Summary
The Commonwealth Court of Pennsylvania affirmed Pennsylvania Public Utility Commission orders denying Swift & Choi Development, LLC’s petition to intervene in proceedings approving the sale of Cheltenham Township’s wastewater system to Aqua Pennsylvania. The court held that Swift & Choi lacked a sufficiently direct and non-speculative interest for intervention and that its public-interest arguments exceeded the Commission’s jurisdiction. The court also dismissed the Township and Aqua’s application for summary relief as moot.
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Practice areas
Questions Presented
- Whether the Commission abused its discretion in denying Swift & Choi's petition to intervene under 52 Pa. Code § 5.72(a).
- Whether Swift & Choi established a statutory right, a directly affected interest, or an interest supporting intervention in the public interest.
- Whether Swift & Choi could challenge the Commission's approval of the wastewater-system sale and certificate of public convenience despite its failure to develop that issue and its lack of standing after denial of intervention.
Holdings
- Swift & Choi did not establish a right conferred by Pennsylvania or federal statute that entitled it to intervene under 52 Pa. Code § 5.72(a)(1).
- Swift & Choi failed to demonstrate an interest that might be directly affected and was not adequately represented by existing participants, as required by 52 Pa. Code § 5.72(a)(2).
- Swift & Choi failed to establish that its participation was necessary or appropriate to the administration of the Public Utility Code under 52 Pa. Code § 5.72(a)(3).
- The Commission did not abuse its discretion in denying Swift & Choi's petition to intervene.
- The Court did not reach the merits of Swift & Choi's challenge to the sale and certificate because Swift & Choi lacked standing after the denial of intervention and failed to develop the issue in its brief.
Key quotations
“Because S&C’s right to develop the property is no longer clear, we do not discern an abuse of discretion by the Commission in its determination that S&C’s interest was too speculative to meet the requirement of an interest “directly affected,” as required by Section 5.72(a)(2).” (8)
“Finally, S&C does not address the second question listed in its brief—whether the Commission’s order permitting the sale should be reversed. This issue need not be addressed. First, in light of our finding that the Commission did not abuse its discretion in denying intervention, it lacks standing to make arguments on the merits. Second, S&C failed to brief the issue at all, and it is not the role of this Court to make arguments when a party fails to do so.” (11)
Factual background
Aqua sought approval to acquire Cheltenham Township's wastewater system, obtain a certificate of public convenience, and establish a ratemaking base value for the acquired assets. Swift & Choi, a property owner planning a proposed multifamily development, sought to intervene as a putative future wastewater customer. Its prior consent order with the Township concerning development of the property was not enforced by the Montgomery County Court of Common Pleas, and Swift & Choi had neither developed the property nor become a wastewater customer. The Commission found that the proposed development and Swift & Choi's asserted customer interest were speculative, while the Office of Consumer Advocate and the Commission's Bureau of Investigation and Enforcement represented the public interest.
Procedural history
Aqua applied to the Commission for approval of the wastewater-system acquisition and a certificate of public convenience. Swift & Choi sought intervention, but the ALJ denied the petition, the Commission denied exceptions, and the Commission separately approved the acquisition. Swift & Choi petitioned for review; the Commonwealth Court affirmed the Commission's orders and dismissed the summary-relief application as moot.