East Dunkard Water Authority v. SWPA Water Authority ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
East Dunkard Water Authority, :
Appellant :
:
v. : No. 116 C.D. 2020
: Argued: October 13, 2020
Southwestern Pennsylvania :
Water Authority :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: November 16, 2020
Before this Court is the appeal of the East Dunkard Water Authority
(EDWA) from the order (Order) of the Greene County Court of Common Pleas
(Trial Court), dated January 16, 2020, sustaining one of the preliminary objections
(Preliminary Objections) filed by the Southwestern Pennsylvania Water Authority
(SPWA) and dismissing EDWA’s Complaint for Declaratory Judgment and
Equitable Relief (Complaint).
I. Background
On May 28, 2019, EDWA filed a Complaint seeking to enjoin SPWA
from “1) continuing an expansion project; 2) running pipelines parallel to and/or
close in proximity to [EDWA’s] pipelines within [EDWA’s] service territory; 3)
providing water to Hatfield’s Ferry power station; 4) providing water to an
anticipated industrial park; and 5) providing water to any of [EDWA’s] existing
customers or anyone in its territory.” EDWA’s Br. at 19; Reproduced Record (R.R.)
at 10.1 On June 26, 2019, SPWA filed Preliminary Objections. R.R. at 42. On July
15, 2019, EDWA filed a Response to SPWA’s Preliminary Objections. R.R. at 55.
After oral argument, the Trial Court, by Order dated January 16, 2020, granted
SPWA’s third Preliminary Objection and dismissed the Complaint.
SPWA’s third Preliminary Objection was titled “Failure to State a
Claim.” The Trial Court’s explanation of SPWA’s objection and EDWA’s
opposition to it, as well as the Trial Court’s determination, are captured in the
narrative from the Trial Court’s Order below.
[SPWA] avers that if [EDWA], “claims it somehow obtained the
distribution system of the East Dunkard Water Association
[Association], a Public Utility pursuant to 66 Pa.C.S. §102[2] . .
.[,] [EDWA] has failed to allege in the Complaint any such
allegation to sustain [its] claims and have further failed to attach
deeds therewith showing such a transfer.” See [R.R. at 42-49].
[SPWA] further avers that if “[EDWA] believes it obtained the
distribution system by contract and/or by deed from the
Association; it would only be a valid contract if approved by the
1
Pa.R.A.P. 2173 states, in pertinent part, as follows:
[e]xcept as provided in Rule 2174 (tables of contents and citations), the
pages of briefs, the reproduced record and any supplemental reproduced
record shall be numbered separately in Arabic figures and not in Roman
numerals: thus 1, 2, 3, etc., followed in the reproduced record by a small a,
thus 1a, 2a, 3a, etc., and followed in any supplemental reproduced record
by a small b, thus 1b, 2b, 3b, etc.
We note that the reproduced record and supplemental reproduced record, herein, do not
follow the rule as stated above.
2
Public Utility Code, 66 Pa.C.S. §§101-3316.
2
[Public Utility Commission] (PUC). No such approval has been
attached to the Complaint or even alleged in the Complaint.” Id.
[SPWA] seeks a dismissal of the Complaint.
[EDWA] avers in its response that the Association is not, by
definition, a public utility as it is a cooperative association which
furnishes services only to its stockholders or members on a
nonprofit basis and that the Municipality Authorities Act3 does
not require PUC approval. [EDWA] seeks dismissal of
[SPWA’s] [third] Preliminary Objection.
[EDWA] avers that it maintains and operates the water
distribution system throughout Dunkard and Greene Townships,
and parts of Monongahela, Cumberland, Perry, and Whitely
Townships, [EDWA] further avers that the Association is a
cooperative association which furnishes services only to its
stockholders or members on a nonprofit basis, and 66 [Pa. C.S.]
§102 specifically excludes such an association from the
definition of a Public Utility. However, no such averments are
made of [EDWA]. Accordingly, given [EDWA’s] status as an
authority and its maintenance and operation of the water
distribution system owned by a third party, the Association, PUC
approval is required of the contract and/or deed from the
Association.
