Water Polo I, L.P. v. W. Hanover Twp. Sewer Auth.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Polo I, L.P., :
Appellant :
:
v. : No. 360 C.D. 2022
:
West Hanover Township :
Sewer Authority :
Water Polo I, L.P. :
:
v. : No. 392 C.D. 2022
:
West Hanover Township Sewer :
Authority, :
Appellant : Submitted: April 6, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE CEISLER FILED: August 15, 2023
Before this Court are cross-appeals filed by Water Polo I, L.P. (Water Polo)
and West Hanover Township Sewer Authority (Authority) from the March 18, 2022
Judgment entered by the Court of Common Pleas of Dauphin County (Trial Court)
following a non-jury trial.1 The Trial Court entered judgment in Water Polo’s favor
on its claim of improper tapping fees in the amount of $146,364.20 and in the
Authority’s favor on all remaining claims. For the reasons that follow, we affirm in
part and reverse in part the Trial Court’s Judgment.
1
This Court sua sponte consolidated the appeals by Order dated October 28, 2022.
I. Background
A. Factual and Procedural History
The Authority is an independent municipal authority that provides sewer
services, including a conveyance system and treatment facilities, in West Hanover
Township, Dauphin County (Township). Water Polo owns a multi-family apartment
complex in the Township known as The Reserve at Manada Hill (Property), which
is comprised of 200 apartment units and a clubhouse that are connected to the
Authority’s sanitary sewer system. The Property has a single water meter for use in
water billing. Pennsylvania American Water provides water service to the Property.
The Authority has enacted resolutions establishing the billing structure,
tapping fees, and rates for its sewer services. The Authority has two rate
classifications: domestic establishments and non-domestic establishments.
Resolution 2017-A-1 (Authorizing Resolution) provides:
“Domestic Establishment” means any room, group of rooms,
apartment, house trailer, building, or other enclosure connected,
directly or indirectly, to the Sewer System and occupied or intended for
occupancy as separate living quarters by a family or any other group
of Persons living together or by a Person living alone. Each apartment
unit in an apartment facility is considered a Domestic Establishment.
Motels and Hotels are excluded from this definition. In the special case
where multiple separate and detached dwelling units are permitted to
be constructed on the same Reserve, each separate dwelling unit shall
be a separate Domestic Establishment.
“Non-Domestic Establishment” means any room group of rooms,
building or other enclosure connected, directly or indirectly, to the
Sewer System, which does not constitute a Domestic Establishment.
Reproduced Record (R.R.) at 318a-19a (emphasis added). With regard to tapping
fees, the Authorizing Resolution states:
2
The tapping fee amount for a Domestic Establishment shall be
calculated based on the unit tapping fee cost per gallon of capacity and
the gallons per day per [equivalent dwelling unit (EDU)][2] established
in accordance with the requirements of the Municipality Authorities
Act[ (MAA), 53 Pa. C.S. §§ 5601-5623]. No tapping fee amount for a
typical Domestic Establishment shall be less than that determined for
one . . . EDU. Each Domestic Establishment shall pay a tapping fee.
Id. at 326a (emphasis added).3
Resolution 2013-A-2 (Rate Resolution) sets forth the sewer rates for the
Authority’s customers. The Rate Resolution establishes a flat rate for domestic
establishments of $624 per year. Id. at 306a.4 Each apartment unit is considered one
EDU for rate purposes. As a domestic establishment, Water Polo is charged a
monthly flat rate for each of the 201 units (200 apartment units plus the clubhouse)
connected to the Authority’s sewer system.
2
“An [EDU] is a unit of measurement for volume of sewage flow, and typically one EDU
will correspond to one residence.” J. Buchanan Assocs., LLC v. Univ. Area Joint Auth., 231 A.3d
1089, 1091 n.1 (Pa. Cmwlth. 2020).
3
Our Court has explained “tapping fees” as follows:
When a new residential or commercial customer desires (or is required) to connect
to a municipal authority’s sewer system, the municipal authority is authorized,
pursuant to the MAA, to charge a “tapping fee” to recoup its capital costs incurred
in constructing the particular facilities required to provide service to the new
customer. The tapping fee is a one-time charge for access to the sewer system; it
is not to be confused with a user fee, which is a separate ongoing charge for actual
use of the system.
J. Buchanan, 231 A.3d at 1091.
4
At trial, the Authority’s manager, Mark Salisbury, testified that the Authority’s sewer
rental rate for residential customers is “$52 a month, $156 a quarter, $624 a year” and that the rate
has been the same since 2012. Notes of Testimony (N.T.), 9/22/21, at 119, 126.
3
Resolution 2014-A-2 (Tapping Fee Resolution) sets forth the tapping fee rates
for new users that connect to the Authority’s sewer system. For domestic
establishments, the capacity fee is $4,030, the collection fee is $181, and the
customer facilities fee is $175. Id. at 310a. The Tapping Fee Resolution also sets
forth the specific tapping fee calculations for both the capacity and collection
components of the sewer system. Id. at 312a-14a.5 Water Polo paid a tapping fee of
$4,030 for each of its 201 EDUs for the capacity component, and a $175 customer
facilities fee for each of its 10 buildings. Notes of Testimony (N.T.), 9/22/21, at
128-29, 139; Trial Ct. Op., 3/18/22, at 4.6
In April 2012, Water Polo submitted a Sewage Facilities Planning Module
(sewer module) for the Property to the Township for certification, which Water Polo
5
Section 5607(d)(24)(ii) of the MAA provides:
Every authority charging a tapping, customer facilities or connection fee shall do
so only pursuant to a resolution adopted at a public meeting of the authority. The
authority shall have available for public inspection a detailed itemization of all
calculations, clearly showing the maximum fees allowable for each part of the
tapping fee and the manner in which the fees were determined, which shall be made
a part of any resolution imposing such fees. A tapping, customer facilities or
connection fee may be revised and imposed upon those who subsequently connect
to the system, subject to the provisions and limitations of the [MAA].
53 Pa. C.S. § 5607(d)(24)(ii).
6
Mr. Salisbury testified that the tapping fee rates were “$4,031.08 for the capacity
component and $181.52 for the collect component,” but the Authority “did not use the collection
component with [the Property].” N.T., 9/22/21, at 128-29. Mr. Salisbury clarified that the
Authority charged Water Polo a tapping fee of $4,030 per EDU by rounding down from $4,031.08.
Id. at 139. The Trial Court found that Water Polo was charged $4,030 per EDU for the capacity
component, plus “each building in the apartment complex was charged $175 as a Customer
Facilities Fee.” Trial Ct. Op., 3/18/22, at 4. The Trial Court ultimately determined that Water
Polo “was charged approximately $811,955.00 in tapping fees for the entire Property.” Id.
4
revised in April 2013.7 The sewer module identified average collection flows of
35,000 gallons per day and projected peak flows of 140,000 gallons per day. R.R.
at 422a. In October 2013, the Pennsylvania Department of Environmental
Protection (DEP) approved Water Polo’s sewer module “consisting of 200 apartment
units with flows of 35,000 gallons of wastewater per day, to be served by [the
Authority’s] sewage collection, conveyance and treatment system.” Id. at 450a.
On June 15, 2017, Water Polo filed a Complaint against the Authority in the
Trial Court, which it amended on July 31, 2017. In its First Amended Complaint,
Water Polo asserted the following claims against the Authority: improper tapping
fees; improper usage charges in violation of the MAA; unjust enrichment; violation
of procedural due process rights under the United States and Pennsylvania
Constitutions; and violation of equal protection rights under the United States and
Pennsylvania Constitutions and 42 U.S.C. § 1983 (relating to violations of civil
rights).8
Specifically, Water Polo averred that the Authority charged improper tapping
fees for the Property’s initial connection to the sewer system. First Am. Compl. ¶¶
77-78, 87-91. Water Polo averred that the tapping fees were improper, in part,
because they did not “properly reflect actual sewer flows” and did not “accurately
reflect the number of [the Property’s] ‘connections’ to the sewer system.” Id. ¶ 91.
Water Polo also challenged the reasonableness of the Authority’s monthly rates,
averring that the “[s]ewer fees are not billed on usage, despite the use of a meter at
7
Section 5(a.1) of the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L.
(1965) 1535, as amended, 35 P.S. § 750.5(a.1), requires each municipality to certify the amount
of sewer that a proposed land development project will utilize in the sewer system.
8
Section 5607(d)(9) of the MAA vests the court of common pleas with “exclusive
jurisdiction to determine questions involving rates or service.” 53 Pa. C.S. § 5607(d)(9).
5
the [P]roperty” and that “[t]he billing for sewer is the same each month even if units
are not occupied and do not use sewer treatment services.” Id. ¶¶ 18-19. Water Polo
further averred that the Property should be classified as commercial, rather than
residential, because (1) it is more akin to commercial establishments such as hotels
and nursing homes, and (2) it is more equitable to charge Water Polo for the amount
of sewage the Property actually discharges into the system rather than impose a flat
rate. Id. ¶¶ 112, 115, 126.
In its prayer for relief, Water Polo sought to recover, inter alia, “the amount
of overbilling plus interest for overcharges accruing as of the date of this Complaint,
future charges that accrue during litigation with interest[], costs and any additional
monetary amounts that the [Trial] Court may determine.” First Am. Compl. at 25.
Water Polo also requested “that the fee[s] be declared . . . improper and stricken as
violative of the powers granted to [m]unicipal [a]uthorities pursuant to the Due
Process/Equal Protection Clauses of the United States Constitution and [the]
Pennsylvania Constitution.” Id.
On October 2, 2018, the Authority filed its Answer and New Matter, averring,
inter alia, that its rate classification system and the tapping fees and monthly charges
imposed on Water Polo were reasonable and uniform under the MAA.
The Trial Court held a non-jury trial on September 22, 2021. Much of the
evidence at trial involved the Authority’s tapping fees and monthly sewer charges
and how they were calculated. We address the testimony and evidence relevant to
the issues on appeal in Section II of this Opinion.
B. Trial Court’s Verdict and Opinion
On March 18, 2022, following additional briefing and argument by the parties,
the Trial Court entered judgment in Water Polo’s favor on its claim of improper
6
tapping fees in the amount of $146,364.20. The Trial Court entered judgment in the
Authority’s favor on all other claims.
In its accompanying Memorandum Opinion, the Trial Court first explained its
ruling on tapping fees. The Trial Court observed that “the MAA establishes the
guidelines and parameters that a municipal authority must follow when ‘calculating
and recovering the value of its capital costs to provide the parts of the system
required by the new user.’” Trial Ct. Op., 3/18/22, at 3 (quoting J. Buchanan, 231
A.3d at 1102). Specifically, the Trial Court relied on Section 5607(d)(24)(i)(C)(I)
of the MAA, which provides:
A tapping fee shall not exceed an amount based upon some or all of the
following parts which shall be separately set forth in the resolution
adopted by the authority to establish these fees. . . .
(I) Capacity part. The capacity part shall not exceed an amount
that is based upon the cost of capacity-related facilities,
including, but not limited to, source of supply, treatment,
pumping, transmission, trunk, interceptor and outfall mains,
storage, sludge treatment or disposal, interconnection or other
general system facilities . . . . For tapping fees or components
related to facilities initially serving exclusively new customers,
an authority may, no more frequently than annually and without
updating the historical cost of or subtracting the outstanding debt
related to such facilities, increase such tapping fee by an amount
calculated by multiplying the tapping fee by the weighted
average interest rate on the debt related to such facilities
applicable for the period since the fee was initially established or
the last increase of the tapping fee for such facilities. The
capacity part of the tapping fee per unit of design capacity of said
facilities required by the new customer shall not exceed the total
cost of the facilities as described herein divided by the system
design capacity of all such facilities. . . .
7
53 Pa. C.S. § 5607(d)(24)(i)(C)(I) (emphasis added).9 Further, Section
5607(d)(24)(i)(C)(V)(e) of the MAA provides:
[T]he design capacity required by a new residential customer used in
calculating sewer . . . tapping fees shall not exceed an amount
established by multiplying . . . 90 gallons per capita per day for sewer
capacity times the average number of persons per household as
established by the most recent census data provided by the United
States Census Bureau.
Id. § 5607(d)(24)(i)(C)(V)(e) (emphasis added).10
The Trial Court noted that in J. Buchanan, this Court explained that the
MAA’s tapping fee provisions “ensure[] that a new customer ‘does not pay more per
unit than what it cost the municipal authority per unit to provide its capacity and
collection related services.’” Trial Ct. Op., 3/18/22, at 3 (quoting J. Buchanan, 231
A.3d at 1102).
Applying the tapping fee provisions of the MAA to the evidence presented at
trial, the Trial Court found:
[Water Polo] was charged a tapping fee for each of the two hundred
apartments on the Property plus the clubhouse. Specifically, each of
the two hundred apartments and the clubhouse was charged a tapping
fee of $4,030 for the capacity component. Moreover, each building in
the apartment complex was charged $175 as a Customer Facilities Fee.
Each building consists of 20 apartments. Based on these numbers, it
appears that [Water Polo] was charged approximately $811,955.00 in
9
This subsection of Section 5607(d)(24) relating to tapping fees also includes “(II)
Distribution or collection part,” “(III) Special purpose part,” and “(IV) Reimbursement part.”
However, only the capacity part is at issue here.
10
The record shows that the average number of persons per household in the Township, as
of the most recent census, is 2.47 persons; pursuant to Section 5607(d)(24)(i)(C)(V)(e) of the
MAA, 2.47 persons multiplied by 90 gallons equals 222.3, rounded down to 222 gallons per day
of sewer flow per EDU. N.T., 9/22/21, at 106-07, 176.
8
tapping fees for the entire Property, including ten buildings of twenty
apartments each and one building with the clubhouse.
[Water Polo] argues that the definition of an [EDU] within [the
Authority’s] service area equates to 222 gallons per day of sewer usage.
However, based on the sewer module that was submitted to [DEP],
[Water Polo] argues that it should have only paid for 158 tapping fees
based on the module approval of 35,000 gallons per day and the tapping
fee definition of 222 gallons per day. In other words, [Water Polo] was
charged a tapping fee as if [it] would use 49,500 gallons per day, but [it
was] only certified to use 35,000 gallons per day.
Trial Ct. Op., 3/18/22, at 4 (internal citation and footnote omitted).
To calculate the tapping fees that Water Polo should have been charged, the
Trial Court relied on the Authority’s Exhibit 14, which “defines an EDU as using
222 gallons per day based on an average of 2.47 persons per household.” Id. at 4-5.
The Trial Court then explained:
[T]he total maximum tapping fee amount per gallon per day is set forth
as $18.13 for the capacity component and $0.82 for the collection
component. Thus, based on an EDU of 222 gallons per day, the
maximum tapping fee amount that can be charged per EDU is
$4,031.08 for the capacity component and $181.52 for the collection
component.
However, the Property was only certified with a capacity of
35,000 gallons per day. Thus, based on the definition of EDU in [the
Authority’s] own tapping fee calculations, [Water Polo] should have
only been charged for one hundred fifty-eight (158) EDU[]s instead of
two hundred one (201)[ EDUs]. Otherwise, [Water Polo] is paying
more per unit than it cost [the Authority] to provide its capacity and
collection related services, which is prohibited by the MAA.
Taking the maximum amount that can be charged per EDU for
both capacity and collection and multiplying that by the 158[] EDU[]s
that [Water Polo] should have been charged equals $665,590.80.
9
Id. at 5 (emphasis added). Therefore, the Trial Court concluded that Water Polo
“was overcharged in the amount of $146,364.20, and [the Authority] must repay this
amount to [Water Polo].” Id. at 5.
Next, the Trial Court rejected Water Polo’s claim that the Authority was
unjustly enriched by the monthly charges it collected from Water Polo for the
Property. The Trial Court first determined that it was reasonable for the Authority
to classify Water Polo as residential, rather than commercial, “because apartments
are places where people reside in the same way that people reside in single[-]family
homes or townhomes. People don’t generally consider a hotel or a hospital to be
their home or the place where they reside.” Id. at 7-8. The Trial Court then
concluded:
[The Authority] does not base its rates on actual water usage. Rather,
it bases its rates on the annual expenses that are necessary to keep the
sewage system in good condition, including any necessary maintenance
costs, construction costs, and/or repair costs. It is certainly possible
that a majority of residential users are paying more in sewage rates than
they are actually using, including residents of single-family homes.
However, all of the residential users, including the [201] units of
[Water Polo’s] Property, are hooked up to the sewer system and obtain
a benefit from said system. Thus, it is reasonable for all residential
units, including the ones contained in [the] Property, to pay a . . . flat
fee towards the costs associated with maintaining that system.
....
[The Authority] is basing its rates on the amount of annual expenses
that it has to pay to maintain the sewage system that [Water Polo]
clearly benefits from. [The Authority] is permitted to do this under the
MAA. There is no requirement that a municipality base its rates on
actual water or sewer consumption. It is reasonable for [the Authority]
to classify [the] Property as residential units and to charge [Water
Polo] a flat fee per unit. Therefore, we find that [the Authority] has not
been unjustly enriched under the facts of this case.
10
Id. at 8 (emphasis added).
Finally, the Trial Court rejected Water Polo’s constitutional claims, finding
that Water Polo failed to “provide any evidence of any violation of its due process
rights, either substantive or procedural,” nor any “evidence to support a finding that
[its] rights to equal protection were violated.” Id. at 9.
Thereafter, both parties filed Post-Trial Motions. On August 18, 2022,
following oral argument, the Trial Court denied both Post-Trial Motions for the
reasons set forth in its prior Memorandum Opinion. These cross-appeals followed.11
II. Analysis
Water Polo’s appeal challenges the validity and constitutionality of the
monthly sewer charges imposed by the Authority. The Authority’s cross-appeal
challenges only the Trial Court’s ruling that it overcharged Water Polo for tapping
fees.
A. Water Polo’s Appeal
1. Unjust Enrichment
First, Water Polo asserts that the Authority has been unjustly enriched by
overcharging Water Polo for sewer usage on a monthly basis. Water Polo asserts
that despite the 35,000-gallon-per-day sewer capacity approved by DEP, Water Polo
pays monthly charges equating to 49,500 gallons per day. Water Polo contends that
these monthly charges exceed the actual benefit conferred on Water Polo, thereby
unjustly enriching the Authority. We disagree.
11
“This Court’s scope of review of a judgment following a non-jury trial is to determine
whether the findings of the trial court are supported by competent evidence, and whether the [trial]
court committed error in the application of law.” Com. v. Hoffman, 938 A.2d 1157, 1160 n.10 (Pa.
Cmwlth. 2007) (citation omitted). “[T]his Court may not reweigh the evidence [or] substitute [its]
judgment for that of the factfinder.” Id.11
Unjust enrichment is a quasi-contractual doctrine based in equity. See Styer
v. Hugo, 619 A.2d 347, 350 (Pa. Super. 1993). To prove an unjust enrichment claim,
the plaintiff must establish that (1) it conferred benefits on the defendant, (2) the
defendant appreciated those benefits, and (3) the defendant accepted and retained
those benefits “‘under such circumstances that it would be inequitable for [the
defendant] to retain the benefit without payment of value.’” Filippi v. City of Erie,
968 A.2d 239, 242 (Pa. Cmwlth. 2009) (citation omitted) (emphasis added). “In
determining if the doctrine applies, our focus is not on the intention of the parties,
but rather on whether the defendant has been unjustly enriched.” Id. Importantly,
the plaintiff “must show that the party against whom recovery is sought either
‘wrongfully secured or passively received a benefit that it would be unconscionable
for [he or she] to retain.’” Limbach Co., LLC v. City of Phila., 905 A.2d 567, 575
(Pa. Cmwlth. 2006) (citation omitted) (emphasis added).
Recently, in Water Polo III, LP v. Susquehanna Township Authority (Pa.
Cmwlth., No. 1116 C.D. 2021, filed December 1, 2022), this Court considered an
unjust enrichment claim brought by Water Polo III, LP (Water Polo III) against
another municipal sewer authority under substantially similar facts.12 In that case,
Water Polo III owned an apartment complex comprised of 160 rental units and a
clubhouse that were connected to the authority’s sewer system, and the authority
charged Water Polo separately for 161 residential units.
Water Polo III filed an action in the trial court challenging the authority’s rate
structure.13 After a non-jury trial, the trial court found that the authority’s regulations
12
Pursuant to our Court’s Internal Operating Procedures, we may cite unreported panel
decisions of this Court, issued after January 15, 2008, for their persuasive value. 210 Pa. Code §
69.414(a).
12
defined apartments as residential, rather than commercial, units, and the authority
charged residential customers a flat fee. The trial court noted that the authority’s
sewer rates were based on the annual expenses of maintaining the sewage system,
not the quantity of sewer waste generated by each unit. The trial court also found
that all of Water Polo III’s apartment units benefited from being connected to the
authority’s sewer system. Therefore, the trial court concluded that “‘it [was]
reasonable for all residential units, including the ones contained in [Water Polo III’s
p]roperty, to pay a quarterly fee towards the costs associated with maintaining the
system.’” Id., slip op. at 7 (quoting trial court opinion).
On appeal to this Court, Water Polo III argued, inter alia, that the trial court
erred in concluding that the authority was not unjustly enriched by collecting
excessive sewer charges. Like Water Polo in this case, Water Polo III asserted that
the authority’s charges exceeded the actual sewer capacity available to and approved
for the property. In rejecting this claim, this Court concluded:
The trial court determined [that] Water Polo [III] did not prove its
unjust enrichment claim, as Water Polo [III] failed to show [that the
a]uthority accepted and retained its sewer payments under inequitable
circumstances. As outlined above, [the a]uthority’s classification of
Water Polo[ III]’s apartment units as separate residential units is
reasonable and permitted under the MAA. Water Polo[ III]’s water
consumption and the sewage flow estimates [the a]uthority provided to
DEP in sewer planning are not relevant to how [the a]uthority classifies
Water Polo [III] for sewer rates. In addition, the trial court did not
13
The trial judge in Water Polo III was the same trial judge who presided over the instant
proceedings. In fact, at the outset of the trial in this case, the parties’ counsel and the trial judge
discussed the factual and legal similarities between the two cases and acknowledged that the only
substantive difference between them was that, unlike Water Polo III, this case also involved a
claim of improper tapping fees. See N.T., 9/22/21, at 8-10; see also Trial Ct. Op., 3/18/22, at 2
n.2 (noting that Water Polo III “involved very similar facts to the instant matter” and, for that
reason, the Trial Court “adopt[ed] and incorporate[d] the majority of that decision” into its March
18, 2022 opinion in this case).
13
accept Water Polo[ III]’s assertion that [the a]uthority limited its sewer
capacity. As a result, we conclude the trial court’s findings are
supported by competent evidence, and the trial court did not commit
legal error in determining Water Polo [III] failed to prove its unjust
enrichment claim.
Water Polo III, slip op. at 14 (emphasis added).
Water Polo’s unjust enrichment claim in this case is indistinguishable from
the unjust enrichment claim at issue in Water Polo III. Therefore, for the reasons
set forth in Water Polo III, which we find persuasive, we conclude that Water Polo
failed to prove that the Authority was unjustly enriched.
2. Reasonableness of Monthly Charges
Echoing the arguments in support of it unjust enrichment claim, Water Polo
next asserts that the monthly charges imposed by the Authority are unreasonable
because they are not based on actual usage and exceed the sewer flow capacity
certified in the sewer module. Specifically, Water Polo argues:
[T]he evidence is clear that Water Polo does not actually use the amount
of gallons that equates to an EDU at any time. The evidence is also
clear that, based upon the [sewer] module certification, the amount
readily available for use is only 35,000 gallons per day. Despite those
limitations, [the Authority] charges Water Polo for amounts not
available based upon the limited module certification.
Water Polo Br. at 21. Thus, Water Polo contends that the Authority’s monthly
charges are neither reasonable nor uniform as required by the MAA.
Section 5607(d)(9) of the MAA provides that a municipal authority has the
power
to fix, alter, charge and collect rates and other charges in the area served
by its facilities at reasonable and uniform rates to be determined
exclusively by it for the purpose of providing for the payment of the
14
expenses of the authority, the construction, improvement, repair,
maintenance and operation of its facilities and properties. . . .
53 Pa. C.S. § 5607(d)(9) (emphasis added). This Court has recognized that “[t]he
MAA provides municipal authorities with significant discretion to impose fees and
charges[] . . . for the construction and maintenance of its facilities.” J. Buchanan,
231 A.3d at 1104 (emphasis added). However, an authority’s rates must be
“reasonably proportional to the value of the service rendered.” W. Clinton Cnty.
Mun. Auth. v. Rosamilia, 826 A.2d 52, 57 (Pa. Cmwlth. 2003). With regard to
reasonableness, “[i]t is the burden of the party challenging a rate structure to prove
that there has been a manifest and flagrant abuse of discretion or an arbitrary
establishment of the rate system.” Ack v. Carroll Twp. Auth., 661 A.2d 514, 517
(Pa. Cmwlth. 1995).
This Court has held that “sewage rates need not be proportioned with
exactness to the use made or the cost to the individual customer, so long as it is
reasonably related to the cost of maintaining the service for all the customers, and
the customers challenging the rates receive ‘some’ benefit from the system.” Ack,
661 A.2d at 518 (emphasis added); see also Wash. Realty Co., Inc. v. Municipality
of Bethel Park, 937 A.2d 1146, 1150 (Pa. Cmwlth. 2007) (in upholding the
reasonableness of a municipal authority’s sewer charges, this Court observed that
“the mere fact that a parcel of property is connected to a sewage system provides
value to the premises” and “that connection must be maintained whether or not it is
used”).
In Water Polo III, this Court upheld as reasonable the same flat-rate billing
structure imposed by a municipal sewer authority on an apartment complex like the
Property at issue here. We began our analysis in Water Polo III by recognizing that
“[o]ur Court has previously upheld rate structures that are similar to [the a]uthority’s
15
rate structure.” Water Polo III, slip op. at 9 (citing Chicora Commons Ltd. P’ship,
LLP v. Chicora Borough Sewer Auth., 922 A.2d 986 (Pa. Cmwlth. 2007)). We noted
that in Chicora, a sewer authority charged an apartment complex for sewer services
at a residential flat rate for each of its 27 units. Id. The apartment complex in
Chicora argued that the flat-rate billing system did not bear “‘a reasonable
relationship to the services actually consumed because it paid for services at a rate
at least three times greater than the amount actually consumed.’” Id. (citation
omitted). The Chicora Court ultimately upheld the flat-rate system as reasonable
under the MAA. Id., slip op. at 9-10. Applying Chicora’s reasoning to the facts of
Water Polo III, this Court held:
We discern no significant distinctions between [the a]uthority’s rate
structure in this matter and [the authority’s] rate structure in Chicora.
The trial court’s finding that Water Polo [III] obtains a benefit from
[the a]uthority’s sewage system was supported by competent evidence
in this matter. The trial court’s finding that [the a]uthority’s rates are
tied to the annual expenses of maintaining the sewage system was also
supported by competent evidence. Thus, like in Chicora, [the
a]uthority’s rate structure is “not arbitrary or unreasonably related to
the value of services rendered either as actually consumed, or readily
available for use.” Accordingly, we conclude the trial court did not
commit an error of law when it determined [the a]uthority’s rate
structure does not violate the MAA.
Id., slip op. at 10 (internal citation omitted).
Similarly, the Trial Court in this case found, based on the credible evidence
of record, that the Authority “bases its rates on the annual expenses that are necessary
to keep the sewage system in good condition, including any necessary maintenance
costs, construction costs, and/or repair costs.” Trial Ct. Op., 3/18/22, at 8; see N.T.,
9/22/21, at 127-28 (the Authority’s manager testified that the monthly sewer rates
pay for “the [Authority’s] debt service,” “operation and maintenance of the
16
facilities,” “salaries and insurances[,] and all other costs involved with running the
pump stations, treatment system, and the removal of biosolids”). The Trial Court
further determined:
The rates set forth are established by [the Authority’s] Board of
Directors based on the yearly budget. The budget incorporates all
expenses incurred by [the Authority], including maintenance of the
system, operating costs, administrative costs, and any debt services that
[the Authority] has. [Water Polo] has not presented any evidence that
any of the items on this budget are unreasonable or overly inflated. The
sewer rates that are established for Domestic Establishments and Non-
Domestic Establishments are not tied into the number of gallons of
sewer waste that is generated by a home or apartment on a daily basis.
Rather, [they are] tied to the annual expenses of maintaining the
sewage system.
Trial Ct. Op., 3/18/22, at 7 (emphasis added). Thus, consistent with this Court’s
decisions in Water Polo III and Chicora, we conclude that the monthly charges the
Authority imposed on Water Polo were reasonable.
We further conclude that the Authority’s monthly rates are uniform, because
the record shows that all residential customers, including Water Polo, are charged
the same flat rate. See R.R. at 306a; N.T., 9/22/21, at 56; see also Chicora, 922 A.2d
at 995 (upholding the authority’s imposition of flat-rate billing on an apartment
complex where “‘[a]ll apartments are treated uniformly[,] and each is billed as one
[EDU],’” and noting that “‘[f]lat[-]rate structures are permitted under Pennsylvania
law’”) (citation omitted); Glen Riddle Park, Inc. v. Middletown Twp., 314 A.2d 524,
527 (Pa. Cmwlth. 1974) (“[A] municipality may create classifications of users so
long as the charge is uniform within the classification and is reasonably
proportional to the service rendered.”) (emphasis added).
17
Here, the record establishes, and the Trial Court found, that the Authority’s
rate system is reasonably intended to allocate the costs of sewer service among its
residential users, while ensuring that sufficient funds are collected to cover the actual
costs the Authority pays to maintain its sewage system. See Trial Ct. Op., 3/18/22,
at 7-8. Therefore, we conclude that the monthly sewer charges the Authority
imposed on Water Polo were both reasonable and uniform under the MAA.
3. Procedural Due Process
Next, Water Polo asserts that its procedural due process rights were violated
by the Authority’s failure to provide a formal process at the administrative level for
customers to challenge its rates.14 Water Polo argues:
[T]he issue is not whether [the Authority’s] procedures are adequate,
but rather whether any procedure[] even exists or a process exists in
rate procedures or regulations to appeal rates or to raise concerns
regarding billing. Merely having monthly public meetings is not
enough of a process to satisfy the standard required for an orderly
process with meaningful review and opportunity to be heard in the
context of a challenge to sewer rates.
Water Polo Br. at 24-25 (emphasis added).
“The due process standards of the United States and Pennsylvania
Constitutions are essentially the same.” J.P., 170 A.3d 580. “[T]he basic elements
of procedural due process are adequate notice, the opportunity to be heard, and the
chance to defend oneself before a fair and impartial tribunal having jurisdiction over
the case.” Com. v. Turner, 80 A.3d 754, 764 (Pa. 2013). Procedural due process is
14
The Due Process Clause of the Fourteenth Amendment of the United States Constitution
provides that “no State shall deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. “The Pennsylvania Supreme Court has held that the
guarantee of due process of law in Pennsylvania jurisprudence emanates from Article I, Sections
1, 9, and 11 of the Pennsylvania Constitution.” J.P. v. Dep’t of Hum. Servs., 170 A.3d 575, 580
(Pa. Cmwlth. 2017).
18
a flexible concept that “imposes only such procedural safeguards as the situation
warrants.” In re McGlynn, 974 A.2d 525, 531 (Pa. Cmwlth. 2009).
Despite the Authority’s lack of a specific administrative process to challenge
its rates, Section 5607(d)(9) of the MAA provides:
Any person questioning the reasonableness or uniformity of a rate fixed
by an authority or the adequacy, safety and reasonableness of the
authority’s services, including extensions thereof, may bring suit
against the authority in the court of common pleas of the county where
the project is located or, if the project is located in more than one
county, in the court of common pleas of the county where the principal
office of the project is located.
53 Pa. C.S. § 5607(d)(9) (emphasis added). Section 5607(d)(9) also vests the courts
of common pleas with “exclusive jurisdiction to determine questions involving rates
or service.” Id.
Here, in accordance with Section 5607(d)(9) of the MAA, Water Polo filed
the present action in the Trial Court challenging its rate classification and the
reasonableness of the Authority’s rates. Notably, in Water Polo III, this Court found
no procedural due process violation under the same facts, because “not only does the
MAA provide [the a]uthority’s customers with the full panoply of procedural rights
in the court of common pleas (for which Water Polo [III] has availed itself in this
matter), it also provides [the a]uthority’s customers with the ability to seek pre-
enforcement review.” Water Polo III, slip op. at 16. Therefore, because Water Polo
availed itself of the statutorily guaranteed procedure for challenging the Authority’s
rates, we conclude that Water Polo’s procedural due process claim lacks merit.15
15
In any event, the record shows that, prior to filing the present action, Water Polo
challenged the Authority’s rates on several occasions before the Authority’s board of directors.
See R.R. at 303a (in an April 20, 2012 letter, the Authority’s chairman informed Water Polo that,
19
4. Substantive Due Process
Water Polo also asserts that the Authority’s rate structure violates Water
Polo’s substantive due process rights. Water Polo asserts:
The right set forth is not the right to obtain sewer service, but the
property right of not facing abusive and unregulated utility fees without
input or process. Moreover, such right as asserted is a right to be free
from improper treatment by a government entity once they have
established an exclusive property right through providing a service –
only to then gouge users when there is no regulation of that service.
Water Polo is not claiming that it has a right for a governmental
entity to provide sewer to its [P]roperty. Rather, it is claiming that once
a government steps into a role as a utility provider, then a right has been
established.
Water Polo Br. at 26 (emphasis added).
“The substantive protections of due process are meant to protect citizens from
arbitrary and irrational actions of the government.” Gresock v. City of Pittsburgh
Civ. Serv. Comm’n, 698 A.2d 163, 169 (Pa. Cmwlth. 1997). Like procedural due
process, “for substantive due process rights to attach[,] there must first be the
deprivation of a[n] . . . interest that is constitutionally protected.” Khan v. State Bd.
of Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004).
Here, aside from citing a single federal case that is factually distinguishable,16
Water Polo fails to develop its substantive due process claim in any meaningful way
during its regular meeting, the board had denied Water Polo’s request for reduced tapping fees);
N.T., 9/22/21, at 50, 57-58, 133-34 (the Authority’s manager testified that Water Polo
representatives had attended Authority board meetings and had asked the board to reduce its
tapping fees and to bill Water Polo on a metered, rather than a flat rate, basis).
16
Water Polo cites only Johnson v. City of Saginaw, Michigan, 980 F.3d 497 (6th Cir.
2020), for the proposition that “the courts have found [that] sewer and water is essential.” Water
20
with citation to relevant legal authority in its appellate brief. Therefore, we conclude
that Water Polo has waived this claim. See Com. v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop an issue in any other meaningful
fashion capable of review, that claim is waived.”); Pa.R.A.P. 2119(a) (stating that
each point in an argument must be “followed by such discussion and citation of
authorities as are deemed pertinent”).
5. Equal Protection
Finally, Water Polo asserts that its equal protection rights have been violated
by the Authority’s classification of the Property as residential rather than
commercial for rate purposes.17 Specifically, Water Polo argues that the Authority’s
“rate structure . . . clearly treats apartments and hotels differently based upon the
arbitrary distinction of length of stay . . . with no rational basis for doing so.” Water
Polo Br. at 29-30. Water Polo contends that this distinction “is inappropriate given
Polo Br. at 25. In Johnson, the plaintiff alleged that city officials violated her procedural and
substantive due process rights by shutting off the water supply to her commercial business without
notice. In ruling on the plaintiff’s substantive due process claim, the federal appeals court
recognized that her “expectation of utility services” rose to the level of a protected property interest
under the federal Due Process Clause. In this case, however, there is no allegation or evidence
that Water Polo was ever deprived of sewer service so as to trigger a substantive due process claim.
As explained above, Water Polo cites no legal authority to support its contention that a substantive
due process claim can be premised on an allegation of excessive sewer charges absent a deprivation
of service.
17
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides no State shall “deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. Article I, Section 26 of the Pennsylvania Constitution
provides “[n]either the Commonwealth nor any political subdivision thereof shall deny to any
person the enjoyment of any civil right, nor discriminate against any person in the exercise of any
civil right.” Pa. Const. art. I, § 26.
21
that [the Property’s] facilities are more closely comparable to hotels than single-
family residential properties.” Id. at 28.
In Water Polo III, this Court rejected the same equal protection claim that
Water Polo asserts here. We concluded:
Water Polo [III] asserts it should be treated as a commercial user
because apartment units are more like some commercial uses (hotels)
than other residential uses (single-family homes and townhomes).
Thus, Water Polo [III] is not challenging the classification system itself,
but the line between the two classifications.
As our Supreme Court outlined in Lohr [v. Saratoga Partners,
L.P., 238 A.3d 1198, 1211 (Pa. 2020) (citation omitted)], however,
“‘[a] classification does not fail rational[ ]basis review because it is not
made with mathematical nicety or because in practice it results in some
inequality.’” We agree with the trial court that apartments, like homes
and townhomes, are places one considers as their permanent residence,
whereas hotels and motels are not. The trial court did not commit an
error of law when it concluded that Water Polo [III] did not present
evidence to show this distinction was unreasonable or arbitrary.
Although Water Polo [III] presented evidence regarding its water
consumption, Water Polo [III] did not present any evidence regarding
water consumption for the uses it alleges are similar to its use (hotels
and motels). The presence of similar amenities (which is also true for
apartments, townhomes, and some single-family residences) is not the
same as similar sewer usage. As a result, Water Polo [III] did not
establish that it is similar, in terms of sewer usage, to a hotel or motel.
Thus, despite some perceived inequality and a lack of mathematical
nicety, [the a]uthority’s classifications do not fail rational basis review,
and the trial court did not commit an error of law in determining [the
a]uthority’s rate classifications do not violate Water Polo[ III]’s equal
protection rights.
Water Polo III, slip op. at 13 (internal citation omitted) (emphasis added).
Here, as in Water Polo III, Water Polo failed to establish that the Property is
similar, in terms of sewer usage, to a commercial establishment such as a hotel or
22
motel. While Water Polo offered some testimony regarding the similarity between
motels and apartments in terms of their physical attributes and amenities, see N.T.,
9/22/21, at 45, 47-48, it offered no evidence establishing their similarity in terms of
sewer usage. See Trial Ct. Op., 3/18/22, at 9 (finding no evidence of an equal
protection violation). Thus, for the reasons outlined in Water Polo III, we conclude
that Water Polo failed to prove an equal protection violation based on its
classification as a domestic establishment.
B. The Authority’s Appeal
In its cross-appeal, the Authority challenges the Trial Court’s conclusion that
Water Polo was overcharged for tapping fees. In particular, the Authority contends
that the Trial Court misapplied this Court’s holding in J. Buchanan when it re-
calculated Water Polo’s tapping fees based on the projected 35,000-gallon-per-day
capacity in the sewer module, as such a calculation is unsupported by either the
MAA or our case law. We agree.
Section 5607(d)(24)(i)(C) of the MAA authorizes the Authority to collect
tapping fees from “owners who desire to or are required to connect to the authority’s
sewer or water system.” 53 Pa. C.S. § 5607(d)(24)(i)(C). As stated earlier, the MAA
“provides municipal authorities with significant discretion to impose fees and
charges, including tapping fees, for the construction and maintenance of its
facilities.” J. Buchanan, 231 A.3d at 1104 (emphasis added). The party challenging
the tapping fees imposed has the burden “to show that the municipal authority
abused its discretion or that the rate system or charge established is arbitrary or
unreasonable.” Id.
We begin our analysis of this issue with a review of J. Buchanan, this Court’s
most recent pronouncement on the calculation of sewer tapping fees, albeit in the
23
context of a non-residential customer. In J. Buchanan, the owner of an office
building, J. Buchanan Associates, LLC (Buchanan), filed an action against a
municipal sewer authority, alleging that the authority overcharged it for the tapping
fee to connect the building to the sewer system. The basis of Buchanan’s complaint
was as follows:
The [a]uthority charged Buchanan a $32,977 tapping fee, which was
the equivalent of seven times the tapping fee for a single residential
dwelling, measured in [EDUs]. That is, the [a]uthority used a
residential unit, i.e., an EDU, as the standard unit for measuring units
of discharge, and converted Buchanan[]’s estimated sewage flow into
EDUs. Buchanan disagreed with the amount of the tapping fee, but
paid it under protest and connected to the system.
Id. at 1091 (footnote omitted). Following the disposition of preliminary objections,
which resulted in the dismissal of the complaint, Buchanan appealed to this Court.
On appeal to this Court, Buchanan argued, inter alia, that the trial court erred
in concluding that the authority may charge tapping fees by assigning EDUs, arguing
instead that the authority should calculate tapping fees on the basis of anticipated or
actual flow rates. Id. at 1097, 1099. Buchanan further argued that under the MAA,
a tapping fee must be limited to its proportionate gallon-per-day flow requirements,
or its “design capacity.” Id. at 1100 (citing 53 Pa. C.S. § 5607(d)(24)(i)(C)(I)).
This Court disagreed with Buchanan’s arguments. In interpreting and
applying the tapping fee provisions of the MAA, this Court held:
[W]e conclude that the [a]uthority charged Buchanan a tapping fee in
a manner consistent with [S]ection 5607(d)(24) of the MAA, 53 Pa.[
]C.S. § 5607(d)(24). For one, [S]ection 5607(d)(24) of the MAA, as
amended by Act 57,[18] does not address how municipal authorities
18
“In December 2003, the MAA was amended by the Act of December 30, 2003, P.L. 404,
No. 57 (Act 57).” J. Buchanan, 231 A.3d at 1093.
24
must, at the end of the day, charge an owner of a nonresidential property
a tapping fee after calculating the Capacity and Collection parts. It also
does not, contrary to Buchanan’s contention, require the authority to
make individualized assessments of the expected use of each customer.
Instead, the tapping fee provisions of the MAA at 53 Pa.[ ]C.S. §
5607(d)(24)(i)(C) establish the guidelines and parameters a municipal
authority must follow when calculating and recovering the value of its
capital costs of providing the parts of the system required by the new
user. The tapping fee provisions of the MAA ensure a new customer
does not pay more per unit than what it cost the municipal authority
per unit to provide its capacity and collection related services. In other
words, the Capacity and Collection parts of the new customer’s tapping
fee per unit cannot be more than what it has cost the authority per unit
to provide these services required by the new customer. [See] 53 Pa.[
]C.S. § 5607(d)(24)(i)(C)(I) (“The capacity part of the tapping fee per
unit of design capacity of said facilities required by the new customer
shall not exceed the total cost of the facilities as described herein
divided by the system design capacity of all such facilities.”) (emphasis
added). 53 Pa.[ ]C.S. § 5607(d)(24)(i)(C)(II) (“The distribution or
collection part of the tapping fee per unit of design capacity of said
facilities required by the new customer shall not exceed the cost of the
facilities divided by the design capacity.”) (emphasis added). The
language of the MAA is crystal clear. We do not agree with Buchanan
that these provisions reflect a mandatory pro rata limitation that
requires a user to pay for collection facilities only to the extent of its
esoteric design capacity requirements in such facilities.
Id. at 1101-02 (footnote omitted) (bold and underlining in original; italics added).
The Court went on to state, however, that a new customer’s design capacity is not
irrelevant, as it is used to calculate both the capacity and collection components of
the tapping fee. Id. at 1102; see 53 Pa. C.S. § 5607(d)(24)(i)(C)(VII).
In this case, the record shows that the Authority calculated its tapping fee rate
in the same manner as the authority in J. Buchanan. See J. Buchanan, 231 A.3d at
1094-95. The Authority determined the MAA’s maximum allowable design
capacity for a residential connection by multiplying 90 gallons per day by the
25
average number of persons per household in the Township, which is 2.47 (90 x 2.47
= 222.3, rounded down to 222). It then multiplied the Authority’s cost per unit of
design capacity for its capacity facilities ($18.13 per gallon per day) by the
maximum allowable design capacity for a residential connection (222 gallons) to
determine the capacity part of the tapping fee ($4,031.60, rounded down to $4,030).
In accordance with its Tapping Fee Resolution, the Authority then applied the
tapping fee of $4,030 per EDU, i.e., per domestic establishment, to the Property
($4,030 x 201 EDUs).
Before this Court, Water Polo acknowledges that “[t]he Authority followed
necessary procedure to establish its tapping fees and make available to the public its
methodology for calculating such fees.” Water Polo Cross-Appeal Br. at 6. Yet
Water Polo asserts, and the Trial Court found, that it should have paid only 158
tapping fees, rather than 201 tapping fees, based on the sewer module certification
of 35,000 gallons of sewer flow per day. Id. at 7; Trial Ct. Op., 3/18/22, at 4-5. In
other words, Water Polo contends that the certification of projected flow in a sewer
planning module dictates the number of EDUs used to calculate tapping fees.
However, Water Polo cites no legal authority to support this contention.19
Indeed, in Chicora, this Court rejected a similar claim by the owner of an
apartment building that had challenged, among other things, the calculation of its
tapping fees as unreasonable and arbitrary. We concluded:
19
The cases that Water Polo cites in response to the Authority’s cross-appeal, McGrath
Construction, Inc. v. Upper Saucon Township Board of Supervisors, 952 A.2d 718 (Pa. Cmwlth.
2008), and Maxatawny Township v. Department of Environmental Protection (Pa. Cmwlth., No.
2369 C.D. 2014, filed October 16, 2015), are inapposite. Neither case involved the calculation of
tapping fees, nor did they address how the certification of projected flows in a sewer planning
module impacts tapping fees.
26
[The building owner] argues that it was overcharged for sewage service
because it was charged for twenty-seven EDUs per year when it only
consumed between four and ten EDUs worth. The [building owner]
ignores that the [a]uthority set forth in the June 10, 1998, Rate
Resolution that an EDU with respect to a residential customer was
defined as any room, group or rooms or enclosure, occupied or
intended for occupancy as separate living quarters for a family or other
group of persons living together or by persons living alone. Each
apartment unit meets the definition of an EDU. It is highly unlikely, if
not impossible, that all of the residential units that would be assigned
one EDU would consume an equivalent amount of water. For instance,
a person living alone would not consume as much as a family of six.
However, once again, the key is not the amount of the service used but
rather the value of the service.
Chicora, 922 A.2d at 994 (emphasis added).
In adopting Water Polo’s novel position regarding tapping fees, the Trial
Court reduced the number of EDUs assigned to the Property because it found that
Water Polo was “paying more per unit than it cost [the Authority] to provide its
capacity and collection related services, which is prohibited by the MAA.” Trial Ct.
Op., 3/18/22, at 5 (citing J. Buchanan, 231 A.3d at 1102) (emphasis added).
However, nothing in J. Buchanan authorizes an authority to reduce the number of
EDUs assigned to a residential customer based on projected flows in a sewer
planning module. As explained above, the Authority assessed its costs, debt, system
design capacity, and the customer’s statutorily defined design capacity to determine
the capacity part of its tapping fee, which is $4,030 per EDU. See J. Buchanan, 231
A.3d at 1103 (“When determining the [c]apacity part of the tapping fee, a municipal
authority’s cost per unit is multiplied by the new customer’s ‘required number of
units of design capacity.’”) (citation omitted). As the Authority points out, “the
tapping fee calculation itself is what prevents an authority from charging
[residential] customers more per unit (i.e.[,] per EDU) than the authority’s cost per
27
unit/EDU to provide the service.” Authority Br. at 18; see J. Buchanan, 231 A.3d
at 1103. This Court has consistently upheld this method of calculating tapping fees
as reasonable under the MAA. See, e.g., J. Buchanan, 231 A.3d at 1102 (“We do
not agree with Buchanan that [Section 5607(d)(24)(i)(C)(VII) of the MAA] prohibits
a municipal authority from charging a commercial customer’s tapping fee on an
EDU basis.”); Chicora, 922 A.2d at 994-95 (upholding a sewer authority’s EDU
classification system for determining tapping fees and rates); Curson v. W.
Conshohocken Mun. Auth., 611 A.2d 775 (Pa. Cmwlth. 1992) (rejecting a
landowner’s challenge to an EDU-based connection fee on the ground that the fee
was not related to the actual cost of connection).20
Water Polo also asserts that the Authority’s tapping fees were arbitrary and
unreasonable because they were “well above and beyond Water Polo’s actual
usage.” Water Polo Cross-Appeal Br. at 6-7. However, contrary to this assertion,
20
At trial, Water Polo’s engineering expert, Frederick Ebert, acknowledged that it is lawful
for an authority to charge one EDU per dwelling unit, as follows:
Q. . . . We had a lot of testimony today about these computations for sewer rental
fees or tapping fees. You’ve reviewed the system that’s used in [the Township].
Isn’t it perfectly permissible to charge one EDU per dwelling unit?
A. Yes, it is.
Q. It’s lawful?
A. It’s lawful.
Q. It complies with the [MAA]?
A. Yes.
N.T., 9/22/21, at 100; see also J. Buchanan, 231 A.3d at 1091 n.1 (noting that “typically one EDU
will correspond to one residence”) (emphasis added).
28
our case law holds that an authority’s tapping or connection fee need not be based
on actual consumption to be deemed reasonable. See J. Buchanan, 231 A.3d at
1101-02 (stating that Section 5607(d)(24) of the MAA “does not[] . . . require the
authority to make individualized assessments of the expected use of each customer”)
(emphasis added); Life Servs., Inc. v. Chalfont-New Britain Twp. Joint Sewage Auth.,
528 A.2d 1038, 1041 (Pa. Cmwlth. 1987) (holding that a one-time contribution fee
was reasonably related to the value of service rendered and observing that an
authority need not establish its connection fee solely upon services actually
consumed to be deemed reasonable). As this Court has recognized, the units of
capacity required by a new customer must take into account “the value of the service
rendered either as actually consumed or as readily available for use.” J. Buchanan,
231 A.3d at 1105 (emphasis added); see also Smith v. Athens Twp. Auth., 685 A.2d
651, 657-58 (Pa. Cmwlth. 1996) (“There is nothing in the [MAA’s predecessor
statute] which prevents the [a]uthority from imposing a tap-in fee as a means of
financing construction of the entire sewer system. . . . This [C]ourt has held that such
a fee is an appropriate method for securing financing for the project.”).
Furthermore, the evidence at trial established that the projected flow in a
sewer module is irrelevant to the calculation of tapping fees. The sewer module
submitted to DEP certifies that an authority has the capacity to treat the expected
sewage from a proposed land development project. Mr. Salisbury, the Authority’s
manager, testified that the sewer module is intended “for planning purposes” and
agreed that the module has “nothing to do with” the Authority’s calculation of
tapping fees. N.T., 9/22/21, at 69-70, 75. Michael Kreiser, the Authority’s
chairman, also testified that the planning module submitted to DEP has nothing to
do with the computation of tapping fees; rather, the gallons-per-day amount certified
29
in the module is “what you’re basing the flows on for capacity issues.” Id. at 156-
57; cf. Water Polo III, slip op. at 14 (“Water Polo[ III]’s water consumption and the
sewage flow estimates [the a]uthority provided to DEP in sewer planning are not
relevant to how [the a]uthority classifies Water Polo [III] for sewer rates.”)
(emphasis added). Mr. Kreiser also testified that the Authority’s residential tapping
fee, as set forth in the Tapping Fee Resolution, is applied uniformly to all residential
customers. N.T., 9/22/21, at 158; see R.R. at 310a.
Based on our review of the record and relevant law, we conclude that the Trial
Court erred in deviating from the methodology set forth in the Authority’s Tapping
Fee Resolution by re-calculating Water Polo’s tapping fees based on 158 EDUs,
rather than 201 EDUs.21 The Authority in this case applied the same methodology
to determine its tapping fee rate as the authority in J. Buchanan, and our case law
confirms that charging a tapping fee on a per-EDU basis, rather than on actual usage,
is lawful under the MAA. We further conclude that Water Polo failed to prove that
the Authority abused its discretion in imposing tapping fees or that its tapping fees
were arbitrary or unreasonable under the MAA. See J. Buchanan, 231 A.3d at 1104.
III. Conclusion
In sum, we conclude that: (1) the Trial Court erred in concluding that the
Authority overcharged Water Polo for tapping fees in the amount of $146,364.20;
(2) the Authority’s monthly sewer charges imposed on Water Polo were reasonable
and uniform under the MAA; and (3) Water Polo failed to establish that its
constitutional rights were violated. Accordingly, we reverse the Trial Court’s entry
21
Notably, while Water Polo’s sewer module identified “project flows” of 35,000 gallons
per day, the module also stated that the Property encompassed “200 EDU[]s.” R.R. at 422a.
30
of judgment in Water Polo’s favor as to tapping fees and affirm its entry of judgment
in the Authority’s favor as to all remaining claims.
____________________________
ELLEN CEISLER, Judge
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Polo I, L.P., :
Appellant :
:
v. : No. 360 C.D. 2022
:
West Hanover Township :
Sewer Authority :
Water Polo I, L.P. :
:
v. : No. 392 C.D. 2022
:
West Hanover Township Sewer :
Authority, :
Appellant :
ORDER
AND NOW, this 15th day of August, 2023, the Judgment of the Court of
Common Pleas of Dauphin County (Trial Court), entered March 18, 2022, is hereby
AFFIRMED IN PART AND REVERSED IN PART. This Court hereby
REVERSES the entry of judgment in favor of Water Polo I, L.P., as to tapping fees,
and AFFIRMS the entry of judgment in favor of West Hanover Township Sewer
Authority as to all remaining claims.
____________________________
ELLEN CEISLER, Judge