J-A30038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE MONONGALIA       COUNTY   COAL :        IN THE SUPERIOR COURT OF
    COMPANY,                           :              PENNSYLVANIA
                                       :
                      Appellee         :
                                       :
                      v.               :
                                       :
    WEISS WORLD, L.P. AND CHRISTOPHER :
    P. WEISS,                          :
                                       :
                       Appellants      :       No. 962 WDA 2018

                  Appeal from the Order Entered June 15, 2018
                in the Court of Common Pleas of Greene County
                      Civil Division at No(s): AD 558-2017

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED MAY 07, 2019

        Weiss World, L.P. and Christopher P. Weiss (collectively, Appellants)

appeal from the order entered on June 15, 2018, which granted the

preliminary injunction filed by The Monongalia County Coal Company (Mon

Coal). Upon review, we affirm.

        We provide the following background. Appellants are the owners of a

109-acre property (the Property) located off Jollytown Road in Greene County,

Pennsylvania. The Property was purchased in 1971 by the Weiss family, and

has been in the family ever since.1 At the time of purchase, there was a large



* Retired Senior Judge assigned to the Superior Court.

1 At some point, the Property was transferred to a legal entity known as Weiss
World, L.P. Christopher Weiss is the general partner of that entity. His
siblings, including Jennifer Weiss, are limited partners.
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farmhouse on the Property, which the family regularly used until an arsonist

burned it down in 2009. Although the farmhouse has not been rebuilt since

that time, Appellants continue to use the Property as a retreat.

        In 1911, ownership of the coal underneath the Property was severed

from the surface estate, and the subsurface rights were acquired by

Consolidation Coal Company in 1957.2       Mon Coal acquired those rights in

2013.

        In August 2016, Mon Coal notified Appellants of its intent to mine the

coal under the Property and adjoining property. Due to safety and ventilation

requirements, Mon Coal needs 2.7 acres on the surface of the Property to

construct a sediment pond and storage area.

        Mon Coal and Appellants were unable to reach an agreement as to this

Property, so on July 18, 2017, Mon Coal filed a complaint and motion for

preliminary injunction against Appellants to obtain the necessary land on the

Property to create the sediment pond and storage area. In September 2017,

the parties reached an agreement (the 2017 Agreement), whereby Appellants

permitted the creation of the sediment pond and storage area on 2.7 acres of

the Property, but required Mon Coal to utilize Jollytown Road to construct and




2 “Pennsylvania law recognizes three discrete estates in land: the surface
estate, the mineral estate, and the right to subjacent (surface) support.
Because these estates are severable, different owners may hold title to
separate and distinct estates in the same land.” Consolidation Coal Co. v.
White, 875 A.2d 318, 326 (Pa. Super. 2005) (internal citations omitted).
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access the sediment pond and storage area. Mon Coal paid Appellants $5,000

as consideration for the 2017 Agreement.

      Mon Coal then proceeded to go through the administrative permitting

process to construct the sediment pond and storage area and learned that the

Pennsylvania Department of Environmental Protection (PADEP) would not

permit Mon Coal to use Jollytown Road to construct and access the sediment

pond and storage areas.    Mon Coal had believed initially that it would be

permitted to use Jollytown Road because it had been previously permitted to

do so for another project. However, since that initial permit, new homes had

been built nearby, which, according to the PADEP, required those homeowners

to sign waivers. Mon Coal was unable to obtain waivers from the homeowners,

and therefore it was unable to obtain a permit from the PADEP to use Jollytown

Road as provided for in the 2017 Agreement.

      Thus, Mon Coal went back to Appellants in order to negotiate the

creation of an access road across the Property.3 The parties were unable to

reach a new agreement, and on May 4, 2018, Mon Coal filed against Appellants

a second motion for preliminary injunction and a motion for leave to amend

the complaint. The relief sought by Mon Coal in this preliminary injunction


3Mon Coal acknowledged that it could have also, or even in addition to, sought
a final determination from the PADEP, which would likely have been a denial,
and then appealed that denial to the Environmental Hearing Board. However,
Mon Coal believed that pursuing that route would have been more time
consuming and caused other issues, so it instead decided to go back to
Appellants to get permission to create a new access road. See N.T.,
5/25/2018, at 85.
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was to prohibit Appellants “from interfering with [Mon Coal’s] reasonable

access to the [] Property in order to construct an access road so that it may

immediately construct the [ventilation shaft] and ancillary facilities.” Second

Motion for Preliminary Injunction, 5/4/2018, at ¶ 44.

