92 Pa. Commw. 213 | Pa. Commw. Ct. | 1985
Opinion by
For our consideration and resolution herein are litigous challenges to the construction of facilities to supply water for cooling a nuclear generating station in Limerick, Montgomery County, Pennsylvania, and meeting the citizens ’ requirements of Bucks and Montgomery Counties.
This construction has inspired widespread public discussion and disagreement. Notwithstanding that vocal, philosophical and/or political dichotomy, we are obliged and intend to confine our consideration to the merits of the legal issues presented below.
Bucks County and the Neshaminy Water Resources Authority (NWRA) appeal a Bucks County Common Pleas Court order denying their exceptions
Daniel J. Sullivan, a taxpayer, appeals a Bucks County Common Pleas Court order granting the preliminary objections of Bucks County and NWRA and dismissing his third amended complaint.
The purpose of the Point Pleasant water diversion project is to construct a system by which Delaware River water could be withdrawn by the Point Pleasant Pumping Station and pumped through a combined transmission main to the Bradshaw Reservoir and Pump House (Bradshaw) where (1) water for public use by Bucks and Montgomery Counties would flow through the north branch transmission main and along the Neshaminy Creek to the north branch water treatment plant where it would be pumped, in part, to NP and NW and (2) supplemental cooling water for PECO’s Limerick nuclear generating station would be pumped through the east branch transmission main and flow along the Perkiomen Creek to the Perkiomen Pump House where it would be withdrawn and pumped to Limerick. Supplemental cooling water is necessary because PECO is prohibited from using Schuylkill River water for several months each year.
PECO and NWRA entered into a Construction and Operation Agreement by which NWRA agreed to construct and maintain the Point Pleasant Pumping Station and combined transmission main, PECO assumed responsibility for constructing Bradshaw (where it agreed to store and release water to flow through the north branch transmission main, at no cost to NWRA) and NWRA assumed sole responsibility for the north branch transmission main. The agreement provides that the project’s ultimate ea
NWRA, Bucks County and Montgomery County entered into a Water Sales Agreement by wbicb Bucks-County agreed to construct (or cause to be constructed by NWRA) tbe Point Pleasant Pumping Station and combined transmission main and NWRA agreed to construct tbe north branch transmission main. Tbis agreement provides that 46 mgd is reserved for PECO, in accordance with tbe Construction and Operation Agreement, while 29.4 mgd is reserved for Montgomery County and 19.6 mgd is reserved for Bucks County. Tbe trial court found that the water reserved for Montgomery County was intended primarily for'the benefit of NP and NW, both of wbicb entered into contracts for tbe water with Montgomery County simultaneously with tbe execution of tbe Water Sales Agreement. Montgomery County itself operates no water treatment or delivery facilities.
Later, Bucks County purported to terminate its Construction and Operation Agreement with PECO, demanded that NWRA stop construction of tbe Point Pleasant Pumping Station and combined transmission main and purported to terminate its obligation to supply water to Montgomery County. Construction recommenced after a thirty-day moratorium. However, the Bucks County Commissioners next passed Ordinance No. 59 wbicb purported to require NWRA to convey tbe Point Pleasant project to Bucks County (apparently só that they could stop tbe project).
The trial court’s adjudication ordered that (1) NP and NW be assigned ownership of and complete the north branch transmission main and water treatment plant and that portion of the western transmission facilities necessary to transport water to them and that NP and NW reimburse Bucks County and NWRA for all properly incurred costs of these facilities, (2) NWRA complete construction of the Point Pleasant Pumping Station and the combined transmission main and (3) Bucks County comply with its contractual obligations, under the Construction and Operation and Water Sales Agreements, to insure completion of the Point Pleasant Pumping Station and the combined transmission main.
Our scope of review in equity matters is limited to a determination of whether the Chancellor committed an error of law or abused his discretion. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980). We will not disturb his findings unless they are unsupported by the evidence or demonstrably capricious. Harrisburg School District v. Pennsylvania Interscholastic Athletic Association, 453 Pa. 495, 309 A.2d 353 (1973).
The major contentions of Bucks County and NWRA are that (1) the Construction and Operation and Water Sales Agreements are invalid, not binding and unenforceable, (2) (a) PECO is not a third-party beneficiary to the Water Sales Agreement, despite its relationship to the Construction and Operation Agreement, and therefore has no standing to enforce
Sullivan argues that the common pleas court erred by granting Bucks County and NWRA’s preliminary objections and dismissing his third amended complaint.
We will examine each legal issue seriatim.
Validity
■ Bucks County and NWRA contend that the project will predominantly serve the .private interests of PECO,
Bucks County and NWBA also argue that the agreements grant PECO, NP and NW an improper
Bucks County and NWBA further contend that the (Construction and Operation Agreement, in effect, allows PEiCO to exercise governmental powers. We hold, however, that while it allows PECO limited input
Standing
We hold that PECO, NP and NW have third-party beneficiary standing, to enforce both interrelated agreements under the concepts of Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983).
