Paluti, C. v. Cumberland Coal , 2015 Pa. Super. 185 ( 2015 )

J-A19028-15
2015 Pa. Super. 185
CHRIS PALUTI AND AMBER PALUTI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
CUMBERLAND COAL LP AND EMERALD
COAL LP
Appellee No. 1885 WDA 2014
Appeal from the Order Entered October 15, 2014
In the Court of Common Pleas of Greene County
Civil Division at No(s): AD 416-2014
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
OPINION BY JENKINS, J.: FILED SEPTEMBER 4, 2015
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
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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
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1
The Palutis own subsurface mineral rights to at least one other seam of
coal, the “Sewickley seam”.
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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,
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2
The parties agree that the River seam is equivalent to the Pittsburgh seam.
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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).
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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.
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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
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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 that the 1900 Deed is immaterial
mistakenly overlooks a large portion of [the Palutis’]
claim.
Palutis’ Motion For Reconsideration, 10/24/14, p. 4. The court did not act on
this motion.
On November 10, 2014, Cumberland filed an application for
determination of finality under Pa.R.A.P. 341(c).3 Cumberland
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3
Rule 341(c) provides:
(Footnote Continued Next Page)
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acknowledged that the October 15, 2014 order “is not a final order” due to
“the pendency of Count I” but argued that an immediate appeal would
facilitate resolution of the entire case.4 Application, p. 3.
On November 13, 2014, the Palutis appealed to this Court from the
October 15, 2014 order.
On December 26, 2014, the trial court issued a “Memorandum to
Record” opining that the October 15, 2014 order was interlocutory:
[The Palutis’] land is made up of parts of two tracts
from which the Pittsburgh coal has been severed by
two deeds, one in 1900 and the other in 1903. The
complaint does not specify whether [Cumberland’s]
shaft or proposed shaft will pierce the part of [the
Palutis’] land where the coal was severed by the
1900 deed or the part where the coal was severed by
_______________________
(Footnote Continued)
[W]hen more than one claim for relief is presented in
an action … the trial court … may enter a final order
as to one or more but fewer than all of the claims
and parties only upon an express determination that
an immediate appeal would facilitate resolution of
the entire case … In the absence of such a
determination and entry of a final order, any order or
other form of decision that adjudicates fewer than all
the claims and parties shall not constitute a final
order.
Id. The trial court “is required to act on an application for a determination
of finality … within 30 days of entry of the order.” Pa.R.A.P. 341(c)(1).
“Unless the trial court … acts on the application within 30 days of entry of
the order, the trial court … shall no longer consider the application and it
shall be deemed denied.” Pa.R.A.P. 341(c)(3).
4
The application was denied by operation of law because the court did not
act on it within thirty days after the October 15, 2014 order. See n. 3,
supra.
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the 1903 deed, or both. Our order of October 15,
2014, held that the mining rights language in the
1903 deed permitted the coal owners to do what the
complaint says they are doing or plan to do. We held
therefore the complaint stated no cause of action if
[Cumberland’s] works impacted only the land
described in the 1903 deed. We made no such
finding with regard to the rights set forth in the 1900
deed. Unless all of [Cumberland’s] activities are
within the land bounded by the 1903 deed, and the
complaint does not say that, [the Palutis] are not out
of Court on Count II.
Id. at 2.
On December 30, 2014, this Court issued a rule upon the Palutis to
show cause why this appeal should not be quashed as interlocutory. The
Palutis responded with a letter brief insisting that the October 15, 2014
order was immediately appealable. Similarly, Cumberland filed a letter brief
contending that the order was either a final, appealable order or an
appealable interlocutory order -- thus contradicting its argument below that
the October 15, 2014 order “is not a final order.”
On January 15, 2015, this Court permitted the appeal to proceed while
advising that the panel assigned to this case could revisit the quashal issue.
The parties have filed briefs renewing their arguments that we enjoy
jurisdiction.
“Generally, subject matter jurisdiction has been defined as the court’s
power to hear cases of the class to which the case at issue belongs.”
Verholek v. Verholek, 741 A.2d 792, 798 (Pa.Super.1999). “[I]t is well-
settled that the question of subject matter jurisdiction may be raised at any
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time, by any party, or by the court sua sponte.” B.J.D. v. D.L.C., 19 A.3d
1081, 1082 (Pa.Super.2011). Our standard of review is de novo, and our
scope of review is plenary. Id.
Both the Palutis and Cumberland posit that this Court has subject
matter jurisdiction because the October 15, 2014 order fully resolved the
Palutis’ declaratory judgment claim. We conclude, however, that the order
is neither a final, appealable order under Pa.R.A.P. 341 or an appealable
interlocutory order under Pa.R.A.P. 311.
We first consider whether the order is final as it relates to Count II of
the complaint, the action for declaratory judgment. A final order
is any order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute;
or
(3) is entered as a final order pursuant to [an
application for determination of finality under Rule
341(c)].
Pa.R.A.P. 341(b). An appeal may be taken as of right from any final order.
Pa.R.A.P. 341(a).
In certain circumstances, an order deciding a declaratory judgment
claim constitutes a “final order by statute,” even when other claims remain
undecided. Pa.R.A.P. 341(b)(2). Section 7532 of the Pennsylvania
Declaratory Judgments Act, entitled “General Scope Of Declaratory
Remedy,” provides:
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Courts of record, within their respective jurisdictions,
shall have power to declare rights, status, and other
legal relations whether or not further relief is or
could be claimed. No action or proceeding shall be
open to objection on the ground that a declaratory
judgment or decree is prayed for. The declaration
may be either affirmative or negative in form and
effect, and such declarations shall have the force and
effect of a final judgment or decree.
