J-A30038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE MONONGALIA COUNTY COAL 

COMPANY,

 Appellee

 v.

WEISS WORLD, L.P. AND CHRISTOPHER

P. WEISS,

 Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

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 

 

3 Mon 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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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