With respect to the Water Sales Agreement, the Spires test has been met because the parties mutually intemded. as manifested in the agreement, that NP and NW would be beneficiaries of Montgomery County’s water purchase (in which it had no direct interest)
The standing of PECO, NP and NW to enforce these agreements clearly follows from their third-party beneficiary status. See Fitzgerald v. Kwaterski, 318 Pa. 494, 178 A. 385 (1935). See also RESTATEMENT (SECOND) OF CONTRACTS §307 (1979).
Initially, Bucks County contends that its execution of the Construction and Operation Agreement, providing for assignment to insure operation and maintenance of the project, does not obligate it under that agreement’s construction provisions or effect a present assignment. We agree. The trial court held that Bucks County is bound only to the extent that its acceptance of the assignment obligated it to do certain things under the provisions of the agreement. Its adjudication merely orders Bucks ¡County to do all ■things which it is contractually obligated to do so that the project, as contemplated by the agreement, may be completed. Nonetheless, to the extent that the NWRA is its creature,
It is abundantly clear that Bucks County and NWRA breached both agreements by virtue of their failure to proceed expeditiously and their declared intention not to complete the project.
Having found that these agreements are not ultra vires and because PECO, NP and NW relied on them, we also upheld the trial court’s conclusion that Bucks County and NWBA are estopped from denying their resulting contractual obligations.
Where there is good faith reliance on valid agreements, we must draw the line between governmental adaptability and contractual certainty in such a way as to shield such agreements from political pressure and uphold the will of the people, as delegated by them to their duly-elected representatives, declared at the time the agreements were made. This is the heart of the democratic process.
Remedy
Bucks County and NWRA contend that damages are the appropriate relief because reasonable alternatives to the project existed and that delay and/or cancellation of the project will not further jeopardize a Limerick operating permit.
However, a decree of specific performance may properly be entered if damages are not reasonably ascertainable or are inadequate. Clark v. Pennsylvania State Police, 496 Pa. 310, 436 A.2d 1383 (1981).
Bucks County and NWRA further contend that their failure to build would cause PEiCO no consequential damages because of regulatory problems with Limerick’s operation. However, we hold that, although resulting damages might be difficult to calculate, it cannot be said that the failure to build would not damage PEO.O. Moreover, the argument that a degree of specific performance should await resolution of pending regulatory matters is untenable. Obviously, a project of this magnitude has to be built one step at a time. If every permit and requirement were a sine qua non to the other, it could never be built. The parties obviously contemplated that all permits would not be in place at the time of construction in light of the Construction and Operation Agreement’s provisions regarding withdrawal in the event necessary permits are not issued.
The trial court held that, under paragraph 5, page 7 of the Water Sales Agreement, NP and NW are entitled to assume ownership of and complete the north branch transmission main and related facilities. Bucks County argues that, according to the agreement’s terms, only Montgomery County had the option, upon failure of Bucks County and NWBA to pursue the project, to (1) terminate the agreement and (2) complete that portion of the project necessary to supply it with water. It further contends that President Judge Garb abused his discretion by ordering specific performance in addition to the partial takeover. We disagree. Having determined that NP and NW have standing to enforce the agreement, we further hold that they may acquire the rights of Montgomery County to complete the portion of the project intended primarily for the 'benefit of their consumers. Moreover, we hold that the contractual remedy, while available, is not exclusive because such an intention is not clearly set forth in the agreement. See Bettinger v. Carl Berke Assoc., Inc., 455 Pa. 100, 314 A.2d 296 (1974).
Tlie major procedural contention of Bucks County and NWRA is that President Judge Garb erred in denying their petitions for recusal.
Our Supreme Court has held that if, upon a review of the record, an appellate court determines that a fair and impartial trial was had, the alleged disqualifying factors of the trial judge become moot. Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). Bucks County and NWRA argue that the ownership of PECO stock by the estate of President Judge Garb’s father from December 24, 1983 to July 13, 1984 and President Judge Garb’s service as chairman of the interim Board of Elections of Bucks Oounty has deprived them of a fair and impartial trial. We disagree. Obviously, any interest President Judge Garb may have had in the PECO stock owned by his father’s estate could not have affected his impartiality because the stock was sold prior to the trial’s conclusion and, therefore, be could not have received
There is nothing in the record to indicate that President Judge Garb’s service on the Board in any way affected his fairness and impartiality. President Judge Garb served on the Board pursuant to Section 301(c) of the Pennsylvania Election Code,
Sullivan contends that he is a third-party beneficiary, as a taxpayer, to the Construction and Operation and Water Sales Agreements and therefore entitled to sue for recovery of damages to Bucks County (costs of attempting to stop the project, litigation and construction already completed) from its Commissioners and the NWRA Board members and/or completion of the project and the acceptance by Bucks County of the benefit originally contemplated. The trial court granted the preliminary objections of Bucks County and NWRA to Sullivan’s third amended complaint, which raised its failure to state a cause of action, and dismissed it in its entirety. The court, however, recognized Sullivan’s standing as a taxpayer with respect to this lawsuit and allowed Mm to be considered a party to the complaints of PECO, NP and NW to the extent that he seeks the same relief.