AND NOW THEREFORE, [SPWA’s] [third] Preliminary
Objection titled FAILURE TO STATE A CLAIM is
GRANTED.
R.R. at 114-16 (capitalization in original).
EDWA now appeals to this Court.4
3
53 Pa.C.S. §§5601-5623.
4
This Court’s scope of review on appeal from a trial court’s order granting preliminary
objections and dismissing a complaint is limited to determining whether the trial court committed
legal error or abused its discretion. Bell v. Township of Spring Brook, 30 A.3d 554 (Pa. Cmwlth.
2011).
(Footnote continued on next page…)
3
II. Arguments
A. EDWA’s Argument
At the outset, EDWA asserts that the Municipality Authorities Act
(Act) prohibits municipal authorities from duplicating services or competing with
existing enterprises. The Act states, in pertinent part:
The purpose and intent of this chapter being to benefit the people
of the Commonwealth by, among other things, increasing their
commerce, health, safety and prosperity and not to unnecessarily
burden or interfere with existing business by the establishment
of competitive enterprises; none of the powers granted by this
chapter shall be exercised in the construction, financing,
improvement, maintenance, extension or operation of any
project or projects or providing financing for insurance
reserves which in whole or in part shall duplicate or compete
with existing enterprises serving substantially the same
purposes.
53 Pa.C.S. §5607(b)(2) (emphasis added).
[O]ur standard of review of an order of the trial court overruling or
[sustaining] preliminary objections is to determine whether the trial court
committed an error of law. When considering the appropriateness of a ruling
on preliminary objections, the appellate court must apply the same standard
as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency
of the complaint. When considering preliminary objections, all material
facts set forth in the challenged pleadings are admitted as true, as well as all
inferences reasonably deducible therefrom. Preliminary objections which
seek the dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If any doubt exists as
to whether a demurrer should be sustained, it should be resolved in favor of
overruling the preliminary objections.
P.J.A. v. H.C.N., 156 A.3d 284, 287 (Pa. Super. 2017).
4
EDWA maintains that it is a duly authorized authority. It services
Dunkard and Greene Townships and parts of Monongahela, Cumberland, Perry, and
Whiteley Townships. EDWA’s Br. at 22; R.R. at 4. EDWA contends that SPWA
is also an authority and that its proposed new facilities will be duplicative of existing
facilities operated by EDWA. Thus, EDWA asserts it is entitled to the protections
of the Act. 53 Pa.C.S. §5607(b)(2); R.R. at 4-8; see also Dominion Prods. & Servs.,
Inc. v. Pittsburgh Water & Sewer Auth., 44 A.3d 697 (Pa. Cmwlth. 2011) (overruling
preliminary objections where a municipal authority’s proposed project would
compete with existing enterprises).
EDWA states that SPWA, in its second Preliminary Objection,
described EDWA’s predecessor, the Association, as a private, non-profit corporation
and made the legal conclusion that it is a public utility pursuant to 66 Pa.C.S. §102.5
R.R. at 45. EDWA asserts that this assertion, in turn, formed the basis of SPWA’s
third Preliminary Objection, which EDWA characterizes as follows: “that if
[EDWA] obtained the water distribution system by contract, such a contract would
5
66 Pa.C.S. §102 defines a “public utility,” in pertinent part, as follows:
(1) Any person or corporations now or hereafter owning or
operating in this Commonwealth equipment or facilities for:
****
(ii) Diverting, developing, pumping, impounding, distributing, or
furnishing water to or for the public for compensation.
****
(2) The term does not include:
****
(ii) Any bona fide cooperative association which furnishes service
only to its stockholders or members on a nonprofit basis.
5
not be valid since it was not approved by the PUC, and therefore [EDWA] is not
afforded the protections of the Act because it is not the owner of the system . . . .”
EDWA’s Br. at 23; R.R. at 47.
However, EDWA argues that “this Court has unequivocally set forth
that ownership is not a requirement for the Act to apply.” EDWA’s Br. at 23.
