J-A19028-15 

2015 PA Super 185 

1 

CHRIS PALUTI AND AMBER PALUTI IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellants 

v. 

CUMBERLAND COAL LP AND EMERALD 

COAL LP 

 Appellee No. 1885 WDA 2014 

Appeal from the Order Entered October 15, 2014 

In the Court of Common Pleas of Greene County 

Civil Division at No(s): AD 416-2014 

BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J. 

OPINION BY JENKINS, J.: FILED SEPTEMBER 4, 2015 

 Chris and Amber Paluti (“the Palutis”) filed a complaint seeking, inter 

alia, a declaratory judgment that Cumberland Coal LP and Emerald Coal LP 

(collectively “Cumberland”) have no right to construct a new mine 

underneath the Palutis’ surface estate. Cumberland filed preliminary 

objections in the form of demurrers to Count II (the declaratory judgment 

claim) and Count III (a nuisance claim), but Cumberland did not file a 

preliminary objection to Count I. The trial court sustained Cumberland’s 

preliminary objections, dismissed Counts II and III with leave for the Palutis 

to file an amended complaint, and stayed proceedings on Count I. 

The Palutis have appealed this order. All parties, including 

Cumberland, contend that the order is appealable. The trial court disagreed, 

and we disagree as well. The Palutis sought declaratory judgment on the 
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ground that Cumberland lacks the right to construct a new mine under deeds 

from 1900 and 1903 that conveyed mining rights to Cumberland’s 

predecessor in interest. The trial court’s order is not appealable as a final 

order under Pa.R.A.P. 341, because (1) it only addressed Cumberland’s 

rights under the 1903 deed but not under the 1900 deed, and (2) it granted 

the Palutis leave to file an amended complaint. Nor, for the reasons 

articulated below, is this order appealable under Pa.R.A.P. 311(a)(4) as an 

interlocutory order denying injunctive relief. For these reasons, we quash 

the Palutis’ appeal. 

On June 8, 1992, the Palutis, by general warranty deed, purchased 

three tracts of real property in Whiteley Township and acquired all rights to 

the tracts’ surface estates and all subsurface mineral rights not reserved to 

third parties through prior severance deeds in the chain of title. Complaint, 

exhibit I. Two such reservations are within the 1900 and 1903 severance 

deeds. Both reservations relate to a single seam of coal (the “Pittsburgh 

seam”) beneath the Palutis’ surface estate.1 Id., exhibits G, H. 

The Pittsburgh seam of coal lies both underneath and beyond the 

Palutis’ surface estate. The portion of the Pittsburgh seam beneath the 

Palutis’ property was fully mined during the past century. Cumberland 

claims to be the successor in interest under the 1900 and 1903 deeds to the 

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1

 The Palutis own subsurface mineral rights to at least one other seam of 

coal, the “Sewickley seam”. 
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portion of the Pittsburgh seam underneath the Palutis’ property. Complaint, 

¶¶ 36-43. Cumberland also owns part of the Pittsburgh seam outside the 

Palutis’ property. Id. 

Cumberland asserts the right under the 1900 and 1903 deeds to 

construct a slope mine (“the new 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. Complaint, ¶¶ 36-43. The new mine will access the 

Pittsburgh seam beneath third party estates unrelated to the 1900 or 1903 

deeds. Id. Cumberland will use this mine only to transport coal from third 

party sources to the portal outside the Palutis’ property. Id. 

In the 1900 deed, the Palutis’ predecessors in interest, William Orndoff 

et al., granted a mining right to the “Pittsburgh or River”2 seam of coal to 

the grantee, William J. Kyle, Trustee. Complaint, exhibit G. The 1900 deed 

expressly required the grantee to conduct all subsurface transportation 

through the passage created by excavation of the Pittsburgh seam: 

With the rights to the said party of the second part, 

his heirs and assigns to mine and remove all said 

coal without being required to provide or leave 

support for the overlying strata or surface and 

without being liable for any injury to the same or to 

anything therein or thereon by reason thereof, of by 

the manufacture of this or other coal into coke and

with all reasonable privileges for ventilation, 

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2

 The parties agree that the River seam is equivalent to the Pittsburgh seam. 
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pumping and draining the mines and the right to 

keep and maintain roads and ways through said 

mine forever for the transportation of said coal and 

of coal, minerals and other thing... 

