Fiore v. County of Allegheny

16 A.3d 1179, 2011 WL 294433

• Court: Commonwealth Court of Pennsylvania
• Decided: February 1, 2011
• Docket: 1805 C.D. 2009, 1806 C.D. 2009
• Status: Published

Opinions

OPINION BY

President Judge LEADBETTER.

Nello Fiore appeals from the order of the Court of Common Pleas of Allegheny County, which declared that coal rights owned by Fiore “do not confer upon [him] the right to surface mine and/or strip mine” a public park in Allegheny County (County). We affirm.

Fiore filed two actions with common pleas after the County denied him access to the park, known as South Park, for preliminary drilling.¹ The first action sought a declaratory judgment that Fiore had the right to strip mine South Park, while the second sought the appointment of a Board of Viewers, alleging that the County’s denial of access to the park was a defacto taking.² The County filed preliminary objections to both actions. In both sets of preliminary objections, the County asserted, among several other arguments, that Fiore’s right to mine the property did not include a right to strip mine.

At a hearing, the parties “specifically requested ... that the Court first resolve the issue of whether or not [Fiore] has the right to employ a strip mining method to extract coal from the subject property.” Common pleas opinion at 2. Common pleas took evidence on the matter, which included expert and lay testimony as well as a site visit, and then entered the order at issue in this appeal, under the docket numbers of both cases, declaring that Fiore does not have the right to strip mine the park.³ Appeals to this court in both actions followed. This court consolidated the two appeals.

The parties agree Fiore owns the coal rights under South Park. These rights were granted by deed to the Pennsylvania Mining Company in 1902, and then again in a subsequent deed in 1909. The 1902 deed grants the right to:

All the coal ... in and under all that certain tract of land.... Together with all and singular property improvements ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatever thereunto belonging or in anywise appertaining and the reservations and remainders rents, issues and profits hereof; and all the estate, right, to the interest property, claim and demand whatsoever, of the said party of the first part, in law, equity or otherwise howsoever of in and to the same and every part thereof.

Reproduced Record (R.R.) at 17a-22a. The 1909 deed, apparently intended to clarify the rights granted, states:

Together with the right to mine and remove all and any part of the coal, without being required to provide for the support of the overlying strata or surface, and without being liable for any injury to the same, or to anything thereon or therein by reason therefore by reason of the manufacture of the same, or other coal into coke, and with all reasonable privileges for venting, punching and draining the mine together with the free and uninterrupted right of way through and under said lands, and to build, keep and maintain, roads and ways, in and through said mines forever, for the transportation of said coal, and if coal and other things necessary for mining purposes, from and to other lands which now or hereafter may belong to said party of the second part, its successors and assign. This deed being made for the purpose of vesting mining rights in the said Pittsburgh Coal Company of Pennsylvania, formerly Pennsylvania Mining Company. Together with all and singular treatments, hereditaments and appurtenances thereunto belonging or in anyways appertaining and the reversions, remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, claim and demand whatsoever, as well as in equity of the said parties of the first part, of, in or to the described premises, and every part and parcel thereof, with the appurtenances. To Have and To Hold, all and singular the above mentioned and described premises together with the appurtenances unto the said party of the second part, its successor and assigns forever.

R.R. at 23a-27a. There appears to be no dispute that land referred to in the above deeds includes South Park, and that Fiore validly holds title under both deeds.

Before common pleas, Fiore asserted that the deeds granted him a right to strip mine the park because they met the “four factor test” laid out in Commonwealth v. Fitzmarbin, 376 Pa. 390, 102 A.2d 893 (1954). Common pleas expressed skepticism that Fitzmartin was still good law, but found the issue did not need to be decided, because Fiore had failed to establish two of the four factors. We find that not only does Fitzmartin not control the outcome of this case, but also that the elements within that case flagged by Fiore cannot be fairly characterized as setting forth a test for determining the right to strip mine.

In Fitzmartin, our Supreme Court found that the deed at issue gave its holder the right to strip mine. That decision was based on an evaluation of the language in the specific deed in that case and did not hinge on the factors listed by Fiore and common pleas. The so-called “four factor test” comes from dicta in Fitzmar-tin, in a portion of the opinion in which our Supreme Court is summarizing one party’s argument:

The defendants, who are lessees of the mineral rights, claim a right to strip mine the coal upon the following grounds: (a) that the general language of the reservation is broad enough to include strip mining; (b) that there is no prohibition against strip mining, nor limitation of mining to deep mining; (c) that they are expressly given the right to mine all coal on the land, together with a release of liability for damages to the land; (d) that the nature of the land involved is unimproved rocky mountainous terrain; and (e) that the following cases which the learned Chancellor, in a very able opinion relied upon, are analogous and controlling ...