Quoting Bristol Township Water Authority v. Lower Bucks County Joint Municipal
Authority, 567 A.2d 1110, 1112 (Pa. Cmwlth. 1989), EDWA argues that this Court has
concluded that “‘nothing in the Act requires that the authority own the water lines in
order for the Act to apply . . . . Clearly, the Act applies to authorities which maintain
and operate water distribution systems as well as those authorities which own their
own waterworks.’” EDWA’s Br. at 24. In Bristol Township Water Authority, this
Court specifically determined that “Lower Bucks has maintained and operated the
water distribution system in the disputed area since 1961. This is sufficient to render
the Act applicable.” 567 A.2d at 1112. EDWA argues that, “[i]n this case, [it] has
pled that it already services some of the areas in which [SPWA] intends to expand
(R.R. [at] 4-8) . . . thus the Act should protect [EDWA] from competition where it
is already providing services with existing facilities regardless of ownership of the
lines.” EDWA’s Br. at 24.
Quoting Lower Bucks County Joint Municipal Authority v. Bristol
Township Water Authority, 586 A.2d 512, 515-516 (Pa. Cmwlth. 1991), EDWA
asserts that this Court determined that “ownership of a water system is not in and of
itself dispositive of the right to furnish water. And where, as here, water was actually
6
being supplied by an entity in compliance with its enabling legislation that separate
right to furnish will be protected by the Act.” EDWA’s Br. at 25.
EDWA states that “[n]otwithstanding that ownership is not a
prerequisite to the protection of the Act, the Trial Court granted [SPWA’s] [third]
Preliminary Objection on the basis that any contract between [EDWA] and the
Association requires PUC approval because ‘no such averments are made that
[EDWA]’ is excluded from the definition of a public utility.” EDWA’s Br. at 25;
R.R. at 115. EDWA argues, however, that
this constitutes two errors of law: first, because ownership is not
required for the Act to apply, whether any contract for ownership
of the water system is enforceable is not relevant; and second,
the Public Utility Code does not require PUC approval of a
contract between a public utility (like [EDWA]) and a
cooperative association (like the Association).
EDWA’s Br. at 25-26.
EDWA states that the Trial Court recognized that the Association is a
cooperative association. Thus, EDWA argues that the Association is not subject to
the PUC’s jurisdiction. “[B]ecause [it] only furnished services to its stockholders or
members on a nonprofit basis[,] it is not a [p]ublic [u]tility.” EDWA’s Br. at 26
(citing R.R. at 115 and 66 Pa.C.S. §102). EDWA adds that Section 507 of the Public
Utility Code, 66 Pa.C.S. §507, sets forth when a contract must be approved by the
PUC, and states, in pertinent part, as follows: “[e]xcept for a contract between a
public utility and a municipal corporation to furnish service at the regularly filed and
published tariff rates, no contract or agreement between any public utility and any
7
municipal corporation shall be valid unless filed with the commission at least 30
days prior to its effective date . . . .” EDWA’s Br. at 26. Further, EDWA notes that
“[a] ‘municipal corporation’ is defined in the [Public Utility Code] as ‘[a]ll cities,
boroughs, towns, townships, or counties of this Commonwealth, and also any public
corporation, authority, or body whatsoever created or organized under any law of
this Commonwealth for the purpose of rendering any service similar to that of a
public utility.’” EDWA’s Br. at 26 (quoting 66 Pa.C.S. §102).
Relying on Philadelphia Association of Wholesale Opticians v.
Pennsylvania Public Utility Commission, 30 A.2d 712, 717 (Pa. Super. 1943) (“A[n]
association that operates on behalf of its members exclusively is [a] cooperative.”)
and Mellon v. Morea Citizens Water Company (Pa.P.U.C., No. C-902997, filed May
20, 1991), 1991 WL 476351 (the PUC has no jurisdiction over a bona fide
cooperative association), EDWA contends that “[s]ince the Association is neither a
public utility nor a municipal corporation[,] Section 507 [of the Public Utility Code]
does not require a contract between it and [EDWA] be approved by the PUC.”