Id. (emphasis added). Therefore, the 1900 deed limited the grantee to 

transportation through the mine and prohibited excavation of new passages 

in other subsurface strata. 

The 1903 Deed concerned a different tract of land than the 1900 deed. 

In this deed, George B. Orndoff et al. (the Palutis’ predecessors in interest), 

granted a mining right in the “Pittsburgh or River” seam of coal to the 

grantee, William K. Hatfield. Complaint, exhibit H. This deed contained 

different language than the 1900 deed concerning transportation of mined 

coal from third party sources: 

The party of the second part, his heirs and assigns

shall have the right to mine and carry away all of 

said coal with all the mining rights and privileges

necessary or convenient with mining and removing 

the same without, being required to provide for the

support of the overlaying strata and without 

liabilities for injury to the said surface or to anything 

therein or thereon by reason of the mining and 

removing of said coal or to the manufacture of the 

same or other coal into coke or other products at 

such places as may be selected by said party second

party, his heirs or assigns, together with the right of 

mining and removing under said described premises 

other coal or matter belonging to or that may 

hereafter belong to the said second party his heirs

and assigns. 

Id. (emphasis added). 
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 The Palutis assert that a vacant passage remains intact in the 

Pittsburgh seam under their property from mining activities during the past 

century. The Palutis do not challenge Cumberland’s right to transport coal, 

machinery and materials through this existing passage. Instead, they 

oppose construction of a new passage under their surface estate through 

strata outside the Pittsburgh seam for transportation of coal mined from 

unrelated third party properties. 

On June 10, 2014, the Palutis filed a three count complaint against 

Cumberland. Count I, a statutory action under 53 P.S. § 10617, alleged that 

construction of the new mine constitutes 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. The 

prayers for relief in each count demanded that the court “prevent or 

restrain” Cumberland from constructing the new mine. 

Cumberland filed preliminary objections to Counts II and III of the 

complaint. Cumberland did not address the 1900 deed in its preliminary 

objections to Count II; Cumberland only claimed the right to construct the 

new mine under the 1903 deed. Similarly, the Palutis’ response did not 

address the 1900 deed. 
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On October 15, 2014, the trial court sustained Cumberland’s 

preliminary objections and dismissed Counts II and III, but it 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. 

Noting that Cumberland’s preliminary objections and the Palutis’ 

response did not discuss the 1900 deed, the court limited its analysis to 

whether Cumberland had the right to construct the new mine under the 

1903 deed. Memorandum and Order, 10/15/14, p. 3. The court wrote: 

[W]e turn to the operative language in the 1903 

deed. Does the grant of ‘the right of mining and 

removing under said described premises other coal 

or matter belonging... to said second party’ convey

the right to carve a tunnel under [the Palutis’] land 

but not in the Pittsburgh seam of coal? In our 

opinion it does. The obvious question is the definition 

of premises. Are the premises in this case the 

111.443 acres of surface which the Orndoff grantors

presumably owned when they severed the Pittsburgh 

coal, or are the premises the Pittsburgh coal itself? 

What did the parties to the severance deed intend? 

If ‘said described premises’ means the Pittsburgh 

seam of coal, the grant of removing all other coal or 

matter ‘under said described premises’, gives the 

coal owners the right to tunnel below the Pittsburgh 

coal, which makes no sense. No one would bargain 

for that right. Obviously, the ‘premises’ refers to the 

surface and here William Hatfield purchased the right 

to mine coal and other matter from other lands 

beyond the boundaries of [the Palutis’] predecessors’ 

land and remove it under the land now owned by 

[the Palutis], not necessarily within the Pittsburgh 

coal seam. 

