Argued: October 19, 2017
BEFORE: MARY HANNAH LEAVITT, President Judge ROBERT SIMPSON,
BONNIE BRIGANCE LEADBETTER, Senior Judges.
HANNAH LEAVITT, PRESIDENT JUDGE.
Realty Co., L.P. (Realty) appeals an order of the Court of
Common Pleas of Bucks County (trial court) entering judgment
in favor of the Warwick Township Water and Sewer Authority
(Authority) for two municipal claims together with interest
and attorney fees. Realty asserts that the record does not
support the trial court's conclusion that the Authority
properly assessed Realty for its water and sewer use and,
further, there was no basis for an award of attorney fees.
For the following reasons, we affirm.
facts are undisputed. Realty owns property at 1621 Mearns
Road, Warwick Township, Bucks County, Pennsylvania, which was
created out of a tract of land known as the Mearns Road
Business Campus (Business Campus). Prior to 2003, the
Business Campus had a tax parcel identification of No.
51-13-62. In 2003, Mearns Road Business Campus, L.P.
subdivided the Business Campus into five lots. "Lot 1,
" later conveyed to Realty, retained Business
Campus' tax identification number, and the other four new
lots received new tax designations. Two industrial
condominiums were later developed on Lot 2; Lots 3, 4 and 5
in the 1990s, Mearns Road Business Campus, L.P. operated an
ice skating rink on Lot 1, using a private water well and a
septic system. In July 2006, the rink was connected to the
Authority's water and sewer system. To determine a
customer's tapping fee, the Authority uses Equivalent
Dwelling Units (EDU) to measure water use. The tapping fee is
$4, 500 per EDU for water usage and $6, 300 per EDU for sewer
usage. The Authority assesses one EDU for 270 gallons of
August 31, 2006, Realty purchased Lot 1 and continued to
operate the skating rink. During the last quarter of 2006,
Realty used 96, 000 gallons of water, which equates to 3.95
EDUs. Thereafter, Realty's water usage increased to 9.67
EDUs. By the end of the first quarter of 2009, its water
usage reached 11.15 EDUs.
April 22, 2009, the Authority informed Realty by letter that
the water and sewer usage on Lot 1 exceeded its initial
assessment of 3.06 EDUs. The letter stated as follows:
This letter is to serve notice that the Warwick Ice Rink
located at the Mearns Road Business Campus is exceeding the
water and sewer usage as allocated in the original PA DEP
[Department of Environmental Protection] planning module
submission dated October 29, 1998 and approved by the
The skating rink (Lot #1) was appropriated 825 gallons
per day (GPD) or 3.06 EDU's during the planning and land
development process. The average daily usage over the
last three quarters is 1861 GPD (6.89 EDU's). The first
quarter usage for 2009 has exceeded 11.15 EDU's or 3011
Record at 256a (R.R. ___) (emphasis added).
April 28, 2014, the Authority sent Realty another letter
stating that, following an audit of Realty's water and
sewer history, the Authority determined as follows:
[A]n additional eight (8) E[DU]'s are needed for [Lot 1]
… based on an average usage for the past two (2)
years…. This would bring [Realty's] total
allocation to eleven (11) EDU's. The Authority has the
right to assess the EDU allocation based on the highest
quarterly average which is currently fifteen (15) EDU's.
We have taken a conservative approach in our analysis and
assignment of [Realty's] previous metered usage (copy
attached) and EDU allocation and therefore the invoice dated
April 7, 2014 remains outstanding for this property.
responded that the Authority had assigned 11 EDUs to Lot 1
and, therefore, it could not owe the additional eight EDUs.
In support, Realty noted that on October 29, 2002, Mearns
Road Business Campus, L.P., entered into an agreement with
the Authority for the acquisition of 11 EDUs from the
Authority. Realty further explained:
This was confirmed with the developer, Ed Dudlik of the
Mearns Road Business Campus L.P. at the time in which we had
acquired the property in 2006. In the Agreement of Sale, all
rights, titles, and interests to all EDUs and tap fees were
transferred at the time of our acquisition of the property.
200a. The Authority replied that its 2002 agreement with
Mearns Road Business Campus, L.P., did not have "any
bearing upon the skating rink." R.R. 202a. The Authority
further advised, "[f]ailure to comply with the
appropriate payment will cause the filing of a municipal lien
and consideration of a subsequent termination of Authority
services to the skating rink." Id.
October 24, 2014, the Authority informed Realty that it was
increasing the EDU assessment of Lot 1 from 11 EDUs to 15
Additionally, based upon further review of the Warwick Ice
Rink records, the applicable EDUs for the facility should be
set at 15 rather than the previous indication of 11. Based
upon this revision of EDU charges, a statement from the
Authority will be forthcoming regarding additional fees
(water and sewer) at Four Thousand Five Hundred ($4, 500.00)
Dollars and Six Thousand Three Hundred ($6, 300.00) Dollars
per EDU respectively. Such additional tapping fees are
required to be paid within sixty (60) days of the subject
The originally charged payment of Eighty-six Thousand Four
Hundred ($86, 400.00) Dollars (for the original additional
eight (8) EDUs) remains unpaid and is in the process of
R.R. 220a-221a (emphasis added).
did not pay the additional tapping fees. On October 27, 2014,
the Authority filed a municipal claim pursuant to what is
commonly referred to as the Municipal Claims and Tax Liens
Act (Municipal Claims Act) against Lot 1 for water and sewer
tapping fees for eight additional EDUs in the amount of $86,
430.25, along with associated fees and costs. On February 6,
2015, the Authority filed a second municipal claim against
Lot 1 for tapping fees for four additional EDUs in the amount
of $43, 200, along with fees and costs. Realty requested the
Authority to file a writ of scire facias on each
claim, which the Authority did. Realty then filed an affidavit of
defense. The trial court consolidated the writs and conducted
hearings thereon on December 15, 2015, and January 20, 2016.
support of its claim that Lot 1 was entitled to three EDUs,
the Authority offered a letter dated May 1, 2000, from Thomas
Courduff, the former Executive Director of the Authority, to
Edward Dudlik, ...