NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-3278 ____________

ANDERSON EXCAVATING LLC, Appellant

v.

WEISS WORLD LP; MONONGALIA COUNTY COAL CO ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2:22-cv-00512) District Judge: Honorable William S. Stickman, IV ____________

Submitted Under Third Circuit L.A.R. 34.1(a) on October 24, 2023

Before: KRAUSE, FREEMAN, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: December 8, 2023)

_______________

OPINION* _______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FREEMAN, Circuit Judge.

Seeking to access its mineral rights estate beneath a parcel of land, Monongalia

County Coal Company hired Anderson Excavating LLC to perform preparatory

construction. When Monongalia failed to pay for those services, Anderson Excavating

filed suit in state court to enforce a mechanic’s lien against both Monongalia and the

owner of the surface estate, Weiss World LP. After the case was removed to federal

court, the District Court dismissed the action. Discerning no error in the District Court’s

analysis, we will affirm.

I.

This appeal concerns a 99.6-acre plot of land in Greene County, Pennsylvania. In

1911, the subsurface mineral rights were severed from the surface estate and transferred

to Monongalia’s predecessor in interest. The Weiss family purchased the surface estate

in 1971 and later conveyed it to Weiss World LP. The deed of transfer expressly stated

that it did not convey any interest in the subsurface mineral rights.1

In 2015, Monongalia (which then owned the mineral rights estate) hired Anderson

Excavating to provide construction work necessary to access the subsurface minerals

beneath the parcel. Weiss World initially refused to allow Monongalia to use any portion

of the surface estate for the operation, but after litigation it entered into an easement

1 Pennsylvania law “recognizes three separate estates in land which can be held in fee simple separate and distinct from each other: the surface estate, the mineral rights estate[,] and the support estate.” Captline v. County of Allegheny,

, 692 n.1 (Pa. Commw. Ct. 1995).

2 agreement allowing Monongalia to use 2.7 acres of the surface property to build a storage

area and sediment pond in connection with the planned mining operation. The agreement

did not permit Monongalia to use or travel on any other part of the Weiss World property.

Although the easement agreement required Monongalia to use a public road to

reach the site, the Pennsylvania Department of Environmental Protection later denied the

company’s request to do so. Monongalia then moved for an injunction permitting it to

construct its own access road in contravention of the easement agreement. Over stiff

opposition from Weiss World, a state court granted Monongalia’s motion.

Anderson Excavating completed all contracted construction in September 2019.

But Monongalia did not pay Anderson Excavating for $392,788.70 of work, and then

Monongalia filed for bankruptcy. Anderson Excavating subsequently filed a mechanic’s

lien against both the surface and subsurface estates in the Pennsylvania Court of

Common Pleas. Because it could not obtain payment from Monongalia due to the

bankruptcy proceedings, Anderson Excavating sued Weiss World to enforce the lien.2

Weiss World removed the action to the United States District Court for the

Western District of Pennsylvania3 and moved to dismiss the action under Rule 12(b)(6).

The District Court granted the motion, concluding that Anderson Excavating could not

2 Anderson Excavating also named Monongalia as a defendant, but it acknowledged in the complaint that it was not pursuing its claim against Monongalia because of the ongoing bankruptcy proceedings. 3 Weiss World is a Pennsylvania citizen, meaning that removal was improper under

(b)(2). But Anderson Excavating did not contest Weiss World’s removal, and § 1441(b)(2) is not jurisdictional. See Kor. Exch. Bank, N.Y. Branch v. Trackwise Sales Corp.,

(3d Cir. 1995).

3 enforce a mechanic’s lien against Weiss World’s estate for two reasons: (1) Weiss

World’s surface estate was distinct from Monongalia’s subsurface estate, and

(2) Anderson Excavating was neither a contractor nor a subcontractor to Weiss World

within the meaning of the Pennsylvania Mechanics’ Lien Law, 49 Pa. Stat. Ann.

§§ 1101–1902 (West). So it dismissed the claim against Weiss World with prejudice.

And because Anderson Excavating did not plead any claims against Monongalia, it

terminated Monongalia as a defendant.

