Borough of Ellwood City v. Heraeus Electro-Nite, LLC, PICS Case No. 17-0726 (Pa. Commw. July 25, 2017) McCullough, J. (14 pages).
The trial court properly held that the Borough of Ellwood City's ordinances precluded the Borough from back-billing for electricity and related services and that the Borough's purported municipal lien premised upon a contractual arrangement was preclude. The court affirmed a trial court order granting defendant's motion for judgment on the pleadings.
August 25, 2017 at 02:06 PM
3 minute read
Municipal Electricity Services • Local Ordinance • Back-Billing • Municipal Lien
Borough of Ellwood City v. Heraeus Electro-Nite, LLC, PICS Case No. 17-0726 (Pa. Commw. July 25, 2017) McCullough, J. (14 pages).
The trial court properly held that the Borough of Ellwood City's ordinances precluded the Borough from back-billing for electricity and related services and that the Borough's purported municipal lien premised upon a contractual arrangement was preclude. The court affirmed a trial court order granting defendant's motion for judgment on the pleadings.
The Borough of Ellwood City is owner and operator of an independent electrical power system that provides electricity within its municipal limits, as authorized by 8 Pa.C.S. §§ 24A01 and A03. Heraeus Electro-Nite Co., LLC operated a plant within the Borough's town limits and was an 18-year customer of the utility. Lighting struck one of the Borough's metering current transformers on an unspecified date, rendering the transformer inoperable. A crew sent to repair the transformer discovered problems with Borough meters, which supposedly caused Heraeus to have been underbilled for electricity and related services for many years. According to the Borough, Heraeus was billed for only about 20 percent of the services supplied. In early 2015, the Borough filed a municipal claim for assessment charges for services rendered, and obtained a $975,457 judgment in the form of a municipal lien. Heraeus filed an affidavit of defense, counterclaim and motion for judgment on the pleadings. The company argued that the entry of the municipal lien was improper because the Borough's ordinance did not allow it to “back-bill” for prior undercharged electricity. The trial court granted Heraeus' motion. The trial court found that Section 1046.43 of the Borough's ordinance allowed prospective changes for electricity and electric services but not retroactive changes. Thus, the Borough was not allowed to back-bill for amounts allegedly under-billed. On appeal, the Borough argued that the trial court erred in holding that the Borough's ordinances precluded back-billing and in determining that a municipal lien may not be imposed because the basis of the lien was statutory and not contractual. The appellate court found that the trial court's decision reflected a plain reading of Section 1046.43(b) of the Ellwood City Ordinance. Since the Borough sought to make a change in billing, Section 1046.43(b) was triggered. Under this provision, any “change in billing …will apply to the bill for the month during which the investigation is made and each month thereafter.” The ordinance did not permit the Borough to change a past bill and back-bill for it. The court also found that, contrary to the Borough's assertion, the lien at issue was not imposed based upon statutory authority but upon an agreement/contract between the parties. Thus, the lien was not lawfully imposed under Section 3(a)(1) of the Municipal Claims Act. In Township of Summit v. Property Located at Vacant Land in Summit Twp., 92 A.3d 121 (Pa. Commw. 2014), the court held that a municipal claim must be lawfully imposed or assessed on the property and that a contractual dispute, by its very nature, cannot become a lien on the property by operation of law, regardless of whether the municipality has a valid cause of action for that claim. Thus, the trial court properly held that the Borough's municipal lien premised upon a contractual arrangement was precluded.
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