18138_Authority_Feb

38 The Authority | February 2025 In response to the Township’s appeal of the Commission’s Order, a Commonwealth Court panel vacated and reversed, holding that, while the Commission did not have jurisdiction over the “rates and service” of an authority, indeed, a municipal entity, including an authority, must obtain a certificate of public convenience and necessity under the Public Utility Code before it begins to serve “beyond the borders” of the municipality or municipalities that created the authority. The Commonwealth Court panel reached its conclusion despite the provisions of the MAA stating that challenges to “the adequacy, safety, and reasonableness of the authority’s services, including extensions thereof” are to be brought in common pleas court and case law from the 1940s’ that had specifically disavowed any Commission jurisdiction over authorities. The panel decision also did not deal with the fact that, under the MAA an authority is specifically empowered to provide service anywhere in the Commonwealth so that its “service territory” is essentially anywhere it decides to provide service. Although there are limitations and conditions on that discretion, the MAA does not require the expanding authority to obtain approval from any entity or to show that the expansion is “necessary or proper for the service, accommodation, convenience, or safety of the public,” the standard that authorities seemingly will now have to meet in order to provide utility service outside the boundaries of their original incorporators. On the other hand, the Panel may have had in the back of its collective minds that the long held statutory scheme was illogical; why should a municipality wanting to serve across its borders need Commission approval not only to serve but also for its rate levels and adequacy of its service, when, if it simply created an authority and provided the same service it would not? But, seemingly, that question was answered by the General Assembly when it enacted the MAA. Whether this sea change in municipal authority law will continue to be binding remains to be seen. Now that the Commonwealth Court has denied petitions for Reargument it is likely that petitions for allowance of appeal to the Supreme Court will be filed. Considering that the Commonwealth Court has changed an accepted tenant of public utility and municipal law which has existed for over eighty years it seems likely that the Supreme Court will have the final say. In the meantime, authorities and their solicitors have some tough decisions if they are considering extending service beyond the limits of their incorporating municipality. S Potential article continued from page 19. Dan Clearfield is Co-Chair of Eckert Seamans’ Regulated Industries (energy, utilities, telecommunications, and regulated substances) Practice Group. He is based in the firm’s Harrisburg office and can be reached at dclearfield@eckertseamans.com. Carl R. Shultz is aMember in Eckert Seamans’ Harrisburg office, where he focuses his practice on public utility and environmental matters. He can be reached at cshultz@eckertseamans.com.