EDWA’s Br. at 26-27. Additionally, EDWA argues that, “[e]ven if a contract
between [it] and the Association did require approval, it would not matter if it was
unenforceable because ownership is not a requirement for protection under the Act.”
EDWA’s Br. at 27.
Based on the preceding argument, EDWA asserts that SPWA’s third
Preliminary Objection should have been overruled, and that its Complaint should be
reinstated for trial on the merits. Id.8
B. SPWA’s Argument
SPWA provides the following useful historical background relative to
the matter before us:
On or about April 7, 1969, the [Trial Court] . . . approved . . . the
formation of a private, non-stock corporation called the
[Association] (see [Supplemental Record (S.R.) at] la[-5a]) to
construct, maintain and operate a private water system for the
supplying of water for domestic, livestock, garden, industrial and
commercial purposes from the extraction of water from the
Monongahela River for the association members on a non-profit
basis (see S[.]R[.] [at] 3a). The Association was a corporate,
private entity, an association . . . not [a] municipal authority.
Over [time], the Association began to expand its pipeline
distribution system beyond Dunkard Township, Greene County,
and into small geographical portions of Monongahela Township,
Greene County, and . . . into Cumberland Township, Greene
County. Notably, the Association purchased the Bobtown
Distribution System (including all real estate and equipment
contained therein) from the Shannopin Water Company (a public
utility) in November 1969 (See R[.]R[.] [at] 76).
SPWA’s Br. at 1.
SPWA argues that the Association fits the description of a public utility
pursuant to 66 Pa.C.S. §102, because it was involved in “[d]iverting, developing,
pumping, impounding, distributing, or furnishing water to or for the public for
compensation.” SPWA’s Br. at 1-2.
SPWA asserts that, in December 2010, “Dunkard Township created
[EDWA] and enabled it to operate in Dunkard Township (see S.R. at 22a) and ‘the
area adjacent thereto and any other property which can be incorporated into said area
for the purposes hereinafter set forth.’” SPWA’s Br. at 2 (citing S.R. at 23a, ⁋7).
Further, some, although not all, of the property and facilities for the water
9
distribution system owned by the Association were transferred to the Authority.
SPWA’s Br. at 2 (citing R.R. at 50, 80, 85, and 90).
SPWA states that EDWA pays rent to the Association and that EDWA
is now the billing entity for the Association’s former customers. SPWA’s Br. at 3.
SPWA asserts that none of the deeds in EDWA’s reproduced record reflect any
conveyance of the water pipes and other water delivery components from the
Association to EDWA in Monongahela Township and that none contain any
reference to PUC approval of the transactions between the Association and EDWA,
which is required for any contract or conveyance between a municipal authority and
a public utility in order to be valid. Id. SPWA further asserts that “[t]he only
municipal authority that was enabled to operate in Monongahela Township, Greene
County, on June 5, 2019, was the Dunkard Valley Joint Municipal Authority
(DVJMA) that was created in conjunction with Monongahela Township and the
Borough of Greensboro (R.R. at 25, 39), which is the authority acquired by SPWA.
SPWA’s Br. at 4 (citing R.R. at 4). Further, SPWA contends that it was invited to
provide water to the residents of Monongahela Township by that township’s
supervisors on or about April 15, 2019, as a precursor to the acquisition of DVJMA
(R.R. at 24). SPWA’s Br. at 4. SPWA argues that “[EDWA] has never been invited
by Monongahela Township to provide water to any resident of said township as
Monongahela Township was never ‘desiring service’ from EDWA or its lessor, the
Association.” Id.
SPWA states that EDWA
references its “enabling legislation,” passed by the Dunkard
Township supervisors, as [a] guarantor of exclusive access to
10
Monongahela Township and its citizens. [However,] [t]here is
no “enabling legislation” of record, nor is there any filed in the
Greene County Courthouse with the approved Dunkard
Township ordinances. The Articles of Incorporation included in
the Supplemental Record do not involve Monongahela Township
as one of the municipalities that created [EDWA] even though it
is the very township that [EDWA] seeks to exclude [SPWA]
from selling water within. [EDWA’s] Articles of Incorporation
define the service area as Dunkard Township and “other areas
desiring service.”
