The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Polo, I, L.P. :
:
v. :
:
West Hanover Township :
Sewer Authority, : No. 1283 C.D. 2024
Appellant : Argued: April 13, 2026
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION BY
JUDGE COVEY FILED: May 15, 2026
West Hanover Township (Township) Sewer Authority (Authority)
appeals from the Dauphin County Common Pleas Court’s (trial court) September 3,
2024 order (docketed September 4, 2024) reversing the Authority’s determination
that denied Water Polo, I, L.P. (Water Polo) relief under Act 43 of 2021 (Act 43).1
Essentially, there is one issue before this Court: whether the Authority correctly
concluded that Water Polo was not entitled to Act 43 relief.2 After review, this Court
reverses.
The Authority is a municipal authority that provides sewer services
within the Township. On October 15, 2013, the Authority enacted Resolution 2013-
1
Act 43 amended Section 5607(d)(9) of the Municipality Authorities Act, 53 Pa.C.S. §
5607(d)(9) (relating to authority rate powers).
2
The Authority presents five issues in its Statement of the Questions Involved: (1) whether
Water Polo is entitled to Act 43 relief; (2) whether the trial court applied the wrong standard of
review; (3) whether Water Polo demonstrated that it met the usage requirements for Act 43 relief;
(4) whether the Authority acted within its discretion by enacting Resolution 2022-A-03; and (5)
whether the trial court erred in finding that the amount billed for Act 43 equals 180 gallons per
day. See Authority’s Br. at 6. Because this Court reviews the Authority’s decision, not the trial
court’s decision, it does not address Authority questions 2 and 5. The remaining issues are
subsumed within the issue as restated by this Court, and will be addressed accordingly herein.
A-2, which established the sewer rate, effective January 1, 2013, for Domestic
Establishments3 at $624.00 per year or $156.00 per quarter. See Reproduced Record
(R.R.) at 13. The Authority considers each apartment unit one equivalent dwelling
unit (EDU) for rate purposes.
Water Polo owns the Reserve at Manada Hill (the Reserve), an
apartment complex with multi-family dwellings, in the Township. On June 30,
2021, the General Assembly enacted Act 43, which became effective on August 29,
2021. Act 43 added the following language to Section 5607(d)(9) of the
Municipality Authorities Act (MAA):
The owner of multiple residential units that are served by
a single water meter may periodically request the authority
to adjust the amount billed by showing a minimum of [5]
consecutive years of actual usage data to determine if the
amount billed exceeds the actual usage by 30% or more.
If the usage data shows that an adjustment is needed, the
authority shall appropriately adjust the billing and use the
adjusted amount going forward. When calculating the
new amount, the authority may include up to 10% over the
amount used. After an initial adjustment, the owner may
3
Resolution 2017-A-01 defines Domestic Establishment as:
[A]ny room, group of rooms, apartment, house trailer, building, or
other enclosure connected, directly or indirectly, to the [s]ewer
[s]ystem and occupied or intended for occupancy as separate living
quarters by a family or any other group of [p]ersons living together
or by a [p]erson living alone. Each apartment unit in an apartment
facility is considered a Domestic Establishment. Motels and [h]otels
are excluded from this definition. In the special case where multiple
separate and detached dwelling units are permitted to be constructed
on the same property, each separate dwelling unit shall be a separate
Domestic Establishment.
Reproduced Record at 24. The Authority’s Reproduced Record fails to comply with the
Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the
reproduced record . . . shall be numbered separately in Arabic figures . . . thus 1, 2, 3, etc., followed
in the reproduced record by a small a, thus 1a, 2a, 3a, etc.”). However, for consistency, the
citations herein are as reflected in the Reproduced Record.
2
not request another adjustment for five years after the
adjustment is completed.
53 Pa.C.S. § 5607(d)(9) (emphasis added).
On September 20, 2022, the Authority approved Resolution 2022-A-3,
which sets forth its process and criteria for Act 43 relief. Resolution 2022-A-3 states,
in relevant part:
5. Any qualifying owner seeking Act 43 relief shall
provide five (5) years of actual water usage data prepared
by a public water utility or from a well as provided by a
calibrated meter. Meter calibration must be provided by a
third[-]party company or agency registered with and
approved by the Commonwealth of Pennsylvania.