To the extent [the Palutis] rely on the language of

the 1903 deed, they have failed to state a cause of
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action. The construction and maintenance of a slope

shaft then traverses their land at some elevation 

above the Pittsburgh seam of coal and below the 

surface right invades no property right that [the 

Palutis] still possess. 

Id. at 5-6. 

 On October 24, 2014, the Palutis filed a motion for reconsideration 

objecting to the court’s failure to analyze the 1900 deed: 

[T]he Court failed to account for the language of the 

1900 Deed. As a fact that it controls both [the 

Palutis’] real property rights and [Cumberland’s] 

mineral/access rights, it is a critical element of [the 

Palutis’] claim. [Cumberland] only raised demurrer 

as to the 1903 Deed. As such, [the Palutis] only 

addressed the issues raised by [Cumberland] instead

of voluntarily expanding the scope of [Cumberland’s] 

objections. The factual assumption by the Court that 

the 1900 Deed is of no consequence is premature. At

this stage, there is no record, or available analysis, 

providing that the new mine will only traverse 

through portions of [the Palutis’] subsurface property 

controlled by the 1903 Deed. Accordingly, the 

assumption that the 1900 Deed is immaterial 

mistakenly overlooks a large portion of [the Palutis’] 

claim. 

 

Palutis’ Motion For Reconsideration, 10/24/14, p. 4. The court did not act on 

this motion. 

On November 10, 2014, Cumberland filed an application for 

determination of finality under Pa.R.A.P. 341(c).3 Cumberland 

____________________________________________ 

3

 Rule 341(c) provides: 

(Footnote Continued Next Page) 
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acknowledged that the October 15, 2014 order “is not a final order” due to 

“the pendency of Count I” but argued that an immediate appeal would 

facilitate resolution of the entire case.4 Application, p. 3. 

On November 13, 2014, the Palutis appealed to this Court from the 

October 15, 2014 order. 

On December 26, 2014, the trial court issued a “Memorandum to 

Record” opining that the October 15, 2014 order was interlocutory: 

[The Palutis’] land is made up of parts of two tracts 

from which the Pittsburgh coal has been severed by 

two deeds, one in 1900 and the other in 1903. The 

complaint does not specify whether [Cumberland’s] 

shaft or proposed shaft will pierce the part of [the 

Palutis’] land where the coal was severed by the 

1900 deed or the part where the coal was severed by

(Footnote Continued) _______________________ 

[W]hen more than one claim for relief is presented in 

an action ... the trial court ... may enter a final order 

as to one or more but fewer than all of the claims 

and parties only upon an express determination that

an immediate appeal would facilitate resolution of 

the entire case ... In the absence of such a 

determination and entry of a final order, any order or 

other form of decision that adjudicates fewer than all 

the claims and parties shall not constitute a final

order. 

Id. The trial court “is required to act on an application for a determination 

of finality ... within 30 days of entry of the order.” Pa.R.A.P. 341(c)(1). 

“Unless the trial court ... acts on the application within 30 days of entry of 

the order, the trial court ... shall no longer consider the application and it 

shall be deemed denied.” Pa.R.A.P. 341(c)(3). 

4

 The application was denied by operation of law because the court did not 

act on it within thirty days after the October 15, 2014 order. See n. 3, 

supra. 
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the 1903 deed, or both. Our order of October 15, 

2014, held that the mining rights language in the 

1903 deed permitted the coal owners to do what the 

complaint says they are doing or plan to do. We held 

therefore the complaint stated no cause of action if 

[Cumberland’s] works impacted only the land 

described in the 1903 deed. We made no such 

finding with regard to the rights set forth in the 1900 

deed. Unless all of [Cumberland’s] activities are 

within the land bounded by the 1903 deed, and the 

complaint does not say that, [the Palutis] are not out 

of Court on Count II. 

Id. at 2. 

