J-A16021-14

                             2014 PA Super 164

PENNSYLVANIA SERVICES                    :       IN THE SUPERIOR COURT OF
CORPORATION,TRADING AS EMERALD           :             PENNSYLVANIA
COAL RESOURCES, LP, AND                  :
PENNSYLVANIA LAND HOLDINGS               :
COMPANY, LLC,                            :
              Appellees                  :
                                         :
           v.                            :
                                         :
TEXAS EASTERN TRANSMISSION, LP,          :
                                         :
                 Appellant               :           No. 1429 WDA 2013

              Appeal from the Order entered on August 9, 2013
              in the Court of Common Pleas of Greene County,
                      Civil Division, No. AD 663 of 2011

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                             FILED JULY 29, 2014



Order granting partial summary judgment against it and in favor of

Pennsylvania Services Corporation, trading as Emerald Coal Resources, LP,




transmission pipelines owned by Texas Eastern.1 We affirm.

     Emerald operates a full extraction coal mine in Greene County,

Pennsylvania. Texas Eastern operates five interstate pipelines, which



1
  An order declaring the rights of parties is immediately appealable pursuant
to 42
of the parties as to subjacent support, we deny the Motion to Quash the
appeal filed by Emerald.
J-A16021-14




active, and all are buried several feet below the surface.

      The Pennsylvania Department



conduct full extraction mining operations, by longwall system,2 in an area of

                                                                       dition:

      [A]t least 90 days prior to conducting any underground mining
      that will or is likely to result in subsidence of the Pipelines,
      [Emerald] shall submit evidence to the Department showing that
      [Emerald] reached an agreement with [Texas Eastern] or
      provide other satisfactory evidence (for example, a court or
      administrative order or ruling) that requires the performance,
      prior to undermining of appropriate mitigation measures that will
      minimize damage, disruption or destruction of utility service
      provided by the Pipelines after they have been undermined,
      which describes those mitigation measures.

Complaint, Exhibit A. Emerald and Texas Eastern were unable to reach an

agreement regarding mitigation measures.

      On July 14, 2011, Emerald filed a five-count Complaint against Texas

Eastern, seeking declaratory relief. Emerald averred that it could not fully



2
  Longwall
working face extends entirely across the seam, the work proceeds either
away from or toward the main shaft, and the roof is allowed to cave in

Prot., 789 A.2d 319, 323 (Pa. Cmwlth. 2001) (quoting Webster
International Dictionary 1334 (1993)); see also
Corr.                                                                 lthough

consideration to the decisions and reasoning of the other, neither is bound to
                                                           .



                                  -2-
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      unless, before undermining begins, Texas Eastern plans for,
      implements and pays for appropriate mitigation measures that
      will minimize damage, disruption, or destruction of [the
      Pipelines] from subsidence that may occur from full extraction
      mining by Emerald.

Complaint, ¶ 3.     Emerald claimed that Texas Eastern interfered with




Complaint sought a declaration recognizing its superior property rights, and

interference of those rights by                                            -

79. Emerald also sought injunctive relief


      superior property rights; (2) mandating that Texas Eastern plan
      for, implement, and pay for appropriate and timely mitigation
      measures to permit Emerald to mine all of its coal under the
      Pipelines in D District; and (3) awarding any other appropriate
      relief.

Complaint, at p. 16.   Emerald pled additional counts sounding in trespass

(Count IV) and private nuisance (Count V).

      On August 19, 2011, Texas Eastern removed the case to federal court

                                                                           -

question jurisdiction.3 The federal court disagreed, holding that

      Texas Eastern has not shown that (i) Congress intended to
      preempt the Pennsylvania laws at issue in this case, (ii) there is
      a conflict between Pennsylvania law and [federal law] such that
      compliance with both is impossible or would prevent the
      accomplishment of congressional objectives, or (iii) that

3
  Texas Eastern claimed that two federal statutes completely preempted
                      the Natural Gas Pipeline Safety Act, 49 U.S.C.A.
§§ 60101 et seq., and the Natural Gas Act, 15 U.S.C.A. §§ 717 et seq.


                                  -3-
J-A16021-14

     Congress legislated comprehensively to occupy an entire field of
     regulations, leaving no room for the Pennsylvania laws at


Pa. Servs. Corp. v. Tex. E. Transmission, LP, 2011 U.S. Dist. LEXIS

117559, at *3-*4 (W.D. Pa. 2011).         On that basis, the federal court

remanded to the Court of Common Pleas of Greene County for disposition of

the matter under Pennsylvania law. Id. at *4.