6. Upon receipt of a complete [Billing Adjustment
Application Form (]Application[)], the Authority shall
determine the average actual water usage for a metered
Domestic Establishment in gallons per day [(gpd)]/EDU
over the prior [two] years. Such a determination shall be
based on records from Pennsylvania[] American Water
Company [(PAWC)4] or other such water provider. The
Authority shall share this information with the
owner/applicant.
7. To qualify for Act 43 relief, an owner/applicant must
show that its average actual water usage in [gpd]/EDU
is 30% less than the average actual water usage in
gallons per day [gpd]/EDU based on all Domestic
Establishments serviced by the Authority.
8. If the owner can show the 30% less usage, the Authority
will reduce the owner’s sewer rate by the actual
percentage, subject to an additional 10% pursuant to Act
43.
R.R. at 42 (emphasis added).
4
PAWC provides water service to the Reserve. The Reserve is billed for two meters
pursuant to the PAWC records. Each meter has a different number and different usage amounts.
The PAWC can only supply two years of water consumption data for all users within the
Authority’s service area.
3
On December 20, 2022, Water Polo submitted the Application.
Authority staff reviewed the Application, determined that it did not meet the criteria
of Act 43 or Resolution 2022-A-3, and denied the Application by February 24, 2023
notice. On March 10, 2023, Water Polo appealed from the Authority’s decision to
the Authority Board (Board).
On May 25, 2023, a Board hearing officer held a hearing on Water
Polo’s appeal, at which Water Polo presented the testimony of licensed engineer
Fred Ebert (Ebert), President of Ebert Engineering. Ebert explained that he
determined the Authority’s amount billed to be 180 gpd based on the language in
Township Resolution 2017-A-1, Section 3.1, which provides, in relevant part:
B. Each Domestic Establishment shall be billed as a
separate entity based on EDUs. The minimum billing
amount for each Domestic Establishment shall not be less
than that determined for ONE (l) EDU. If two (2) or more
families use separate cooking and/or toilet facilities in an
[i]mproved [p]roperty, the sewer rates and other charges
payable hereunder shall be computed as though each such
family was a separate user with a separate connection to a
[s]ewer.
C. Each metered Non-Domestic Establishment
([c]ommercial, [i]ndustrial, [p]rofessional [o]ffices,
[r]etail [s]tores, [c]hurches, [g]range [h]alls, [s]ervice
[s]tations[,] [g]arages, [a]utomotive [r]epair [s]hops,
[b]arber [s]hops, [b]eauty [s]hops, etc.) grid metered
Multi-Use Establishment shall be billed for the use of the
[s]ewer [s]ystem based on metered usage data collated by
or on behalf of the Authority, except that the billing
amount during any billing period shall not be less than
the billing amount for a single Domestic Establishment
determined for an equivalent billing period.
R.R. at 28 (emphasis added).
Township Resolution 2017-A-1’s Estimated Usage Chart, Table 3-1,
states that the minimum estimated usage for Non-Domestic Establishments is 180
4
gpd. Thus, since, pursuant to Section 3.1(c) of Township Resolution 2017-A-1, the
billing amount for Non-Domestic Establishments must not be less than the billing
amount for Domestic Establishments, Ebert opined that the amount billed for
Domestic Establishments equaled 180 gpd and that residential users were billed at
that rate. Ebert further explained that the Authority’s purported 113.8 gpd amount
billed could not be correct because if that gpd were an EDU, then the residential
users throughout the system are paying 58% more for sewer treatment than the
commercial users and, thus, would essentially be subsidizing the commercial users.
The Authority presented its Manager, Jamie Aston (Aston), who
testified that because all residential users are charged the same flat rate regardless of
the amount they use, Aston “took what was effectively the average usage per
metered customer . . . in the [T]ownship [to determine an average amount billed] and
compared that to the average usage per apartment in the complex.” R.R. at 167.
Aston calculated that the average residential user’s use - the EDU - was 113.8 gpd.