SPWA’s Br. at 7.
SPWA argues that “the supervisors of Dunkard Township do not have
the ability to create a municipal authority and grant it binding and ‘exclusive’ access
to areas outside of their jurisdiction. There is no special grant of authority to one
municipality to create an authority binding another municipality.” SPWA’s Br. at 7
(citing 53 Pa.C.S. §5603).
Prior to Dunkard Township creating its municipal authority,
[EDWA], all that existed in Dunkard Township was a privately
incorporated, nonprofit association created by various individuals,
the . . . Association. It is the private contracts between the
Association and its customers in Dunkard, Greene, Monongahela,
Perry, Whitely and Cumberland Townships (see R[.]R[.] [at] 4;
S[.]R[.] [at] 18a) that were in some manner leased or assigned to
[EDWA] and that [EDWA] wishes to use to assert . . . exclusivity
in a municipality (Monongahela Township) that previously never
invited the [EDWA] to enter said township or borough. This
original association, named the East Dunkard Water Association,
i.e., the Association, leased its pipes and delivery system to
[EDWA]. From this lease agreement . . . [EDWA] is claiming the
creation of “a(n exclusive) service area.”
SPWA’s Br. at 8-9 (citing S.R. at 18a).
11
Referencing 53 Pa.C.S. §5613(b)(1),6 SPWA contends that, “as a
municipal authority obtaining water works facilities, EDWA had a duty to notify the
non-enabling municipalities of its acquisition of water systems.” SPWA’s Br. at 9.
Noting that a public utility and a municipal authority are distinct types of
entities, SPWA asserts that EDWA, itself, acknowledges it is a public utility even while
seeking protection under the Act. SPWA’s Br. at 9 (citing EDWA’s Br. at 25-26).
Further, SPWA asserts that there is no proof of the enabling municipality, i.e., Dunkard
Township, approving the transfers from the Association to EDWA as required by 53
Pa.C.S. §5613(b)(1), or that Monongahela Township received notice of EDWA’s
acquisition of access to the Association’s water distribution system. SPWA’s Br. at 10.
SPWA acknowledges that a municipal authority has a right to exclusivity
within its enabling jurisdiction and such other areas which it is legitimately operating
under its service area designation or by invitation. SPWA explains that in Beaver Falls
Municipal Authority v. Municipal Authority of Borough of Conway, 689 A.2d 379 (Pa.
Cmwlth. 1997), the Beaver Falls authority was providing water to the Borough of
Conway which sought to enter a new contract with another water authority to provide
its water. However, in that case, this Court “made it clear that contracts outside the
6
53 Pa.C.S. §5613(b)(1) states, in pertinent part:
An authority may not acquire by any device or means, including a
consolidation, merger, purchase or lease . . . title to or possession or use of
all or a substantial portion of any existing facilities constituting a project as
defined under this chapter if the project is subject to the jurisdiction of the
[PUC] without first reporting to and advising the municipality which
created or which are members of the authority of the agreement to acquire,
including all its terms and conditions.
12
service area for which the Beaver Falls Authority was created . . . were not guaranteed
by the exclusivity provisions of 53 Pa.C.S. §5607(d)(9) but rather were subject to 53
Pa.C.S. §5607(d)(19),” which does not grant exclusive rights. SPWA’s Br. at 11. In
Beaver Falls Municipal Authority, we determined that the Ambridge Authority could
supply water to the Borough of Conway under a new contract, and Beaver Falls could
not block it. Id. SPWA asserts that, similarly, in the present matter, EDWA’s provision
of water to the Association’s waterlines and distribution system does not give EDWA
exclusivity outside of Dunkard Township. SPWA’s Br. at 11. SPWA contends that
the Trial Court “correctly pointed out that [EDWA] was acting as a public utility in its
operation of a third-party water system outside of its enabling municipality.” SPWA’s
Br. at 12-13 (citing R.R. at 115-16).