         A hearing was held by the trial court on these motions on May 25, 2018.

At that hearing, Mon Coal presented the testimony of Kevin Rakes, manager

of engineering for Mon Coal’s northern West Virginia operations. He explained

the importance of a ventilation shaft, and further testified about why this shaft

was needed at this time and location. In addition, Rakes pointed out that in

order to find a new location and get a permit for a new shaft, it takes many

years. Rakes testified that without this shaft, mining will have to cease in May

of 2020 because the mine would be vented inadequately at that point. N.T.,

5/25/2018, at 45. If the mine has to shut down, 400 employees, 100 of whom

live in Greene County, will be out of work. Id. at 27. In addition, the mine

shutting down would cause Greene County to lose $2 million in revenue on an

annual basis. Id.

         The trial court also heard testimony from Kim Betcher, who testified

regarding the PADEP’s denial of Mon Coal’s permit. She disagreed with the

PADEP’s decision, but stated that Mon Coal “just [doesn’t] have the time or

an appealable action to take it in front of the [Environmental Hearing Board]

so [they’re] searching other routes because the shaft has to be installed.” Id.

at 90.


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      In addition, Jennifer Weiss testified about the history of the Property in

her family, and her rationale for entering into the 2017 Agreement. She stated

that the reason Appellants entered into the 2017 Agreement in the first place

was based upon Mon Coal’s representation that “they didn’t need any more

from us … they don’t need any other access.” Id. at 129.             She further

acknowledged that the location of the proposed access road did not run across

what Appellants consider “the homestead,” or the area of the Property they

occupy when they visit.4 Id. at 141.

      At the close of the hearing, the trial court listed the six factors Mon Coal

must satisfy in order to be granted a preliminary injunction. See id. at 157

(“[L]et’s go down through these elements though.”). After the trial court listed

each factor, Mon Coal argued to the trial court how it satisfied that factor. Id.

at 157-162. The trial court provided additional time for the parties to come

to a new agreement, and the parties informed the trial court they were unable

to do so.   Therefore, on June 15, 2018, the trial court entered an order

granting Mon Coal’s motion for leave to amend the complaint as well as Mon

Coal’s second motion for preliminary injunction.

      In its order and opinion, the trial court cited to the factors necessary for

the granting of a preliminary injunction and concluded that “there is no


4 Mon Coal presented Appellants three separate options for an access road.
Options 1 and 2 would have crossed the homestead area. Option 3, the only
option Mon Coal was pursuing at the time of the hearing, did not traverse that
area.


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adequate remedy at law available to [Mon Coal], the actual owner of the coal

underneath the Property, and that [Mon Coal] will suffer immediate and

irreparable harm should the preliminary injunction be denied.” Trial Court

Opinion, 6/15/2018, at 3-4 (unnecessary capitalization omitted).

      Appellants timely filed a notice of appeal from the order granting the

preliminary injunction.5 The trial court ordered Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and

Appellants complied. On July 20, 2018, the trial court entered an order stating

that it was relying on its June 15, 2018 opinion. Order, 7/20/2018.

      In considering Appellants’ claims that the trial court erred in granting

the preliminary injunction, we are mindful of the following.

      As an initial matter, … in general, appellate courts review a trial
      court order refusing or granting a preliminary injunction for an
      abuse of discretion. We have explained that [the] standard of
      review [] to be applied within the realm of preliminary injunctions
      [is] as follows:

            [W]e recognize that on an appeal from the grant or
            denial of a preliminary injunction, we do not inquire
            into the merits of the controversy, but only examine
            the record to determine if there were any apparently
            reasonable grounds for the action of the court below.
            Only if it is plain that no grounds exist to support the
            decree or that the rule of law relied upon was palpably
            erroneous or misapplied will we interfere with the
            decision of the [trial court].

      Roberts v. Board of Dirs. of Sch. Dist., [] 341 A.2d 475, 478
      ([Pa.] 1975). This Court set out the reasons for this highly
      deferential standard of review almost a hundred years ago:

5 An order granting a preliminary injunction is appealable as of right pursuant
to Pa.R.A.P. 311(a)(4).
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            It is somewhat embarrassing to an appellate court to
            discuss the reasons for or against a preliminary
            decree, because generally in such an issue we are not
            in full possession of the case either as to the law or
            testimony—hence our almost invariable rule is to
            simply affirm the decree, or if we reverse it to give
            only a brief outline of our reasons, reserving further
            discussion until appeal, should there be one, from
            final judgment or decree in law or equity.