Aston related that the 180 gpd figure in Township Resolution 2017-A-1 was for
planning purposes only, and not the amount billed.
Following the hearing, the Board hearing officer affirmed the
Authority’s denial of Act 43 relief to Water Polo. The Board hearing officer found
that each Reserve apartment is defined as a Domestic Establishment under Authority
Resolution 2017-A-01, and the Authority bills every Township Domestic
Establishment customer a $52.00 per month or $156.00 per quarter flat rate, based
on operational costs, not water consumption. The Board hearing officer further
determined that based on the Authority’s calculations using PAWC data, the average
residential (Domestic Establishment) sewer rental customer in the Township uses
113.8 gpd of water. The Board hearing officer observed that the Authority compared
Water Polo’s usage (94 gpd) with the average usage of a Domestic Establishment
5
user (113.8 gpd) and found that each apartment at the Reserve uses 17.4% less water
than the average Township household.
The Board hearing officer also found that the 180 gpd Ebert referenced
is used only for planning purposes, not billing; there is no limit on sewer usage for
Domestic Establishments and there are instances in which the Reserve greatly
exceeds its 94 gpd average; the Authority must maintain its sewer capacity to treat
these water usage peaks; and, the 180 gpd is not the amount billed because the
Authority does not read water meters – thus, it is not actual usage.
The Board hearing officer concluded as a matter of law:
8. Applicants seeking Act 43 relief must show that “the
amount billed exceeds actual usage by 30% or more.”
(Emphasis added.)
9. Act 43 does not define th[o]se terms[,] nor does it
provide sewer authorities any guidance on how to
calculate the adjustment, particularly in a situation where
a flat rate sewer rate is used. []
10. The parties stipulate that Water Polo’s “actual usage”
is 94 gpd.
11. The “amount billed” is a flat rate of
$52[.00]/month/EDU.
12. The “amount billed” is not based on any particular
[gpd] of water usage. The flat rate of
$52[.00]/month/EDU was established after a thorough rate
study determined that this was [sic] amount needed to
sustain operations of the Authority. []
13. Water Polo argues that the “amount billed” is 180
gpd/EDU. Water Polo did not present any Authority
Resolution or other formal document proving that each
Domestic Establishment is billed for 180 gpd. To the
contrary, all residential units are billed at a flat rate.
....
6
15. The Authority’s decision to compare Water Polo’s
actual water usage with an average of the Authority’s other
residential customers to achieve the computation for any
rate relief under Act 43 is reasonable.
....
19. Water Polo does not qualify for Act 43 relief because
it is serviced by [two] water meters, when Act 43
specifically provides that “[t]he owner of multiple
residential units that are served by a single water meter
may periodically request the authority [for relief]. . . .”
(Emphasis added).
20. Based upon Act 43, applicants must show that “the
amount billed exceeds actual usage by 30% or more.[” 53
Pa.C.S. § 5607(d)(9).]
21. Based upon the computation required by Resolution
2022-A-3, Water Polo[’s] . . . customers use 17.4% less
water than that used by the average household in [the]
Township.
R.R. at 199-200. Accordingly, the Board hearing officer affirmed the Authority’s
decision denying Water Polo Act 43 relief.5
On September 29, 2023, Water Polo filed a petition for review in the
trial court. On September 3, 2024, the trial court reversed the Board hearing officer’s
decision and granted Water Polo Act 43 relief. The trial court explained:
Act 43 does not define the term “amount billed.”
However, there is no indication in the language of the
statute itself that the “amount billed” should involve a
comparison between an apartment complex’s water usage
5
Pursuant to Section 754(b) [of the Local Agency Law, 2 Pa.C.S. §
754(b)], a reviewing court may look only to the evidence relied on
by the fact-finder . . . . “Nowhere in Section 754 [of the Local
Agency Law] is the reviewing court given general authority to make
its own findings of fact and conclusions of law when the local
agency has developed a full and complete record . . . .” [In re]
Thompson, 896 A.2d [659,] 668 [(Pa. Cmwlth. 2006).]
In re Nevling, 907 A.2d 672, 674 (Pa. Cmwlth. 2006) (citation omitted).