Fitzmartin, 376 Pa. at 395, 102 A.2d at 895 (citations omitted). Fiore takes the first four of the five items on this list, and, with very little explanation, dubs them the “four factor test.” Fiore cites no cases which have applied this “test.” Common pleas found that Fiore had failed to establish the first and fourth elements of this test. We, however, find that the above language is not controlling.

In fact, the decision in Fitzmartin was based on the text of the particular deed, which dated from 1921 and granted the right to “all the coal ... in and under the surface ... without any liability whatsoever for damages to said land.” Id. at 396, 102 A.2d at 895. The Court found that in order to give meaning to the language of the deed, and allow access to all coal in and under the surface, strip mining must be allowed. Fitzmartin distinguished an earlier case, Rochez Brothers, Inc. v. Duricka, 374 Pa. 262, 97 A.2d 825 (1953), by noting that Rochez involved agricultural land, while the land at issue was unimproved.

Less than ten years after Fitzmartin was decided, our Supreme Court began to move away from its holding in that case. In Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 170 A.2d 97 (1961), the Court held that a similar deed did not include the right to strip mine. The deed in that case:

excepted and reserved to the grantor, ownership in the coal and other minerals in, under and upon the land, and also the right and privilege of removing the same. The grantor was given the right to make and drive tunnels and passageways under the surface for the purpose of mining. The deed also stipulated, inter alia, that the grantor would not, in any event, incur liability for any injury to the surface of the land or improvements thereon, by reason of the mining and removal of the coal or minerals, and did not guarantee lateral or vertical support.

Id. at 385-86,170 A.2d at 98. Interpreting this deed, the Court found that “[w]hat the parties manifestly intended was that the coal was to be removed by the method, then known, and accepted as usual and commonplace. This was vertical tunnel, or shaft mining.” Id. at 389,170 A.2cl at 100-01.

The Supreme Court moved further away from Fitzmartin in Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In that case, our Supreme Court examined a deed which granted title to the coal in and under the tract, “[tjogether with the right ... to drain and Ventilate said mines by shafts or otherwise.... With a full release of and without liability for damages for injury to the surface.” Id. at 49-50, 266 A.2d at 263-64. Our Supreme Court stated that:

no land owner would lightly or casually grant strip mining rights, nor would any purchaser of land treat lightly any reservation of mining rights which would permit the grantor or his assignee to come upon his land and turn it into a battleground with strip mining. Therefore, the burden rests upon him who seeks to assert the right to destroy or injure the surface to show some positive indication that the parties to the deed agreed to authorize practices which may result in those consequences. Particularly this is so where such operations were not common at the time the deed was executed.

Id. at 50, 266 A.2d at 263 (internal citations and quotations omitted). The deed at issue in Steivart was executed in 1902, and testimony in that case established that strip mining was not common in the area at the time the deed was signed. Our Supreme Court in Stewart went on to find not only that the deed at issue contained no positive indication that strip mining was intended, but also that language in the deed referring to the right to drain and ventilate the mine was an indication that underground mining had been intended:

The right to mine and remove coal by deeds conveying land in language peculiarly applicable to underground mining does not include the right to remove such coal by strip mining methods. Nor will the mere authorization to ‘mine,’ without more, encompass the right to strip mine.

Id. at 52, 266 A.2d at 264 (internal citations omitted). The Court in SteivaH expressly did not consider the current use of the surface land controlling, stating that, “the utility or quality of the land involved is not a determinative factor.” Id. at 46 n. 2, 266 A.2d at 261 n. 2 [citing New Charter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830 (1963) ].

In both SteivaH and Wilkes-Baire Township School District, the Court declined to explicitly overrule Fitzmartin, instead distinguishing it based on extremely subtle differences between the language of the deeds.⁴ However, it is clear that our Supreme Court has been moving away from its holding in Fitzmartin, and we find that the Supreme Court’s more recent decisions in Wilkes-Baire Township and Stewart control.⁵ This court’s prior rulings on this topic take a similar view, looking to Stewart as definitively establishing the rules under which a deed should be interpreted when considering strip mining rights. See Empire Coal v. Dep’t of Envtl. Res., 678 A.2d 1218 (Pa.Cmwlth.1996); Compass Coal Co., Inc. v. Pa. Game Comm’n, 71 Pa.Cmwlth. 252, 454 A.2d 1167 (1988).

Taking a similar approach, our Supreme Court has also found no right to strip mine in cases where the deed grants the right to mine “without being required to provide support of the overlying strata,” reasoning that this phrase makes clear that the intent of the parties to the deed was that the overlying strata would stay in place, not be removed by strip mining. Merrill v. Mfrs. Light & Heat Co., 409 Pa. 68, 185 A.2d 573 (1962); Rochez Bros. This approach has recently been followed by the Superior Court. Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547 (Pa.Super.2004).