     Before the common pleas court, Texas Eastern filed Preliminary

                                        h the trial court denied. Trial Court

Order, 1/10/12. Thereafter, Texas Eastern filed its Answer, New Matter and



injunctive relief. Texas Eastern averred that the Pipelines were constructed

prior to 1967; the predecessors of Emerald knew or had reason to know of

the Pipelines above their coal estates; and the Pipelines would be materially



19. Texas claimed that the right of Emerald (and its predecessors) to seek

just compensation for the coal estates in D District accrued not later than

when the Pipelines were constructed, and the statute of limitations for any

such action has expired. Id., ¶¶ 23-24. Texas Eastern further claimed that

the waivers of support, relied upon by Emerald, do not permit the removal of

subjacent support for the Pipelines through the type of mining planned by

Emerald.   Id., ¶ 29.    Texas Eastern claimed ownership of the right to

subjacent support of the Pipelines; that it had acquired the right to



                                 -4-
J-A16021-14

subjacent support by means of a de facto taking or through adverse

possession/prescriptive easement; and that Emerald was liable to Texas

Eastern for trespass, negligence and unjust enrichment. Id., ¶¶ 33-70.

     Emerald filed a Motion for Preliminary Injunction on May 17, 2013.

Emerald sought injunctive relief requiring Texas Eastern to plan and

complete mitigation measures, and to pay for those measures.       After the

close of discovery, Emerald filed a Motion for Partial Summary Judgment in

its declaratory judgment action, seeking a declaration that Emerald owns the

coal estate, support estate and mining rights underlying the surface of D



executed in the early 1900s. Texas Eastern filed its own Motion for Partial

Summary Judgment seeking declaratory relief, claiming ownership of the

support estate by deed, inverse condemnation (a de facto taking) and/or

adverse possession.

     A



Partial Summary Judgment, and declaring the rights of the parties as to the

mining of coal under the Pipelines.    Thereafter, Texas Eastern filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.

     Texas Eastern now presents the following claims for our review:

     Whether, by granting partial summary judgment and entering
     declaratory judgment in favor of Emerald as opposed to Texas


                                -5-
J-A16021-14

     Eastern with regard to ownership and control of the subjacent
     support for the Pipelines, the [trial court] erred by determining
     that:

     (a) The deeds that Emerald cites as establishing its right to
     remove the subjacent support for the Pipelines actually convey
     that right to it[?]


     did not (de facto) acquire the right to subjacent support for the
     Pipeline known as Line 2 when, in the 1940s, it constructed that
     Pipeline across the underlying coal reserves that, at the time,


     (c) Texas Eastern has not, by adverse possession, otherwise
     acquired the right to subjacent support for the Pipelines[?]

Brief for Appellant at 5-6 (issues renumbered).

     Initially, we observe our standard of review:

     Our scope of review of an order granting summary judgment is
     plenary. [W]e apply the same standard as the trial court,
     reviewing all the evidence of record to determine whether there
     exists a genuine issue of material fact. We view the record in
     the light most favorable to the non-moving party, and all doubts
     as to the existence of a genuine issue of material fact must be
     resolved against the moving party. Only where there is no
     genuine issue as to any material fact and it is clear that the
     moving party is entitled to a judgment as a matter of law will
     summary judgment be entered.

     Motions for summary judgment necessarily and directly implicate

     Thus, a record that supports summary judgment will either (1)
     show the material facts are undisputed or (2) contain insufficient
     evidence of facts to make out a prima facie cause of action or
     defense and, therefore, there is no issue to be submitted to the
     [fact-finder]. Upon appellate review, we are not bound by the
                         sions of law, but may reach our own

     order only upon an error of law or an abuse of discretion.




                                 -6-
J-A16021-14

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-86 (Pa. Super.

2013) (citations and quotation marks omitted).

      Texas Eastern first claims that

      even if common law principles regarding the meaning and
      functionality of deeds alone govern the question of who owns

      did not establish that, under these principles, it has the right to
      remove the support for the Pipelines throughout the entire D
      District.

Brief for Appellant at 29. Texas Eastern claims that the conveyance of coal

in a deed does not necessary amount to a waiver of the right to subjacent

support by the grantor.       Id. at 30-31.        Citing Penman v. Jones, 100 A.



estate,   right   title,   interest,    benefit,    property,   claim   and   demand

                                       te a conveyance of the right to subjacent

support. Brief for Appellant at 31. According to Texas Eastern, the deeds in



surface overlying D District. Id.

      Pennsylvania recognizes three discrete estates in land:             the surface

estate, the mineral estate, and the right to subjacent (surface) support.