7
and the average use of all residential customers in the
[T]ownship. Rather, the implication is that the
comparison should be between the amount of water/sewer
usage that the apartment complex uses ([]actual usage[])
versus the amount of water/sewer usage for which they are
billed ([] amount billed[]).
[Water Polo] provided expert testimony from [] Ebert,
who is a professional engineer and provides services for
fourteen (14) municipal sewer/water authorities. [] Ebert
provided an analysis based on historic meter readings at
[the Reserve,] as well as a review of the [Authority’s]
website and rate resolutions. He opined that the rate
resolutions of [the Authority] all tie to an EDU equaling
180 [gpd]. This is confirmed by the standard for
commercial billing, which sets a minimum amount of 180
[gpd]. Thus, [] Ebert provided his professional opinion
that an EDU is 180 [gpd] based on information provided
by [the Authority] on its website and in its various rate
resolutions. [The trial court] find[s] that this approach is
in keeping with the plain language of Act 43, and [the
Authority] committed an error of law when it defined the
“amount billed” as the average rate of water used by all
residential users within [the] Township.
R.R. at 273. Observing that “[t]he parties agree that the flow from [the Reserve] on
a per unit basis is 94 [gpd,]” the trial court held that Water Polo “is entitled to
judgment in its favor as to its request for Act 43 relief because its actual use is more
8
than 30% less than the amount that it was billed.”6 R.R. at 274. The Authority
appealed to this Court.7
The Authority contends that Water Polo is not entitled to Act 43 relief.
The Authority argues that it properly billed its customers a flat-rate, which is
permissible under the MAA,8 and that, given the flat-rate billing, the proper method
6
The trial court also noted:
There seemed to be some disagreement as to whether [the Reserve]
constituted multiple residential units that are served by a single
water meter. However, it is clear that the apartment complex itself
has a single water meter and the clubhouse, which is not a part of
the instant matter, has a separate water meter. As such we find that
[the Reserve] does fall within the definition of Act 43.
R.R. at 272 n.1. This Court agrees. This Court rejects the Authority’s contention that Water Polo
was not entitled to Act 43 relief because its property is serviced by more than one meter. The
relevant Act 43 language applies to “[t]he owner of multiple residential units that are served by
a single water meter . . . .” 53 Pa.C.S. § 5607(d)(9) (emphasis added). The record evidence
reflects that although Water Polo’s property is served by two meters, the multiple residential units
are serviced by one meter while the clubhouse is served by the other meter.
7
Where the trial court does not take any additional evidence, [this
Court’s] . . . review over the decision of a local agency is limited to
determining whether constitutional rights were violated, whether an
error of law was committed, whether the procedure before the local
agency was contrary to statute, and whether necessary findings of
fact are supported by substantial evidence.
Appeal of Hall, 317 A.3d 1115, 1119 n.3 (Pa. Cmwlth. 2024).
8
This Court has held . . . that there is value in simply being connected
to a sewer system. In Scott Township Sewer & Water Authority v.
Ease Simulation, Inc., 2 A.3d 1288 (Pa. Cmwlth. 2010), th[is] Court
held that the fact that the user paid more for service than a neighbor
did not make the rate per se unreasonable. Scott Twp., 2 A.3d at
1291. In Ack v. Carroll Township Authority, 661 A.2d 514 (Pa.
Cmwlth. 1995) . . . , [this Court] commented that “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 customers, and the
customers challenging the rates receive ‘some’ benefit from the
system.” [Id.] at 518. The charge should be reasonably proportional
9
to determine the amount billed for purposes of Act 43 is to consider the average gpd
use among all those paying the flat rate. Applying such method, the Authority
asserts that the record evidence established that average residential customers used
113.8 gpd (paying $52.00/month) while the Reserve residents averaged 94 gpd
(paying $52.00/month). Thus, according to the Authority, the Reserve residents use
17.4% less water than the average Township resident and, accordingly, Water Polo
does not meet the 30% threshold.
Initially, “[t]he object of statutory construction is to ascertain and to
effectuate legislative intent.” Zelno v. Lyons, 245 A.3d 1185, 1187 n.7 (Pa. Cmwlth.