      Hicks v. Am. Natural Gas Co., [] 57 A. 55, 55–56 ([Pa.] 1904).
      Thus, in general, appellate inquiry is limited to a determination of
      whether an examination of the record reveals that “any apparently
      reasonable grounds” support the trial court’s disposition of the
      preliminary injunction request. See Roberts, 341 A.2d at 478.

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d

995, 1000-01 (Pa. 2003) (some citations, quotation marks, and footnotes

omitted).

      On appeal, Appellants first claim that the trial court “abused its

discretion when it granted [Mon Coal’s] motion for preliminary injunction

without first finding that [Mon Coal] established six ‘essential prerequisites’

necessary to be afforded injunctive relief.” Appellants’ Brief at 13.

      The six essential prerequisites that a moving party must
      demonstrate to obtain a preliminary injunction are as follows: (1)
      the injunction is necessary to prevent immediate and irreparable
      harm that cannot be compensated adequately by damages; (2)
      greater injury would result from refusing the injunction than from
      granting it, and, concomitantly, the issuance of an injunction will
      not substantially harm other interested parties in the proceedings;
      (3) the preliminary injunction will properly restore the parties to
      their status as it existed immediately prior to the alleged wrongful
      conduct; (4) the party seeking injunctive relief has a clear right to
      relief and is likely to prevail on the merits; (5) the injunction is
      reasonably suited to abate the offending activity; and, (6) the
      preliminary injunction will not adversely affect the public interest.


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J-A30038-18


SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 501-502 (Pa.

2014).

      In this case, despite acknowledging there were six prerequisites to

consider, see Trial Court Opinion, 6/15/2018, at 4, the trial court offered a

specific conclusion only as to the first of those prerequisites, that Mon Coal

“will suffer immediate and irreparable harm.” Id. at 5. In addition, the trial

court concluded that “there is no adequate remedy at law available to [Mon

Coal].” Id.   Thus, in attempting to determine whether any “apparently

reasonable grounds” exist for the trial court’s granting of the preliminary

injunction, our review is significantly hindered by the incomplete analysis

presented in the trial court’s opinion.   On the other hand, it is Mon Coal’s

position that a written opinion is not necessary, and that this Court can and

should look to the entire record to determine if “any apparently reasonable

grounds support the trial court’s disposition of the preliminary injunction

request.” Summit Town Ctr., Inc., 828 A.2d at 1001 (internal quotation

marks omitted); Mon Coal’s Brief at 17-18.

      We begin by examining relevant case law. In Citizens Bank of Pa. v.

Myers, 872 A.2d 827 (Pa. Super. 2005), this Court affirmed a trial court order

granting a preliminary injunction in favor of Citizens and against the

defendants in order to freeze the defendants’ National City bank accounts,

which allegedly contained funds they misappropriated from Citizens. “Citizens

sought, inter alia, equitable relief, in the form of an injunction to freeze the


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defendants’ bank accounts.” Id. at 831. Citizens also obtained an emergency

ex parte special injunction to freeze the defendants’ bank accounts in order to

prevent dissipation of assets.

      A hearing was held on the preliminary injunction on December 19, 2003.

At that hearing, the defendants orally moved to dismiss the injunction. The

trial court reserved ruling on the motions, and permitted the hearing to move

forward. At that point, the defendants agreed “that they would stipulate to

Citizens’ offers of proof of its witnesses’ testimony for the purpose of the trial

court’s resolution of their motions to dismiss, thus dispensing of the need for

witness testimony.” Id. at 832.       Counsel for Citizens then set forth the

testimony it would have presented at the hearing. On December 22, 2003,

the trial court denied the motions to dismiss the injunction, which left in effect

the injunction.

      One defendant6 appealed this ruling, arguing inter alia, “this Court

cannot conduct an adequate review of the grant of the preliminary injunction

without a Rule 1925(a) opinion … from the trial court.” Id. at 837. This Court

pointed out that our standard of review permits this Court to “examine the

record to determine if there were any apparently reasonable grounds for the

action of the court below.” Id., citing Warehime v. Warehime, 860 A.2d 41,

46 (Pa. 2004). This Court concluded that “the proposed testimony offered by


6 The other defendant filed a suggestion of bankruptcy, which stayed his
appeal.


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J-A30038-18


Citizens amply illustrates that there were apparently reasonable grounds for

the trial court’s decision to grant a preliminary injunction” and concluded that

remand was not necessary under the circumstances of this case. Id.