Hetrick v. Apollo Gas Co., 608 A.2d 1074, 1077 (Pa. Super. 1992).

Because these estates are severable, different owners may hold title to

separate and distinct estates in the same land.             Id.

separation of the minerals from the surface, the owner of the mineral estate

                                                                               Smith


                                       -7-
J-A16021-14

v. Glen Alden Coal Co., 32 A.2d 227, 235 (Pa. 1943).              However, this

servitude of subjacent support is a separate estate in land, and is sometimes

                                     Id.

Pennsylvania law that it is the owner of the surface land who has the

proprietary right to support of the surface[,] . . . [i]t is equally well settled
                                                                                4



Consolidation Coal Co. v. White, 875 A.2d 318, 327 (Pa. Super. 2005).



the right to support of the surface has been waived.

      When construing a deed,


      what the parties themselves intended. The traditional rules of
      construction to determine that intention involve the following
      principles.  First, the nature and quantity of the interest
      conveyed must be ascertained from the deed itself and cannot
      be orally shown in the absence of fraud, accident or mistake.
      We seek to ascertain not what the parties may have intended by
      the language but what is the meaning of the words they used.
      Effect must be given to all the language of the instrument, and
      no part shall be rejected if it can be given a meaning.     If a
      doubt arises concerning the interpretation of the instrument, it

      ascertain the intention of the parties, the language of a deed
      should be interpreted in the light of the subject matter, the
      apparent object or purpose of the parties and the conditions
      existing when it was executed.

Id. at 326-27 (citations omitted).

4
  In Glen Alden Coal, the Supreme Court concluded that when the testator,
in 1879, lea
                                          Glen Alden Coal Co., 32 A.2d
at 235 (footnote omitted).



                                   -8-
J-A16021-14

      Our review of the record discloses that in the early 1900s, the owners

of the real estate overlying D District executed the Coal Severance Deeds.

                                                                   [a]ll the

Pittsburgh or River vein of coal in and under that tract of land in Franklin



1/29/1900 (emphasis added); accord Deed (Taylor to Patterson), 3/3/1900.

The Coal Severance Deeds conveyed the coal estate,

      [t]ogether with the free, uninterrupted use and enjoyment of
      right of way into and under said land at such points and in such
      manner as may be considered proper and necessary for the
      advantageous and economical operation of, and in the digging,
      mining and carrying away of said coal, and without liability
      therefor, and hereby waiving any and all damages that
      might or could arise therefrom by reason of such digging,
      mining and carrying away of all said coal, together with the
      privilege of carrying, transferring and removing through said
      described premises this and other coal now owned or hereafter
      acquired by said party of the second part, his heirs and assigns,
      reserving the right to drill said coal for oil and gas.

Deed (Pratt to Lackey), 1/29/1900, at 2 (emphasis added); accord Deed

(Taylor to Patterson), 3/3/1900, at 1-2 (emphasis added).          The Coal

Severance Deeds conveyed to Emerald the right

the surface, and expressly waived all liability for damages, including

damages to the surface, caused by the removal of said coal. Through this

language, the Coal Severance Deeds expressly waived the right of support of

the surface estate.

      This interpretation is further supported by subsequent deeds in




                                 -9-
J-A16021-14

through a Coal Severance Deed from the Administrators of the Estate of Ezra



conveyed to Miller

      [a]ll the Nine-Foot Vein of coal, known as the Pittsburgh or River


                               *        *    *

      TOGETHER with the free and uninterrupted right of way into,
      upon and under both of said tracts of land and at such points
      and in such manner as may[]be proper and necessary to mine
      and remove all and every part of said coal without being
      required to provide for the support of the overlying strata
      or surface and without being liable in any event for any injury
      or damage done to the same or to anything therein or thereon
      by reason thereof, with all reasonable privileges for shafting,
      pumping, ventilating and draining the mines and the right to
      open, maintain and keep roads and ways in and through said
      mine forever for the transportation of said coal minerals
      materials and other things from other lands without being liable
      for any damage to said land or to anything therein or thereon.

      THE said first party[,] his successors and assigns, to have the
      right to drill through said Vein of Coal for oil and gas without
      liability for damages.

Deed (Sayers to Miller), 5/24/1920.

      In summary, unlike the deed in Penman, the Coal Severance Deeds



all liability for damages caused by the extraction of said coal.     By their

terms, the Coal Severance Deeds waived the right of support of the surface

est

lacks merit.