It is clear from an examination of the deed in this case and the facts found by common pleas that Fiore does not have a right to strip mine in South Park. Common pleas found as a fact that “at the time of the original conveyance, strip mining was not employed in the Commonwealth of Pennsylvania or in the Allegheny County area.” Common pleas opinion at 15. Under Stewart, the burden was therefore on Fiore to establish that the intent of the parties to the original deeds included strip mining. Not only did Fiore fail to present any evidence which would tend to establish this before common pleas, but, as in Stewart, the deeds contain language that positively indicates that shaft mining was intended (“privileges for venting, punching and draining the mine”).⁶ R.R. at 23a-27a. In addition, the 1909 deed grants the right to mine “without being required to provide for the support of the overlying strata or surface,” which, under Merrill and Rochez Brothers, is an indication that the parties to the deed intended that the surface would not be removed. Id. For these reasons, we affirm the conclusion of common pleas that the deed at issue does not encompass a right to strip mine.⁷,⁸

judge McCullough did not participate in the decision in this case.

ORDER

AND NOW, this 1st day of February 2011, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby AFFIRMED.

1 . These two actions were heard together by common pleas, and were both subject to the order appealed in this case. They were not, however, formally consolidated until after they were appealed to this court.

2 . Fiore asserts that, based on his estimate of the amount of coal under the park, his mineral rights are worth over $100 million. Fiore inherited the rights from his brother, Fred Fiore. Fred Fiore purchased the rights in 1985 for $5000. In 1997, after the death of Fred, Nello Fiore, in his capacity as executor of his brother's estate, reported the value of the rights as $100.

3 .In its opinion, common pleas stated that it "did not and has not ruled upon the pending preliminary objections.” Common pleas opinion at 2. However, both parties argue, and this court agrees, that the order at issue in this case effectively granted at least one of the County's preliminary objections and that the order is dispositive of the entire case and therefore serves as a final appealable order. See Pa. R.A.P. 341.

Because the County’s preliminary objections in both actions included the argument that Fiore had no right to strip mine, we find it impossible to conclude that a court order to exactly that effect could be viewed as doing anything other than sustaining the objection in both cases. In addition, the order that Fiore had no right to strip mine effectively ended this litigation at the trial court level. If common pleas' order stands, Fiore cannot prevail in his declaratory judgment action, as the court has determined he does not have the right he seeks to have declared. In addition, he cannot prevail in his action for the appointment of a Board of Viewers, because his claim that the County’s actions constituted a taking was contingent on his asserted right to strip mine.

4 . While the deeds in this case, Wilkes-Baire, Stewart and Fitzmartin all have unique language, they have such striking similarities that making a textual distinction between them is extremely difficult. All four deeds were written at a time when shaft mining was the predominant, if not exclusive, method of coal mining. All four deeds include a general grant of rights to the coal under the subject property, and while they do not explicitly specify a method of removal, they all refer to procedures exclusive to shaft mining, such as vcnting and draining. All four deeds include a release of liability for damage to the surface estate and waive the right of support. With this level of similarity in the essential elements of the deed and the circumstances surrounding their execution, any distinctions between them are exceedingly tenuous.

5 . Fiore asserts that Stewart can be distinguished because it dealt with land that was improved, whereas Fitzmartin and, allegedly, this case deal with unimproved land. This argument suffers from a number of flaws. First, common pleas, based on extensive testimony and a site visit, found that the park at issue in this case was improved property. Second, and even more importantly, Stewart explicitly states that the current use of the land is not a determinative factor. Stewart, 439 Pa. at 46 n. 2, 266 A.2d at 261 n. 2. Considering the current status of the land is antithetical to Stewart because the core holding of that case is that the intent of the original parties to the deed must be controlling. The use that a particular tract has been put to more than a hundred years after the execution of the deed sheds no light whatsoever on the intent of the original parties, and therefore should not be considered.

6 .As Stewart and expert testimony before common pleas in this case made clear, ventilation and drainage are issues unique to shaft mining, and are not a part of the strip mining process.

7 . Fiore also argues that ambiguities in deeds should be resolved against the grantor and in favor of the grantee, which in this case would mean resolving any ambiguity in his favor. However, the Supreme Court in Stewart squarely addressed this argument, and while it acknowledged the rule of construction, it held that it "ought not be so liberally applied as to make a contract for the parties that they did not intend to make for themselves.” Stewart, 439 Pa. at 52, 266 A.2d at 264. Just as in Stewart, we find that as there is no ambiguity in the deed, this rule of construction has no application in this case.

8 . Finally, Fiore also argues that this court should disregard prior litigation regarding the mining rights on the subject tract that took place in 1978 and 1979. This litigation, as described in the briefs, was a series of contract disputes between Fiore’s brother, the County, and several mining companies, which does not appear to have any bearing or res judicata effect on the current action. Common pleas mentioned this litigation in its opinion, but did not expressly rely upon it. The County argues that some of the positions taken in these suits constitute judicial admissions by Fiore's predecessors in title, but it is unnecessary to reach this issue to resolve this case.