      Based on the foregoing, while we certainly do not condone the trial

court’s failure to address specifically all six factors in its opinion, we conclude

that its failure to do so does not require remand. Thus, as in Citizens Bank,

we will “examine the record to determine if there were any apparently

reasonable grounds for the action of the court below.” 872 A.2d at 837.

Therefore, Appellants’ first issue does not entitle them to relief.

      We now consider each essential prerequisite in turn, beginning with

Appellants’ claim that the trial court abused its discretion in concluding that

Mon Coal would be irreparably harmed. See Appellants’ Brief at 19-21.

According to Mon Coal, the irreparable harm is clear – without the ability to

create this access road, the mine will shut down. N.T., 5/25/2018, at 157.

      Appellants do not dispute this conclusion, but contend that any harm to

Mon Coal is not being caused by Appellants, but rather is due to the PADEP’s

refusing to permit Mon Coal to use Jollytown Road to access the Property.

Appellants’ Brief at 19. That may be true, but that is not the question that

faces either the trial court or this Court. The question facing the trial court

was whether there would be irreparable harm that could not be compensated

by damages. “An injury is regarded as ‘irreparable’ if it will cause damage

which can be estimated only by conjecture and not by an accurate pecuniary


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standard.” The York Grp., Inc. v. Yorktowne Caskets, Inc., 924 A.2d

1234, 1242 (Pa. Super. 2007) (quoting Kessler v. Broder, 851 A.2d 944,

951 (Pa. Super. 2004)). As the trial court pointed out, the injury here is that

the mine will go out of business. N.T., 5/25/2018, at 158. Thus, it would be

impossible for Mon Coal to calculate with certainty the losses to its business,

the losses to its employees, and losses to Greene County if mining were to

cease. Accordingly, we conclude that reasonable grounds existed for the trial

court’s conclusion that Mon Coal would suffer irreparable harm thereby

establishing the first prerequisite.

      We next consider whether the trial court abused its discretion in

determining that “greater injury would result from refusing an injunction than

from granting it and concomitantly, that issuance of an injunction will not

substantially harm other interested parties in the proceedings.” The York

Grp., Inc., 924 A.2d at 1244. As discussed supra, the injury to Mon Coal is

obvious from the record.     The injury to Appellants, however, is not.     The

testimony at the hearing revealed an understandable attachment and affinity

to the Property by Appellants.         However, as Jennifer Weiss testified, the

proposed route for the access road does not traverse any area of the Property

actually used by Appellants or any area where a farmhouse would be built or

rebuilt. See N.T., 5/25/2018, at 141.            Thus, we conclude there were

reasonable grounds to determine that “greater injury would result from




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refusing an injunction than from granting it.” The York Grp., Inc., 924 A.2d

at 1244.

      We consider the next two prerequisites together. The first is whether

granting “a preliminary injunction will properly restore the parties to their

status as it existed immediately prior to the alleged wrongful conduct.” Id.

The next is whether Mon Coal has shown “that the activity it seeks to restrain

is actionable, that its right to relief is clear, and that the wrong is manifest,

or, in other words, [] that it is likely to prevail on the merits.” Id. at 1241.

      To understand these prerequisites in the context of this case, we review

the law regarding property rights. There is no dispute that Mon Coal owns the

mineral rights to the Property, and Appellants own the surface rights to the

Property. “Under Pennsylvania law, the mineral estate is the dominant estate

and entails the right to use of as much surface land as reasonably necessary

to extract minerals.” Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d

236, 243–44 (3d Cir. 2011), as amended, (Mar. 7, 2012). Thus, it is Mon

Coal’s position that, as the “owner of coal and mining rights” in the Property,

it is permitted to exercise its rights as such. Mon Coal’s Brief at 38. Therefore,

Mon Coal argues that the preliminary injunction was proper because it

restored the parties to their original positions, and Appellants are not likely to

prevail on the merits. Mon Coal’s Brief at 23, 38-39.

