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


                                              1
J-A19028-15



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

____________________________________________


1
  The Palutis own subsurface mineral rights to at least one other seam of
coal, the “Sewickley seam”.



                                           -2-
J-A19028-15



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,
____________________________________________


2
    The parties agree that the River seam is equivalent to the Pittsburgh seam.



                                           -3-
J-A19028-15


            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).




                                      -4-
J-A19028-15


        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.




                                         -5-
J-A19028-15


     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

                                    -6-
J-A19028-15


              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


____________________________________________


3
    Rule 341(c) provides:

(Footnote Continued Next Page)


                                            -7-
J-A19028-15


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.



                                            -8-
J-A19028-15


                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

                                         -9-
J-A19028-15


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:




                                       - 10 -
J-A19028-15


            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




                                     - 11 -
J-A19028-15


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


                                     - 12 -
J-A19028-15


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

____________________________________________


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.



                                          - 13 -
J-A19028-15


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



                                    - 14 -
J-A19028-15


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




                                   - 15 -