                                   - 10 -
J-A16021-14




owns and controls the support estate underlying Line 2. Brief for Appellant

at 12.   Texas Eastern argues that its predecessor-in-title, Defense Plant



                                                   Id. at 10. Texas Eastern

asserts that when DPC acquired the surface rights, it acquired the right to

subjacent support through a de facto taking. Id. 12-13. Specifically, Texas

Eastern argues that when an entity clothed with the power of eminent

domain, i.e., DPC, acquired the right-of-way, any preexisting contractual

waiver to the right of support was transferred to the United States, in order

to protect the public interest.   Id. at 14.   Because Texas Eastern is the



continue use of the support estate. Id.

     In support, Texas Eastern directs our attention to case law holding

that the right of eminent domain cannot be abridged or defeated by

contracts between private owners, and that an entry by the state upon the

surface constitutes an entry upon the subjacent strata so far as necessary to

support the surface for, inter alia, pipelines. Id. at 14-15 (citing Penn Gas

Coal Co. v. Versailles Fuel Gas Co., 19 A. 933, 933 (Pa. 1890)). Texas

Eastern argues that the trial court erred in concluding that the holding in

Penn Gas Coal is limited to those cases where entry is made under the

right of eminent domain.    Brief for Appellant at 16.   Additionally, Texas



                                  - 11 -
J-A16021-14

Eastern, relying upon Griggs v. Allegheny County, 369 U.S. 84 (1962),

argues that the government need not formally condemn property to acquire

the support estate.      Thus, Texas Eastern claims, the United States

effectuated a de facto taking of the support estate. Brief for Appellant at 17.

         de facto taking under either the 1964 or current Eminent Domain

Code occurs when an entity with eminent domain powers substantially



Williams v. Borough of Blakely, 25 A.3d 458, 464-65 (Pa. Cmwlth. 2011).

There are three elements required to establish a de facto taking.        In re

                                                  -of-Way for State Route

0079, Section 290, a Limited Access Highway in Township of

Cranberry                                            Cranberry

condemnor must have the power to con                             Id. Second,



substantially deprived the property owner of the beneficial use and

enjoyment of the property.     Id.; see also Conroy-Prugh Glass Co. v.

          Transp., 321 A.2d 598, 599 (Pa. 1974).         Third, the proponent




Cranberry, 805 A.2d at 68.

      Here, Texas Eastern failed t                            purchase of the




                                 - 12 -
J-A16021-14

severed, effectuated a de facto taking of the support estate. The evidence

                                                                           ived

Emerald of the beneficial use and enjoyment of its property.      There is no

evidence that Emerald was precluded from mining under the property of DPC

upon its acquisition of the surface estate. Further, there is no evidence that

any   deprivation   was   the

                                                        See Cranberry, 805

A.2d at 68.

                                     Penn Gas Coal is unavailing. In Penn

Gas Coal, the Pennsylvania Supreme Court explained that,

      [i]f the sale of the coal be made in the usual manner, the
      purchaser takes it subject to the burden of surface support, and
      cannot remove it without leaving a sufficient quantity to support
      the surface[.] An entry in that case upon the surface has the
      same effect as though made before the sale of the coal, and the
      right to surface support residing in the owner of the surface
      passes to the corporation when it appropriates the surface. If, in
      addition to severing the coal from the surface by a sale, the
      owner releases his vendee and the underlying estate from the
      obligation of surface support, the release is binding upon him
      and those taking title from him, but it cannot bind the state, or
      its grantee, entering by virtue of the title paramount residing in
      the sovereign. The right of eminent domain cannot be
      abridged or defeated by the contracts between private
      owners, or by the release of the owner of the surface. An
      entry by the state upon the surface is an entry upon the
      subjacent strata so far as they are necessary to support
      the surface for the purposes of the canal, railroad, pipe
      line, or other structure to be built thereon.

Penn Gas Coal, 19 A. at 933 (emphasis added). Under Penn Gas Coal, to

acquire both the surface and support estate, the Commonwealth must



                                 - 13 -
J-A16021-14




              i.e., through the exercise of the power of eminent domain. Id.

      It is particularly notable that DP



necessary to provide surface support.       To acquire the coal necessary to

support the surface, DPC was required to convene a State Mining

Commission.