Further, SPWA argues that the Association is a private company that had
been engaged in the distribution of water beyond just its members and shareholders,
bringing it within the definition of a public utility, and PUC approval is required for
any transfer of property or a contract to which a public utility is a party. SPWA’s Br.
at 13 (citing 66 Pa.C.S. §102). SPWA argues that “a contract with a third party,
particularly a public utility corporation[,] is not covered by the protections of the [Act].
In this case, the contracts selling or leasing any property from the Association to the
[EDWA] are unenforceable as they lack PUC approval and therefore are illegal.”
SPWA’s Br. at 14.
SPWA maintains that EDWA’s “entire action is premised upon the fact
that it leases an Association’s facilities in a township, that never invited either entity to
provide water, and is now the township which is the location for SPWA’s planned
13
expansion . . . by (1) invitation from Monongahela Township; and (2) acquisition of
[DVJMA].” SPWA’s Br. at 15. Further, “it was illegal for [EDWA] to begin to operate
. . . any plant, equipment, or other facilities for the rendering or furnishing to the public
of any public utility service beyond its corporate limits,” and EDWA has “never alleged
that it possesses a certificate of public convenience or that [the Association] possesses
one.” SPWA’s Br. at 16 (citing 66 Pa.C.S. §1102(a)(5)). SPWA asserts that EDWA
entered Monongahela Township illegally and, thus, cannot attempt to keep out other
lawfully operating municipal authorities without first seeking and receiving PUC
approval. SPWA’s Br. at 16-17.
III. Discussion
Upon review, we first address the status of the EDWA and of the
Association and the Trial Court’s determination that any contract between the two
entities required PUC approval.
There is no question that EDWA is a municipal corporation as defined in
66 Pa.C.S. §102. However, the section of the Public Utility Code that creates the
requirement of PUC contract approval in the present matter is Section 507, which
requires approval when there is a contract between a municipal corporation and a
“public utility.” See 66 Pa.C.S. §102 and §507. Although the Association does, or did,
provide services that meet the definition of a public utility, per 66 Pa.C.S. §102, i.e.,
“diverting, developing, pumping, impounding, distributing, or furnishing water to or
for the public for compensation,” the Association also meets the definition of an
exception to same, as it was never established by the Trial Court that the Association
was not a “bona fide cooperative association which furnishes service only to its
14
stockholders or members on a nonprofit basis.” 66 Pa.C.S. §102. While the Association
has expanded over the years, at no point did the Trial Court reject the notion that the
Association is still just that, i.e., an “association,” per the definition in 66 Pa.C.S. §102,
and, thus, exempt from the requirement of PUC contract approval in the present matter.
The Trial Court asserts that “given [EDWA’s] status as an authority and its maintenance
and operation of the water distribution system owned by a third party, the Association,
PUC approval is required of the contract and/or deed from the Association.” R.R. 115-
16. However, the plain language of Sections 102 and 507 of the Public Utility Code
exempts a bona fide association from the definition of public utility, and there is no
requirement for a municipal corporation to seek approval for a contract between it and
an association.7 Nonetheless, we concur with the Trial Court that SPWA’s third
Preliminary Objection was properly sustained, albeit for a different reason.8
While we diverge from the Trial Court’s reasoning, we agree that EDWA
failed to obtain the requisite PUC approval. The more persuasive argument in support
of SPWA’s position, and, hence, the Trial Court’s determination sustaining SPWA’s
third Preliminary Objection and dismissing EDWA’s Complaint, is that EDWA needed
PUC approval to operate outside the bounds of Dunkard Township.
7
We note, here, that we agree with EDWA’s argument that the “ownership” of the water
system is not required for EDWA to have exclusivity protections under the Act. However, this
issue is not dispositive to the outcome in the current matter.
8
See Borden v. Baldwin, 281 A.2d 892 (Pa. 1971) (appellate court may sustain preliminary
objections but for different reasons than the lower court).
