Paluti v. Cumberland Coal LP

122 A.3d 418

2015 PA Super 185

Chris PALUTI and Amber Paluti, Appellants

v.CUMBERLAND COAL LP and Emerald Coal LP, Appellee.

No. 1885 WDA 2014

Superior Court of Pennsylvania.

Argued July 8, 2015.

Filed Sept. 4, 2015.

John W. Kettering, Sharon, for appellant.

Kevin K. Douglass, Pittsburgh, for appellees.

BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

Opinion

OPINION BY JENKINS, J.:

Chris and Amber Paluti (“the Palutis”) filed a complaint seeking, inter alia, a declaratory judgment that Cumberland Coal LP and Emerald Coal LP (collectively “Cumberland”) have no right to construct a new mine underneath the Palutis' surface estate. Cumberland filed preliminary objections in the form of demurrers to Count II (the declaratory judgment claim) and Count III (a nuisance claim), but Cumberland did not file a preliminary objection to Count I. The trial court sustained Cumberland's preliminary objections, dismissed Counts II and III with leave for the Palutis to file an amended complaint, and stayed proceedings on Count I.

The Palutis have appealed this order. All parties, including Cumberland, contend that the order is appealable. The trial court disagreed, and we disagree as well. The Palutis sought declaratory judgment on the ground that Cumberland lacks the right to construct a new mine under deeds from 1900 and 1903 that conveyed mining rights to Cumberland's predecessor in interest. The trial court's order is not appealable as a final order under Pa.R.A.P. 341, because (1) it only addressed Cumberland's rights under the 1903 deed but not under the 1900 deed, and (2) it granted the Palutis leave to file an amended complaint. Nor, for the reasons articulated below, is this order appealable under Pa.R.A.P. 311(a)(4) as an interlocutory order denying injunctive relief. For these reasons, we quash the Palutis' appeal.

On June 8, 1992, the Palutis, by general warranty deed, purchased three tracts of real property in Whiteley Township and acquired all rights to the tracts' surface estates and all subsurface mineral rights not reserved to third parties through prior severance deeds in the chain of title. Complaint, exhibit I. Two such reservations are within the 1900 and 1903 severance deeds. Both reservations relate to a single seam of coal (the “Pittsburgh seam”) beneath the Palutis' surface estate.¹ Id., exhibits G, H.

The Pittsburgh seam of coal lies both underneath and beyond the Palutis' surface estate. The portion of the Pittsburgh seam beneath the Palutis' property was fully mined during the past century. Cumberland claims to be the successor in interest under the 1900 and 1903 deeds to the portion of the Pittsburgh seam underneath the Palutis' property. Complaint, ¶¶ 36–43. Cumberland also owns part of the Pittsburgh seam outside the Palutis' property. Id.

Cumberland asserts the right under the 1900 and 1903 deeds to construct a slope mine (“the new mine”) that will begin at a portal outside the Palutis' property and tunnel through the Palutis' subsurface strata without reaching any part of the Pittsburgh seam beneath the Palutis' surface estate. Complaint, ¶¶ 36–43. The new mine will access the Pittsburgh seam beneath third party estates unrelated to the 1900 or 1903 deeds. Id. Cumberland will use this mine only to transport coal from third party sources to the portal outside the Palutis' property. Id.

In the 1900 deed, the Palutis' predecessors in interest, William Orndoff et al., granted a mining right to the “Pittsburgh or River”² seam of coal to the grantee, William J. Kyle, Trustee. Complaint, exhibit G. The 1900 deed expressly required the grantee to conduct all subsurface transportation through the passage created by excavation of the Pittsburgh seam:

With the rights to the said party of the second part, his heirs and assigns to mine and remove all said coal without being required to provide or leave support for the overlying strata or surface and without being liable for any injury to the same or to anything therein or thereon by reason thereof, of by the manufacture of this or other coal into coke and with all reasonable privileges for ventilation, pumping and draining the mines and the right to keep and maintain roads and ways through said mine forever for the transportation of said coal and of coal, minerals and other thing ...

Id. (emphasis added). Therefore, the 1900 deed limited the grantee to transportation through the mine and prohibited excavation of new passages in other subsurface strata.