42 Pa.C.S. § 7532 (emphasis added). Our Supreme Court has made clear,
however, that an order deciding a declaratory judgment claim is final and
appealable under section 7532 if, and only if, it fully resolves the declaratory
judgment claim. United States Organizations for Bankruptcy
Alternatives, Inc. v. Department of Banking, 26 A.3d 474, 479-80
(Pa.2011). A declaratory judgment order which merely narrows the dispute
instead of resolving it is not final or appealable. Id. (order granting in part
and denying in part declaratory judgment petition challenging
constitutionality of Debt Management Services Act was not final, appealable
order; petition challenged Act in its entirety, but court struck only two
provisions of Act, did not address several of petitioners’ arguments, and did
not decide whether petitioners were entitled to full relief requested);
Pennsylvania Bankers Ass ‘n v. Pennsylvania Dept. of Banking, 948
A.2d 790, 796-97 (Pa.2008) (order sustaining preliminary objections to
some, but not all, declaratory judgment claims challenging constitutionality
of statute merely narrowed scope of claims and did not constitute final
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order, because plaintiffs may still be able to obtain relief through remaining
declaratory judgment claims).
The trial court correctly observed that its October 15, 2014 order is
not final and appealable as it relates to Count II. The order expressly
permits the Palutis to amend the complaint, so the Palutis “are not out of
court on [their declaratory judgment action].” Memorandum to Record, p. 2.
Moreover, the order addresses the parties’ rights under the 1903 deed but
not under the 1900 deed, so it merely narrows the dispute instead of
resolving it. Bankruptcy Alternatives, Pennsylvania Bankers Ass’n,
supra. The 1900 deed is still a potential avenue for declaratory relief, and
this matter is for the trial court to resolve in the first instance. In short, the
order is not appealable under section 7532 and therefore is not a final order
under Pa.R.A.P. 341(b)(2).
Nor is the order appealable under Rule 341(b)(1), because it does not
dispose of all claims: the court did not address the 1900 deed in the course
of deciding Cumberland’s preliminary objections, the court granted the
Palutis leave to amend their complaint, and the court never ruled on Count I
at all. Finally, the order is not appealable under Rule 341(b)(3), because
Cumberland’s application for determination of finality was denied by
operation of law.
Turning to the private nuisance claim in Count III, the order is not final
under Rule 341(b)(1) and (b)(3) for the reasons given with regard to Count
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II. Nor is the order final under Rule 341(b)(2), because no statute
designates an order disposing of a private nuisance action as “final”.
Perhaps anticipating that the order is not final, Cumberland makes the
alternative argument that the order is appealable under Pa.R.A.P. 311(a)(4),
which permits interlocutory appeals as of right from “an order that grants or
denies, modifies or refuses to modify, continues or refuses to continue, or
dissolves or refuses to dissolve an injunction.”5 We disagree, based on the
Commonwealth Court’s persuasive logic in West Pittsburgh Partnership
ex rel. WEHAV Governing Com’n v. McNeilly, 840 A.2d 498
(Pa.Cmwlth.2004). All three counts of the complaint in McNeilly sought the
same injunctive relief: a decree prohibiting closure of a police station. The
trial court entered judgment on the pleadings against the plaintiffs on
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5
There are two exceptions to Rule 311(a)(4). An injunction order is not
appealable
when it is entered:
(i) pursuant to Section 3323(f) or 3505(a) of
the Divorce Code, 23 Pa. C.S. §§ 3323(f),
3505(a); or
(ii) after a trial but before entry of the final
order. Such order is immediately
appealable, however, if the order enjoins
conduct previously permitted or mandated
or permits or mandates conduct not
previously mandated or permitted, and is
effective before entry of the final order.
Id. Neither exception is relevant here.
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Counts II and III of the complaint while reserving decision on Count I. The
Commonwealth Court quashed the plaintiffs’ appeal relating to Counts II and
III, reasoning:
[A]ll three Counts of the complaint seek the same
injunctive relief[,] and so the continued viability of
Count I preserves a claim for the same injunctive
relief requested in the dismissed Counts. Hence, we
cannot conclude that common pleas’ order
dismissing Counts II and III effects a denial of
permanent injunctive relief so as to trigger the
allowance of an interlocutory appeal under Rule
311(a)(4).
Id., 840 A.2d at 504.
Here, all three counts of the Palutis’ complaint seek the same
injunctive relief, a decree “prevent[ing] or restrain[ing]” Cumberland from
constructing the new mine. Dismissal of Counts II and III of the complaint
will not prevent the Palutis from pursuing identical injunctive relief in Count
I. Indeed, the Palutis can still pursue injunctive relief on Counts II and III,
because the trial court dismissed these counts with leave to amend. In
short, the October 15, 2014 order “[does not] effect[] a denial of permanent
injunctive relief so as to trigger the allowance of an interlocutory appeal
under Rule 311(a)(4).” McNeilly, 840 A.2d at 504.
For these reasons, the October 15, 2014 order is neither a final,
appealable order under Pa.R.A.P. 341 nor an appealable interlocutory order
under Pa.R.A.P. 311. Although the parties urge us to exercise jurisdiction
over this appeal and have obviously devoted considerable time and effort to
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their briefs, no rule authorizes us at this juncture to decide this appeal on
the merits.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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