
expressly
was, therefore,
ter of transmittal
and not for the
expired
month of the
last
for the
term.
a renewal
month of
first
royalties
plaintiff paid
(including
if the
Even
the term
an amount
mínimums) during
monthly
due or to become due for
total royalties
excess
it
in the leased
still
the mineable coal
propei*ty,
all of
*6
the
the coal
was
to mine and
plaintiffs
duty
remove
the term
the instru-
during
of the lease.
while
For,
lands
ment
the
mine the coal
the
granting
right
con-
even
a
though
lease,
the
denominated
grantors,
the
was
stituted a
of the coal
transaction
sale
place,
the
by
upon
conditioned
coal’s
removed
term of the lease: Shenan-
specified
within
grantee
v.
The cases cited by
A.
Pa.
v.
Pierce,
372,
In Robinson
guishable.
mining
limit for the
fixed no time
the agreement
Alden
in Smith v. Glen
while
coal,
removal
and
the demise
Written notice of the termination or renewal of may agree- subsequent either oral waived parties: conduct of the ment or the acts and Gold Corp., 304 A. 287; Film Pa. v. Fox *7 Snyder, 64. v. Pa. A. Executor only summary be entered in case A will free v. Shoe- clear and from doubt: Waldman that is Kittaning 2d 776; 367 Pa. A. Coal Co. maker, 2d Pa. A. Moore, v. specifically plead plaintiff if failed to
Even authority to bind his of one defendant co-lessors, go objection highly thereto is does not technical, immediately and would have been and could merits, permitted. Fur- if an amendment been corrected present pleadings on the case for thermore, even clear free if from doubt. Even is pleadings judgment motion for had been plaintiff, the least instead made justice play, in the interest fair that a Court, pleaded bill the facts do under should give complaint, leave amend. decree the Court below and reverse I would complaint its bill grant to amend leave jury the case on the merits. decide allow joins Musmanno this Dissenting Mr. Justice Opinion.