      It is Appellants’ position that the 2017 Agreement altered Mon Coal’s

status such that “it required written consent from [Appellants] to enter any


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J-A30038-18


other portion of the [Property.]” Appellants’ Brief at 22.      In other words,

Appellants argue that the 2017 Agreement was the “status [of the parties] as

it existed immediately prior to the alleged wrongful conduct.” The York Grp.,

Inc., 924 A.2d at 1244. Furthermore, Appellants argue because Appellants

and Mon Coal entered into the 2017 Agreement, Mon Coal cannot establish a

clear right to relief and will not succeed on the merits. Appellants Brief at 15-

19.

      “To establish a clear right to relief, the party seeking an injunction need

not prove the merits of the underlying claim, but need only demonstrate that

substantial legal questions must be resolved to determine the rights of the

parties.” SEIU, 104 A.3d at 506.       Here, the aforementioned arguments,

combined with our examination of the record, confirm that there is a legal

dispute regarding how the 2017 Agreement affects Mon Coal’s rights to the

Property. Thus, Mon Coal has satisfied its burden to show that “substantial

legal questions must be resolved.” Id.        Moreover, based on the foregoing

dispute, and the controversy ongoing since 2016, it was reasonable for the

trial court to determine that the timeframe that immediately “preceded the

pending controversy” is the timeframe prior to entry of the 2017 Agreement.

The York Grp., Inc., 924 A.2d at 1244. Accordingly, it was not an abuse of

discretion for the trial court to conclude that Mon Coal established both of

these prerequisites.




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      We next consider Appellants’ claim that Mon Coal “did not establish [that

the preliminary injunction] was reasonably suited to abate the supposedly

offending activity.” Appellants’ Brief at 23. Here, the only activity Mon Coal

requested to be abated was the ability of Appellants to interfere with Mon

Coal’s accessing the Property.     The preliminary injunction, which ordered

Appellants to refrain from acting as such, was certainly reasonably calculated

to do that.

      The final prerequisite for a trial court to consider is whether Mon Coal

established “that the injunction will not adversely affect the public interest.”

The York Grp., Inc., 924 A.2d at 1245. Appellants argue that the public

interest is served by enforcing valid contractual provisions of the 2017

Agreement. Appellants’ Brief at 24.         However, as discussed infra, the

enforceability of those provisions involves substantial legal questions which

are more appropriate to be considered at the final injunction stage. Moreover,

Mon Coal has demonstrated that the preliminary injunction could benefit the

public by keeping the mine open in Greene County. Thus, we discern no error

by the trial court.

      Having reviewed the six essential prerequisites, we conclude “that there

were apparently reasonable grounds for the trial court’s decision to grant a

preliminary injunction.” Citizens Bank, 872 A.2d at 837. Accordingly, we will

not reverse the order of the trial court.




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      Appellants next set forth two arguments regarding the 2017 Agreement.

First, Appellants argue that the trial court erred “when it allowed [Mon Coal]

to access the [Property] to build an access road despite the clear and

unambiguous terms of the 2017 Agreement to the contrary.” Appellants’ Brief

at 26.   Appellants also contend the trial court erred “and engendered

significant confusion regarding each parties’ obligations and responsibilities

when it granted [Mon Coal’s motion for preliminary injunction] without

determining whether, and to what extent, the 2017 Agreement continues to

govern the parties’ relationship with respect to [Mon Coal’s] mining

operations.” Id. at 31.

      These issues, however, were neither necessary to resolve nor the type

to be resolved at the preliminary injunction stage; rather, these defenses can

and should be considered and resolved at a hearing on a permanent

injunction.

      [I]n order to establish a claim for a permanent injunction, the
      party must establish his or her clear right to relief. However,
      unlike a claim for a preliminary injunction, the party need not
      establish either irreparable harm or immediate relief and a court
      may issue a final injunction if such relief is necessary to prevent a
      legal wrong for which there is no adequate redress at law.

Buffalo Twp. v. Jones, 813 A.2d 659, 663 (Pa. 2002) (internal citations and

quotation marks omitted). Accordingly, the issue of what effect, if any, the

2017 Agreement has on the parties can and should be resolved at a hearing

on a permanent injunction.



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      Because the trial court did not commit an error of law or abuse its

discretion in granting a preliminary injunction in favor of Mon Coal and against

Appellants, we affirm the order of the trial court.

      Order affirmed.

      Judge Shogan joins the memorandum.

      Judge Kunselman joins and files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2019




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