On December 30, 2014, this Court issued a rule upon the Palutis to 

show cause why this appeal should not be quashed as interlocutory. The 

Palutis responded with a letter brief insisting that the October 15, 2014 

order was immediately appealable. Similarly, Cumberland filed a letter brief 

contending that the order was either a final, appealable order or an 

appealable interlocutory order -- thus contradicting its argument below that 

the October 15, 2014 order “is not a final order.” 

On January 15, 2015, this Court permitted the appeal to proceed while 

advising that the panel assigned to this case could revisit the quashal issue. 

The parties have filed briefs renewing their arguments that we enjoy 

jurisdiction. 

“Generally, subject matter jurisdiction has been defined as the court’s 

power to hear cases of the class to which the case at issue belongs.” 

Verholek v. Verholek, 741 A.2d 792, 798 (Pa.Super.1999). “[I]t is wellsettled that the question of subject matter jurisdiction may be raised at any 
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time, by any party, or by the court sua sponte.” B.J.D. v. D.L.C., 19 A.3d 

1081, 1082 (Pa.Super.2011). Our standard of review is de novo, and our 

scope of review is plenary. Id.

Both the Palutis and Cumberland posit that this Court has subject 

matter jurisdiction because the October 15, 2014 order fully resolved the 

Palutis’ declaratory judgment claim. We conclude, however, that the order 

is neither a final, appealable order under Pa.R.A.P. 341 or an appealable 

interlocutory order under Pa.R.A.P. 311. 

We first consider whether the order is final as it relates to Count II of 

the complaint, the action for declaratory judgment. A final order 

is any order that: 

(1) disposes of all claims and of all parties; or 

(2) is expressly defined as a final order by statute; 

or 

(3) is entered as a final order pursuant to [an 

application for determination of finality under Rule 

341(c)]. 

Pa.R.A.P. 341(b). An appeal may be taken as of right from any final order. 

Pa.R.A.P. 341(a).

In certain circumstances, an order deciding a declaratory judgment 

claim constitutes a “final order by statute,” even when other claims remain 

undecided. Pa.R.A.P. 341(b)(2). Section 7532 of the Pennsylvania 

Declaratory Judgments Act, entitled “General Scope Of Declaratory 

Remedy,” provides: 
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Courts of record, within their respective jurisdictions, 

shall have power to declare rights, status, and other 

legal relations whether or not further relief is or

could be claimed. No action or proceeding shall be 

open to objection on the ground that a declaratory 

judgment or decree is prayed for. The declaration 

may be either affirmative or negative in form and 

effect, and such declarations shall have the force and 

effect of a final judgment or decree. 

42 Pa.C.S. § 7532 (emphasis added). Our Supreme Court has made clear, 

however, that an order deciding a declaratory judgment claim is final and 

appealable under section 7532 if, and only if, it fully resolves the declaratory 

judgment claim. United States Organizations for Bankruptcy 

Alternatives, Inc. v. Department of Banking, 26 A.3d 474, 479-80 

(Pa.2011). A declaratory judgment order which merely narrows the dispute 

instead of resolving it is not final or appealable. Id. (order granting in part 

and denying in part declaratory judgment petition challenging 

constitutionality of Debt Management Services Act was not final, appealable 

order; petition challenged Act in its entirety, but court struck only two 

provisions of Act, did not address several of petitioners’ arguments, and did 

not decide whether petitioners were entitled to full relief requested); 

Pennsylvania Bankers Ass ‘n v. Pennsylvania Dept. of Banking, 948 

A.2d 790, 796-97 (Pa.2008) (order sustaining preliminary objections to 

some, but not all, declaratory judgment claims challenging constitutionality 

of statute merely narrowed scope of claims and did not constitute final 
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order, because plaintiffs may still be able to obtain relief through remaining 

declaratory judgment claims).

The trial court correctly observed that its October 15, 2014 order is 

not final and appealable as it relates to Count II. The order expressly 

permits the Palutis to amend the complaint, so the Palutis “are not out of 

court on [their declaratory judgment action].” Memorandum to Record, p. 2. 