Anderson Excavating timely appealed, challenging the District Court’s conclusion

that the mechanic’s lien was unenforceable against Weiss World’s surface estate.

II.

We have jurisdiction over “appeals from all final decisions of the district courts of

the United States” pursuant to

. We exercise de novo review of orders

granting motions to dismiss. Doe v. Univ. of Scis.,

(3d Cir. 2020).

“When assessing the merits of a Rule 12(b)(6) motion, we accept as true all factual

allegations in the complaint,”

but we reject “unsupported conclusions,” “unwarranted

inferences,” and legal conclusions couched as factual allegations, Baraka v. McGreevey,

(3d Cir. 2007) (citations omitted).

4 III.

The Pennsylvania Mechanics’ Lien Law of 1963 sets out the conditions under

which parties may place a lien on property. Generally speaking,

every improvement and the estate or title of the owner in the property shall be subject to a lien . . . for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement[.]

49 Pa. Stat. Ann. § 1301(a). The statute specifies that “[n]o lien shall be allowed in favor

of any person other than a contractor or subcontractor,” as defined by the statute. Id.

§ 1303(a); Murray v. Zemon,

(Pa. 1960) (“The right to file a

mechanics’ lien must have a contract as its basis.”).

A “contractor” is anyone who, “by contract with the owner, express or implied,

erects, constructs, alters[,] or repairs an improvement or any part thereof or furnishes

labor . . . or supplies” in aid of such a project. 49 Pa. Stat. Ann. § 1201(4). Similarly, a

“subcontractor” is anyone who, “by contract with the contractor, or pursuant to a contract

with a subcontractor in direct privity of a contract with a contractor, express or implied,”

provides any of the same labor or materials to such a project. Id. § 1204(5).

Anderson Excavating does not claim it was a contractor to Weiss World. Instead,

it argues that its relationship with Monongalia made it Weiss World’s subcontractor, thus

entitling it to place a lien on Weiss World’s surface estate. We disagree.

Monongalia’s easement agreement with Weiss World did not turn Anderson

Excavating into Weiss World’s subcontractor. The easement, by its express terms, gave

5 Monongalia a limited right to use a small portion of the surface estate for its own

subsurface access. The agreement’s sole purpose was to enable Monongalia to expand its

mining operations and recover minerals. It did not direct Monongalia to construct or

repair any improvements for the benefit of Weiss World, and Weiss World never paid or

promised to pay Monongalia for any services.

Anderson Excavating is correct that the construction it did on behalf of

Monongalia took place on the surface property. But the Pennsylvania Supreme Court has

made clear that “[t]he right to the lien arises not from the act of furnishing the labor and

materials, but rather from the debt arising therefrom.” Murray,

. Here,

the debt underlying the attempted lien arose solely from Anderson Excavating’s contract

with Monongalia—not from any express or implied contract with Weiss World.

Each alleged improvement furnished by Anderson Excavating was to benefit

Monongalia’s subsurface estate. The easement even required Monongalia to restore the

surface estate to its original condition after the conclusion of mining operations. Weiss

World did not seek or intend to use any of Anderson Excavating’s improvements. As a

result, Anderson Excavating cannot show that the limited 2017 easement between

Monongalia and Weiss World was a contract for the “improvements” that Weiss World

vehemently opposed and never benefited from.4

4 Even though Anderson Excavating was a Monongalia contractor, the District Court correctly concluded that the 2017 easement did not provide Monongalia with a shared, lienable interest in the surface estate. Under Pennsylvania law, the owner of a subsurface estate has an implied right to use the surface property to the extent necessary for mining

6 Anderson Excavating thus has no ability to enforce a lien against Weiss World.

See 49 Pa. Stat. Ann. § 1303(a).

IV.

For the foregoing reasons, we will affirm the District Court’s dismissal of the suit.

purposes. Oberly v. H. C. Frick Coke Co.,

(Pa. 1918). But that implied right does not convey any ownership interest in the surface estate. See Chartiers Block Coal Co. v. Mellon,

, 598–99 (Pa. 1893); see also Captline,

n.1 (explaining that the surface and subsurface estates may “be held in fee simple separate and distinct from each other”).

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