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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-A30038-18
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). -2- J-A30038-18
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. -3- J-A30038-18
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). -6- J-A30038-18
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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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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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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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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