Moreover, the order addresses the parties’ rights under the 1903 deed but 

not under the 1900 deed, so it merely narrows the dispute instead of 

resolving it. Bankruptcy Alternatives, Pennsylvania Bankers Ass’n, 

supra. The 1900 deed is still a potential avenue for declaratory relief, and 

this matter is for the trial court to resolve in the first instance. In short, the 

order is not appealable under section 7532 and therefore is not a final order 

under Pa.R.A.P. 341(b)(2). 

Nor is the order appealable under Rule 341(b)(1), because it does not 

dispose of all claims: the court did not address the 1900 deed in the course 

of deciding Cumberland’s preliminary objections, the court granted the 

Palutis leave to amend their complaint, and the court never ruled on Count I 

at all. Finally, the order is not appealable under Rule 341(b)(3), because 

Cumberland’s application for determination of finality was denied by 

operation of law. 

Turning to the private nuisance claim in Count III, the order is not final 

under Rule 341(b)(1) and (b)(3) for the reasons given with regard to Count 
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II. Nor is the order final under Rule 341(b)(2), because no statute 

designates an order disposing of a private nuisance action as “final”. 

Perhaps anticipating that the order is not final, Cumberland makes the 

alternative argument that the order is appealable under Pa.R.A.P. 311(a)(4), 

which permits interlocutory appeals as of right from “an order that grants or 

denies, modifies or refuses to modify, continues or refuses to continue, or 

dissolves or refuses to dissolve an injunction.”5 We disagree, based on the 

Commonwealth Court’s persuasive logic in West Pittsburgh Partnership 

ex rel. WEHAV Governing Com’n v. McNeilly, 840 A.2d 498 

(Pa.Cmwlth.2004). All three counts of the complaint in McNeilly sought the 

same injunctive relief: a decree prohibiting closure of a police station. The 

trial court entered judgment on the pleadings against the plaintiffs on 

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5

 There are two exceptions to Rule 311(a)(4). An injunction order is not 

appealable 

when it is entered: 

(i) pursuant to Section 3323(f) or 3505(a) of 

the Divorce Code, 23 Pa. C.S. §§ 3323(f), 

3505(a); or 

(ii) after a trial but before entry of the final 

order. Such order is immediately 

appealable, however, if the order enjoins 

conduct previously permitted or mandated 

or permits or mandates conduct not 

previously mandated or permitted, and is 

effective before entry of the final order. 

Id. Neither exception is relevant here. 
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Counts II and III of the complaint while reserving decision on Count I. The 

Commonwealth Court quashed the plaintiffs’ appeal relating to Counts II and 

III, reasoning: 

[A]ll three Counts of the complaint seek the same 

injunctive relief[,] and so the continued viability of 

Count I preserves a claim for the same injunctive 

relief requested in the dismissed Counts. Hence, we 

cannot conclude that common pleas’ order 

dismissing Counts II and III effects a denial of 

permanent injunctive relief so as to trigger the 

allowance of an interlocutory appeal under Rule 

311(a)(4). 

Id., 840 A.2d at 504. 

 Here, all three counts of the Palutis’ complaint seek the same 

injunctive relief, a decree “prevent[ing] or restrain[ing]” 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. 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 October 15, 2014 order “[does not] effect[] a denial of permanent 

injunctive relief so as to trigger the allowance of an interlocutory appeal 

under Rule 311(a)(4).” McNeilly, 840 A.2d at 504. 

 For these reasons, the October 15, 2014 order is neither a final, 

appealable order under Pa.R.A.P. 341 nor an appealable interlocutory order 

under Pa.R.A.P. 311. Although the parties urge us to exercise jurisdiction 

over this appeal and have obviously devoted considerable time and effort to 
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their briefs, no rule authorizes us at this juncture to decide this appeal on 

the merits. 

 Appeal quashed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2015