15
Although we recognize that, in and of itself, a municipal corporation is
not included in the definition of public utility in the Public Utility Code,9 once a
municipal corporation wishes to provide utility services beyond its boundaries, it is
treated as a public utility, subject to the jurisdiction of the PUC. Section 1102(a)(5) of
the Public Utility Code, 66 Pa.C.S. §1102(a)(5), states, in pertinent part:
[u]pon the application of any public utility and the approval of
such application by the commission, evidenced by its certificate
of public convenience first had and obtained, and upon compliance
with existing laws, it shall be lawful: . . . . (5) [f]or any municipal
corporation to acquire, construct, or begin to operate, any plant,
equipment, or other facilities for the rendering or furnishing to the
public of any public utility service beyond its corporate limits.
(Emphasis added.)
In addition, Section 1501 of the Public Utility Code, 66 Pa.C.S. §1501, states, in
pertinent part: “[a]ny public utility service being furnished or rendered by a
municipal corporation beyond its corporate limits shall be subject to regulation
and control by the commission as to service and extensions, with the same force and
in like manner as if such service were rendered by a public utility.” (Emphasis
added).
As this Court noted in Borough of Ridgway v. Pennsylvania Public Utility
Commission, 480 A.2d 1253 (Pa. Cmwlth. 1984), a case in which a municipality was
9
See In re Condemnation of Springboro Area Water Auth., 898 A.2d 6 (Pa. Cmwlth. 2006),
in which this Court stated: “we conclude that the [a]uthority is not a person because it is not an
individual, partnership, or association other than a corporation. Further, the [a]uthority is not a
corporation because the [Public Utility] Code specifically excludes ‘municipal corporations,’ a
term that encompasses municipal authorities, from the definition of ‘corporation.’ Thus, utilizing
the [Public Utility] Code's definition of public utility, we conclude that the [a]uthority is not a
public utility.” Id., 898 A.2d at 11.
16
providing sewer service to the public beyond the municipality’s boundaries: “the
answer to the question of whether the [b]orough is subject to the jurisdiction of the PUC
in this matter, inasmuch as it is controlled by the conclusion that the [b]orough is a
direct provider of extraterritorial sewer service to the public, must be yes. Such being
the case, a certificate of public convenience is necessary.” Further in In re Acquisition
of Water System in White Oak Borough, 93 A.2d 437, 439 (Pa. 1953), our Supreme
Court stated: “[t]he City of McKeesport in operating a water distribution system
beyond its corporate limits is subject, as we have seen, to the jurisdiction of the
[PUC] and consequently this [a]uthority cannot acquire by any device or means
whatsoever all or any part of the City’s water [d]istribution system without first
obtaining the approval of the [PUC].” (Emphasis added.) The same is true in the matter
sub judice. EDWA, as a creature of Dunkard Township, cannot circumvent PUC
approval by simply assuming the Association’s private water distribution system and
providing water service beyond Dunkard Township, where it has not demonstrated a
right to do so via a certificate of public convenience.10
IV. Conclusion
Although we reach our result for a different reason, we affirm the Trial
Court’s order sustaining the SPWA’s third Preliminary Objection and dismissing the
Complaint filed by EDWA. Where the Trial Court sustained SPWA’s third Preliminary
Objection for failure to state a claim because EDWA and the Association did not seek
10
During oral argument before this Court on October 13, 2020, the attorney for EDWA
acknowledged that EDWA does not have a certificate of public convenience from the PUC, when
he stated that EDWA is currently in the process of attempting to obtain one.
17
PUC approval of the contract between them and/or approval of the deed from the
Association, we instead sustain SPWA’s third Preliminary Objection due to EDWA’s
failure to produce evidence of the PUC’s approval of its provision of public utility
services beyond the boundaries of Dunkard Township.
______________________________
J. ANDREW CROMPTON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
East Dunkard Water Authority, :
Appellant :
:
v. : No. 116 C.D. 2020
:
Southwestern Pennsylvania :
Water Authority :
ORDER
AND NOW, this 16th day of November 2020, the Order of the Greene
County Court of Common Pleas sustaining the third Preliminary Objection of the
Southwestern Pennsylvania Water Authority and dismissing the Complaint filed by
the East Dunkard Water Authority is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge