Sullivan v. Bucks County
| Decision Date | 11 October 1985 |
| Citation | 92 Pa.Cmwlth. 213,499 A.2d 678 |
| Parties | Daniel J. SULLIVAN et al. v. COUNTY OF BUCKS and Neshaminy Water Resources Authority. Appeal of NESHAMINY WATER RESOURCES AUTHORITY. NORTH WALES WATER AUTHORITY and North Penn Water Authority v. NESHAMINY WATER RESOURCES AUTHORITY and County of Bucks and County of Montgomery and Philadelphia Electric Company. Appeal of NESHAMINY WATER RESOURCES AUTHORITY. Daniel J. SULLIVAN and Philadelphia Electric Company, North Penn Water Authority, and North Wales Water Authority v. COUNTY OF BUCKS and Neshaminy Water Resources Authority. Appeal of COUNTY OF BUCKS. NORTH WALES WATER AUTHORITY and North Penn Water Authority v. NESHAMINY WATER RESOURCES AUTHORITY and County of Bucks and County of Montgomery and Philadelphia Electric Company. Appeal of COUNTY OF BUCKS. Daniel J. SULLIVAN et al. v. COUNTY OF BUCKS et al. Appeal of Daniel J. SULLIVAN. 710 C.D. 1985 |
| Court | Pennsylvania Commonwealth Court |
James M. McNamara, County Sol., Doylestown, Richard M. Rosenbleeth, William E. Taylor, III, Glenn S. Gitomer, Robert J. Sugarman, Sugarman & Denworth, Fred T. Magaziner, John Flaherty, Philadelphia, for Bucks County and Daniel J. Sullivan.
Andrew G. Gay, Bernard Chanin, Philadelphia, for Daniel J. Sullivan.
Gordon W. Gerber, Dechert, Price & Rhoads, Fred T. Magaziner, Philadelphia, for Neshaminy Water Resources Authority.
Bernard Chanin, Howard Gittis, Jeffrey Saltz, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Robert W. Valimont, Power, Bowen & Valimont, Doylestown, for Philadelphia Elec. Co.
Jeremiah J. Cardamone, Ann Thornburg Weiss, Timoney, Knox, Hasson & Weand, Ambler, Joseph Goldberg, Margolis, Edelstein, Scherles, Sarowitz & Kraemer, Philadelphia, for North Wales Water Authority and North Penn Water Authority.
Frederick M. Wentz, Montgomery County Sol., Norristown, for Montgomery County.
Before CRUMLISH, Jr., President Judge, and ROGERS, CRAIG, MacPHAIL, DOYLE, BARRY and GARDNER COLINS, JJ.
For our consideration and resolution herein are litigious challenges to the construction of facilities to supply water for cooling a nuclear generating station in Limerick, Montgomery County, Pennsylvania This construction has inspired widespread public discussion and disagreement. Notwithstanding that vocal, philosophical and/or political dichotomy, we are obliged and intend to confine our consideration to the merits of the legal issues presented below.
and meeting the citizens' requirements of Bucks and Montgomery Counties.
Bucks County and the Neshaminy Water Resources Authority (NWRA) appeal a Bucks County Common Pleas Court order denying their exceptions to its adjudication and decree nisi which entered a verdict against them and in favor of the Philadelphia Electric Company (PECO) and the North Penn (NP) and North Wales (NW) Water Authorities.
Daniel J. Sullivan, a taxpayer, appeals a Bucks County Common Pleas Court order granting the preliminary objections of Bucks County and NWRA and dismissing his third amended complaint.
The purpose of the Point Pleasant water diversion project is to construct a system by which Delaware River water could be withdrawn by the Point Pleasant Pumping Station and pumped through a combined transmission main to the Bradshaw Reservoir and Pump House (Bradshaw) where (1) water for public use by Bucks and Montgomery Counties would flow through the north branch transmission main and along the Neshaminy Creek to the north branch water treatment plant where it would be pumped, in part, to NP and NW and (2) supplemental cooling water for PECO's Limerick nuclear generating station would be pumped through the east branch transmission main and flow along the Perkiomen Creek to the Perkiomen Pump House where it would be withdrawn and pumped to Limerick. Supplemental cooling water is necessary because PECO is prohibited from using Schuylkill River water for several months each year.
PECO and NWRA entered into a Construction and Operation Agreement by which NWRA agreed to construct and maintain the Point Pleasant Pumping Station and combined transmission main, PECO assumed responsibility for constructing Bradshaw (where it agreed to store and release water to flow through the north branch transmission main, at no cost to NWRA) and NWRA assumed sole responsibility for the north branch transmission main. The agreement provides that the project's ultimate capacity is to be 95 million gallons per day (mgd), 49 mgd for NWRA and 46 mgd for PECO. To the extent necessary to insure operation and maintenance of the Point Pleasant Pumping Station and combined transmission main, this agreement provides for assignment by NWRA to Bucks County. The agreement was executed by the required majority of the Bucks County Commissioners.
NWRA, Bucks County and Montgomery County entered into a Water Sales Agreement by which Bucks County agreed to construct (or cause to be constructed by NWRA) the Point Pleasant Pumping Station and combined transmission main and NWRA agreed to construct the north branch transmission main. This agreement provides that 46 mgd is reserved for PECO, in accordance with the Construction and Operation Agreement, while 29.4 mgd is reserved for Montgomery County and 19.6 mgd is reserved for Bucks County. The trial court found that the water reserved for Montgomery County was intended primarily for the benefit of NP and NW, both of which entered into contracts for the water with Montgomery County simultaneously with the execution of the Water Sales Agreement. Montgomery County itself operates no water treatment or delivery facilities.
Later, Bucks County purported to terminate its Construction and Operation Agreement with PECO, demanded that NWRA stop construction of the Point Pleasant Pumping Station and combined transmission main and purported to terminate its obligation to supply water to Montgomery County. Construction recommenced The trial court's adjudication ordered that (1) NP and NW be assigned ownership of and complete the north branch transmission main and water treatment plant and that portion of the western transmission facilities necessary to transport water to them and that NP and NW reimburse Bucks County and NWRA for all properly incurred costs of these facilities, (2) NWRA complete construction of the Point Pleasant Pumping Station and the combined transmission main and (3) Bucks County comply with its contractual obligations, under the Construction and Operation and Water Sales Agreements, to insure completion of the Point Pleasant Pumping Station and the combined transmission main.
after a thirty-day moratorium. However, the Bucks County Commissioners next passed Ordinance No. 59 which purported to require NWRA to convey the Point Pleasant project to Bucks County (apparently so that they could stop the project). [92 Pa.Cmwlth. 219] Thereafter, the NWRA ordered a second suspension of construction and passed a resolution questioning the validity of the Construction and Operation and Water Sales Agreements. Finally, Bucks County passed a resolution directing NWRA to delete the project from its water supply system.
Our scope of review in equity matters is limited to a determination of whether the Chancellor committed an error of law or abused his discretion. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980). We will not disturb his findings unless they are unsupported by the evidence or demonstrably capricious. Harrisburg School District v. Pennsylvania Interscholastic Athletic Association, 453 Pa. 495, 309 A.2d 353 (1973).
The major contentions of Bucks County and NWRA are that (1) the Construction and Operation and Water Sales Agreements are invalid, not binding and unenforceable, (2)(a) PECO is not a third-party beneficiary to the Water Sales Agreement, despite its relationship to the Construction and Operation Agreement, and therefore has no standing to enforce it and (b) NP and NW are not third-party beneficiaries to the Water Sales Agreement and therefore have no standing to enforce either agreement, (3) Bucks County and NWRA have breached neither agreement, (4) specific performance is not the appropriate relief, (5) NP and NW are not entitled to assume ownership of and complete the north branch transmission main and water treatment plant and that portion of the western transmission facilities necessary to transport water to them and (6) President Judge Garb improperly refused to recuse himself.
Sullivan argues that the common pleas court erred by granting Bucks County and NWRA's preliminary objections and dismissing his third amended complaint.
We will examine each legal issue seriatim. 1
Bucks County and NWRA contend that the project will predominantly serve the private interests of PECO, 2 allowing it to thwart the public interest of Bucks County. However, we agree with the trial court's holding that the agreements serve important and legitimate public purposes, specifically supplying water to Bucks and Montgomery Counties, and therefore are not invalid or ultra vires under the Municipality Bucks County and NWRA also argue that the agreements grant PECO, NP and NW an improper loan. Again, we agree with the trial court's holding that the agreements are predominantly for public purposes and, therefore, do not violate the constitutional prohibition, against a government's use of its credit to finance a private entity. 6
[92 Pa.Cmwlth. 221] Authorities Act of 1945 (Act), 3 because they benefit the public, and not primarily a private endeavor. See Price v. Philadelphia Parking Authority, 422 Pa. 317, 333, 221 A.2d 138, 147 (1966) (the parking authority was empowered to act only for the public benefit and could not employ its resources for the primary and paramount benefit of a private endeavor). Bucks County and NWRA rely heavily on Price to support their position that PECO would receive the primary benefits of the...To continue reading
Request your trial
-
Drummond v. University of Pennsylvania
...parties entered into their agreement. Spires, 364 Pa. at 57 n. *, 70 A.2d at 831 n. *. See also Sullivan v. County of Bucks, 92 Pa.Commonwealth Ct. 213, 499 A.2d 678 (1985), appeal denied, 516 Pa. 623, 532 A.2d 21 The Supreme Court also adopted Restatement (Second) of Contracts § 302 (1979)......
-
Alburger v. Philadelphia Elec. Co.
...A.2d 348, petition for allowance of appeal denied, 514 Pa. 644, 523 A.2d 1132 (1986); (Del-AWARE/DER ); Sullivan v. County of Bucks, 92 Pa. Commonwealth Ct. 213, 499 A.2d 678 (1985). Both results are unwarranted under what I perceive to be the law in Pennsylvania and what I would urge shoul......
-
Del-Aware Unlimited, Inc. v. Com., Dept. of Environmental Resources
...Again, we recognize that this construction has inspired widespread public discussion and disagreement. See Sullivan v. County of Bucks, 92 Pa.Commonwealth Ct. 213, 499 A.2d 678 (1985). Nonetheless, we are obliged and intend to confine our consideration to the merits of the legal issues As w......
-
Del-Aware Unlimited, Inc. v. Com., Dept. of Environmental Resources
...Ct. 634, 513 A.2d 593 (1986), allowance for appeal denied, 515 Pa. 587, 527 A.2d 547 (1987); Sullivan v. County of Bucks, 92 Pa.Commonwealth Ct. 213, 499 A.2d 678 (1985); Philadelphia Electric Co. v. Department of Environmental Resources, 108 Pa.Commonwealth Ct. 7, 529 A.2d 1137 (1987).2 Th......