The 1903 Deed concerned a different tract of land than the 1900 deed. In this deed, George B. Orndoff et al. (the Palutis' predecessors in interest), granted a mining right in the “Pittsburgh or River” seam of coal to the grantee, William K. Hatfield. Complaint, exhibit H. This deed contained different language than the 1900 deed concerning transportation of mined coal from third party sources:

The party of the second part, his heirs and assigns shall have the right to mine and carry away all of said coal with all the mining rights and privileges necessary or convenient with mining and removing the same without, being required to provide for the support of the overlaying strata and without liabilities for injury to the said surface or to anything therein or thereon by reason of the mining and removing of said coal or to the manufacture of the same or other coal into coke or other products at such places as may be selected by said party second party, his heirs or assigns, together with the right of mining and removing under said described premises other coal or matter belonging to or that may hereafter belong to the said second party his heirs and assigns.

Id. (emphasis added).

The Palutis assert that a vacant passage remains intact in the Pittsburgh seam under their property from mining activities during the past century. The Palutis do not challenge Cumberland's right to transport coal, machinery and materials through this existing passage. Instead, they oppose construction of a new passage under their surface estate through strata outside the Pittsburgh seam for transportation of coal mined from unrelated third party properties.

On June 10, 2014, the Palutis filed a three count complaint against Cumberland. Count I, a statutory action under 53 P.S. § 10617, alleged that construction of the new mine constitutes a violation of Whiteley Township zoning ordinances. Count II sought a declaratory judgment that Cumberland has no right under the 1900 or 1903 deeds to construct the new mine. Count III alleged that Cumberland's alleged zoning violations and proposal to construct the new mine constitute a private nuisance. The prayers for relief in each count demanded that the court “prevent or restrain” Cumberland from constructing the new mine.

Cumberland filed preliminary objections to Counts II and III of the complaint. Cumberland did not address the 1900 deed in its preliminary objections to Count II; Cumberland only claimed the right to construct the new mine under the 1903 deed. Similarly, the Palutis' response did not address the 1900 deed.

On October 15, 2014, the trial court sustained Cumberland's preliminary objections and dismissed Counts II and III, but it granted the Palutis leave to file an amended complaint. The court stayed disposition of Count I pending disposition of a separate case on its miscellaneous docket.

Noting that Cumberland's preliminary objections and the Palutis' response did not discuss the 1900 deed, the court limited its analysis to whether Cumberland had the right to construct the new mine under the 1903 deed. Memorandum and Order, 10/15/14, p. 3. The court wrote:

[W]e turn to the operative language in the 1903 deed. Does the grant of ‘the right of mining and removing under said described premises other coal or matter belonging ... to said second party’ convey the right to carve a tunnel under [the Palutis'] land but not in the Pittsburgh seam of coal? In our opinion it does. The obvious question is the definition of premises. Are the premises in this case the 111.443 acres of surface which the Orndoff grantors presumably owned when they severed the Pittsburgh coal, or are the premises the Pittsburgh coal itself? What did the parties to the severance deed intend?

If ‘said described premises' means the Pittsburgh seam of coal, the grant of removing all other coal or matter ‘under said described premises', gives the coal owners the right to tunnel below the Pittsburgh coal, which makes no sense. No one would bargain for that right. Obviously, the ‘premises' refers to the surface and here William Hatfield purchased the right to mine coal and other matter from other lands beyond the boundaries of [the Palutis'] predecessors' land and remove it under the land now owned by [the Palutis], not necessarily within the Pittsburgh coal seam.

To the extent [the Palutis] rely on the language of the 1903 deed, they have failed to state a cause of action. The construction and maintenance of a slope shaft then traverses their land at some elevation above the Pittsburgh seam of coal and below the surface right invades no property right that [the Palutis] still possess.

Id. at 5–6.

On October 24, 2014, the Palutis filed a motion for reconsideration objecting to the court's failure to analyze the 1900 deed:

[T]he Court failed to account for the language of the 1900 Deed. As a fact that it controls both [the Palutis'] real property rights and [Cumberland's] mineral/access rights, it is a critical element of [the Palutis'] claim. [Cumberland] only raised demurrer as to the 1903 Deed. As such, [the Palutis] only addressed the issues raised by [Cumberland] instead of voluntarily expanding the scope of [Cumberland's] objections. The factual assumption by the Court that the 1900 Deed is of no consequence is premature. At this stage, there is no record, or available analysis, providing that the new mine will only traverse through portions of [the Palutis'] subsurface property controlled by the 1903 Deed. Accordingly, the assumption

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