      Pursuant to 52 P.S. § 1501, the State Mining Commission is vested

with exclusive jurisdiction to determine, inter alia

left in place for support purposes and to assess the damages suffered by the

                       Moffat Appeal, 161 A.2d 352, 354-55 (Pa. 1960). If

DPC, acting on behalf of the United States, had sought to acquire the

support estate, it could have convened a State Mining Commission within six

years of its acquisition of the surface estate.        See H.C. Frick Coke

Company Appeal, 42 A.2d 532 (Pa. 1945) (prior to the enactment of the

Judicial Code, providing that an application to convene a State Mining

Commission had to be filed within six years of the declaration of taking);

see also 42 Pa.C.S.A. § 5527 (

proceedings must be commenced within six years . . . (6) Any civil action or

proceeding which is neither subject to another limitation specified by this

subchapter nor excluded from the application of the period of limitation by




                                  - 14 -
J-A16021-14

State Mining Commission to acquire the support necessary for the Pipeline.

Thus, our review reflects no evidence that DPC had acquired the support

estate. Further, the lack of a State Mining Commission proceedings supports



support of the surface.

                                                               Griggs, relied

upon by Texas Eastern, provides no support. In Griggs, the Supreme Court




                                         Griggs, 369 U.S. at 89 (citation and




beneficial use and enjoyment of his property, was described by the Supreme

Court as follows:

      Regular and almost continuous daily flights, often several
      minutes apart, have been made by a number of airlines directly

      flights it was often impossible for people in the house to
      converse or to talk on the telephone. The plaintiff and the
      members of his household (depending on the flight which in turn
      sometimes depended on the wind) were frequently unable to
      sleep even with ear plugs and sleeping pills; they would
      frequently be awakened by the flight and the noise of the
      planes; the windows of their home would frequently rattle and at
      times plaster fell down from the walls and ceilings; their health
      was affected and impaired, and they sometimes were compelled
      to sleep elsewhere. Moreover, their house was so close to the
      runways or path of glide that as the spokesman for the members




                                - 15 -
J-A16021-14



Id. at 87.

        Unlike in Griggs, in the instant case, there is no evidence of an



by DPC, upon the construction or use of the Pipelines. There is no evidence

that,   by   constructing   the   Pipelines,   Emerald    was    immediately   and

unavoidably precluded from using all other mining methods to remove its

coal.   Simply put, there simply is no evidence that DPC or its successor,

Texas Eastern, effectuated a de facto taking of the support estate.

        Texas Eastern next argues that it acquired title to subjacent support of

the Pipelines through adverse possession. Brief for Appellant at 19. Texas



operated the Pipelines above the D District and physically supported them

from below      by continually occupying and using the support estate to

                                   Id. Texas Eastern asserts that Emerald has

been on reasonable notice of this occupation.            Id.    According to Texas

Eastern, the trial court erred in holding that the support estate cannot be

acquired through adverse possession. Id. Texas Eastern disputes the trial



it refrained from making use of it. Id. at 20. Rather, Texas Eastern claimed

that it acquired the right to subjacent support because it had been making

active, hostile use of the support estate for over 50 years. Id. at 19.




                                   - 16 -
J-A16021-14




the grant of this extraordinary privilege should be based upon clear

            Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001).

                                              must prove actual, continuous,

exclusive, visible, notorious, distinct and hostile possession of the land for

twenty-              Johnson v. Tele-Media Co., 2014 Pa. Super. LEXIS



                     Id.

prescription, the use upon which it is based must be adverse to the rights of

the owner of the        Flannery, 786 A.2d at 258.

      Texas Eastern cites Cochran Coal Co. v. Municipal Management

Co., 110 A.2d 345 (Pa. 1955), to support its contention that it has

continuously and adversely trespassed upon the support estate for over 50

years. However, the circumstances in Cochran Coal Co. are far different

from those in the instant case.

      In Cochran Coal Co., a coal company filed a cause of action in

trespass to recover damages from a municipal water authority and

                                             Id.

complaint averred that the defendants had constructed a dam, filtration



                      Id.   Further, the complaint averred that water had



                                  - 17 -
J-A16021-14

escaped, through fissures and underground crevices, into the mine,

depriving the coal company of the use of the coal under the dam. Id.   Even

though the authority was vested with the power of eminent domain, the

Pennsylvania Supreme Court held that the coal company could assert a

                                                               vation of the

                                                         Id. at 347.

      Here, there is no such trespass by Texas Eastern, or open, hostile or



There is nothing of record suggesting that Emerald would be held liable for



Further, there was no action or activity, undertaken by Texas Eastern, that

deprived Emerald of its coal interests underlying the surface of D District.



through adverse possession, fails.

      For the above-

and affirm the Order of the trial court.

      Motion to Quash denied; Order affirmed.

      Ott, J., files a Concurring Statement.

      Donohue, J., joins both Opinion and Concurring Statement.




                                  - 18 -
J-A16021-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2014




                          - 19 -
