Nicholas Malfitano Sep. 28, 2015, 1:25pm


PITTSBURGH – On Sept. 4, the Superior Court of Pennsylvania denied the appeal made by a Waynesburg couple against a coal company they felt didn’t have the right to construct a new mine under their property.

Brought before judges John T. Bender, Patricia H. Jenkins and John L. Musmanno, the appeal of Chris and Amber Paluti. of an Oct. 15, 2014, decision of the Greene County Court of Common Pleas was not successful. The trial court had sustained preliminary objections filed by Cumberland Coal and Emerald Coal (“Cumberland”) as to declaratory judgment and nuisance claims in the case.

In June 1992, the Palutis bought three tracts of property in Whiteley Township, including all rights to surface estates and sub-surface mineral estates, not reserved to third parties through prior severance deeds in the chain of title. In 1900 and 1903, two deed reservations, each for a single seam of coal (Pittsburgh seam), were made beneath what became the Paluti estate. 

Cumberland asserts the right under the 1900 and 1903 deeds to construct a slope 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.

Cumberland said this new mine would only be used to transport coal from third party sources to the portal outside the Palutis’ property – an arrangement the plaintiffs vigorously opposed.

The plaintiffs said a vacant mine exists under their property from mining activities in the past century, and have no objections to that mine being used; their objections only lay with the construction of a new one.

On June 10, 2014, the Palutis filed a three-count complaint against Cumberland to prevent the creation of the new mine. Count I alleged construction of the new mine constituted 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.

On Oct. 15, 2014, the trial court dismissed Counts II and III, but 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. The Palutis appealed the decision to the Superior Court of Pennsylvania four weeks later.

However, the Superior Court decided the Palutis’ appeal couldn’t be decided and quashed it.

“Here, all three counts of the Palutis’ complaint seek the same injunctive relief, a decree ‘preventing or restraining’ 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,” Jenkins said. 

“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 Oct. 15, 2014 order ‘does not effect a denial of permanent injunctive relief so as to trigger the allowance of an interlocutory appeal,” Jenkins added.

Jenkins concluded by stating the appeal would not move forward.

“Although the parties urge us to exercise jurisdiction over this appeal and have obviously devoted considerable time and effort to their briefs, no rule authorizes us at this juncture to decide this appeal on the merits. Appeal quashed,” Jenkins said.

The Superior Court of Pennsylvania case 1885 WDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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