2021). “Generally, the plain language of the statute ‘provides the best indication of
legislative intent.’” McLaughlin v. Nahata, 298 A.3d 384, 393 n.17 (Pa. 2023)
(quoting Miller v. Cnty. of Ctr., 173 A.3d 1162, 1168 (Pa. 2017)).
Here, the parties agree that Act 43 does not define the term amount
billed. Nor does Act 43 describe the manner in which it is to be applied to fixed-
price billing, where the Authority’s charges have no specific correlation to a
to the value of the service, rather than to the use made of the system.
In re Petition of City of Phila[.], . . . 16 A.2d 32, 35 ([Pa.] 1940).
GSP Mgmt. Co. v. Duncansville Mun. Auth., 126 A.3d 369, 373-74 (Pa. Cmwlth. 2015) (citation
omitted; emphasis added). Further, “[w]here the classification of users has not been proved to be
unreasonable and is clearly uniform, flat rate sewer rental which reasonably relates to the value of
the service rendered may be applied[.]” Chicora Commons, Ltd. P’ship, LLP v. Chicora Borough
Sewer Auth., 922 A.2d 986, 993 (Pa. Cmwlth. 2007) (quoting Patton-Ferguson Joint Auth. v.
Hawbaker, 322 A.2d 783, 786 (Pa. Cmwlth. 1974)).
In earlier litigation between the same parties, this Court held:
[T]he 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. Therefore, . . . the
monthly sewer charges the Authority imposed on Water Polo were
both reasonable and uniform under the MAA.
Water Polo I, L.P. v. W. Hanover Twp. Sewer Auth., 301 A.3d 1009, 1022 (Pa. Cmwlth. 2023)
(record citation omitted).
10
particular customer’s usage. Rather, “[t]he flat rate of $52[.00]/month/EDU was
established after a thorough rate study determined that this was [the] amount needed
to sustain operations of the Authority.” R.R. at 199.
Act 43’s plain language reflects a legislative intent to address inequity
between customer residents of individual homes and customer owners of multiple
residential units served by a single meter (in which residents traditionally use less
services). Here, the Authority has divided the “cost of maintaining the service for
all customers” equally amongst all Domestic Establishments by the imposition of a
flat fee. GSP Mgmt. Co. v. Duncansville Mun. Auth., 126 A.3d 369, 374 (Pa.
Cmwlth. 2015) (quoting Ack v. Carroll Twp. Auth., 661 A.2d 514, 518 (Pa. Cmwlth.
1995)). Thus, the flat rate the Authority charges residential customers does not
reflect the amount of services used by those customers, and, accordingly the 180
gpd/EDU figure (used by the Authority for planning purposes) is not the amount
billed. The Authority’s decision to spread the operational cost equally among all
Domestic Establishments necessitates use averaging of those same customers to
associate a specific gpd with the fixed amount paid, to determine the amount billed.9
This Court discerns no error in the Authority’s analysis. Accordingly, the Authority
correctly determined that Water Polo is not entitled to Act 43 relief.
9
With respect to Ebert’s contention that adopting the Authority’s 113.8 gpd/EDU would
be impermissible because it would mean that residential users throughout the system are paying
58% more for sewer treatment than the commercial users, this Court notes:
So long as properties in a municipality are properly classified and
there is no showing that the complaining sewer rent payer is
discriminated against as compared with other members of his own
class, he has a very heavy burden if he wishes to upset or modify
rental by showing that he is discriminated against with regard to
members of some other class.
Coudriet v. Benzinger Twp., 411 A.2d 846, 848 (Pa. Cmwlth. 1980) (emphasis added).
11
For all of the above reasons, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Polo, I, L.P. :
:
v. :
:
West Hanover Township :
Sewer Authority, : No. 1283 C.D. 2024
Appellant :
ORDER
AND NOW, this 15th day of May, 2026, the Dauphin County Common
Pleas Court’s September 3, 2024 order (docketed September 4, 2024) is reversed.
_________________________________
ANNE E. COVEY, Judge