We agree with the trial court’s conclusion that despite his standing to bring an action, Sullivan failed to state a separate cause of action in his third amended complaint.
We hold that there is substantial evidence in the record to support the trial court’s findings and that it committed no abuse of discretion or error of law in its adjudications.
Affirmed.
The orders of the Court of Common Pleas of Bucks 'County, No. 83-8358 dated February 27, 1985 and. No. 83-8358-05-5 dated May 29, 1984, are affirmed.
Due to our resolution of these legal questions, it is unnecessary to address the collateral contentions of Bucks County and NWRA.
Bucks County specifically argues that it will receive no benefit from the project. However, our review of the record reveals that Bucks County would benefit but for the refusal of its water authorities to accept water from the project. Indeed, the trial court found that the capacities reserved in the Construction and Operation Agreement most accurately reflected the parties’ water .needs. Our review of the record reveals that this finding is supported by substantial evidence in the form of the project’s design engineer’s testimony.
Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§301-22.
Bucks County and NWBA’s argument that the project does not provide “public benefit” because 24.4 mgd, of the 49 mgd going to Bucks and Montgomery Counties, is reserved for Montgomery County is meritless. Supplying water to either county provides a public benefit. NWBA, as a municipal authority, is an agency of the Commonwealth and acts to benefit the people of the Commonwealth. Section 4A of the Act, 53 P.S. §306A.
The project is part of Bucks County’s water supply system which itself is part of its water management program. PECO is a major purchaser of water from NWBA and the sale of water is necessary for the retirement of the public bonds sold to finance the water management program.
PA. CONST, art. IX, §9 provides:
The General Assembly shall not authorize any municipality or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation,' association, institution or individual.
This provision has been construed to mean that a municipality may not lend its credit to a purely private enterprise. Rettig v. Board of County Commissioners, 425 Pa. 274, 228 A.2d 747 (1967).
The Construction and Operation Agreement does not delegate . to PECO the right to construct or require construction according to ■. its plans and specifications. Under this agreement, PECO is only empowered to (1) approve additions or improvements and their ' associated costs in writing before charges to it may be increased and (2) make recommendations concerning these additions and improvements if they would adversely affect its supply of water. . Delegation merely of details of administration is not constitutionally prohibited. Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, 87 A.2d 474 (1952). Moreover, even these recommendations need not be followed if they would require the NWBA to violate its obligation to comply with all public bidding requirements and any applicable laws.
Weatherly Borough v. Warner, 148 Pa. Superior Ct. 557, 25 A.2d 831 (1942) (curbing ordinance held to be an unconstitutional delegation of the Borough’s power), is distinguishable from this case. There the Superior Court held that the ordinance went beyond delegation of administrative tasks, seeking to “delegate to others the authority, not only to decide upon the materials to be used, the manner of performing the work and the character of the finished result hut also to determine what curbing should he constructed.” Id. at 559, 25 A.2d at 832 (emphasis added).
As* recognized in the bond indenture documents for the water management program, the project is only one small part of the program. Although the program could remain viable without the project, the project is a proprietary step toward both the fiscal and substantive realization of the program. “Property employed by a municipality in furnishing water to its inhabitants is not used for governmental purposes, and in its ownership and operation the municipality acts in its proprietary capacity.” Pleasant Mills Borough v. Jefferson Township, 375 Pa. 431, 437, 100 A.2d 720, 723 (1953).
We reject the argument that the Water Sales Agreement is invalid because it was entered into by the predecessors of the present Board of County Commissioners. In MacCalman v. Bucks County, 411 Pa. 316, 191 A.2d 265 (1963), our Supreme Court held that if, as here, the County’s commitment is characterized as proprietary, the Commissioners have the power to obligate themselves beyond the tenure of a particular Board. Further, the trial court acknowledged the urgent need for water now experienced by NP and NW as well as PECO. Our Supreme Court stated that:
(Even if an agreement] is ‘deemed to constitute a contractual impairment or limitation upon future county commissioners in a legislative or governmental function, . . . considerations of urgency and necessity, especially when coupled with the stipulated public interest and absence of bad faith or ulterior motivation, should permit the commitment to be sustained as an exception to the general rule’ . . . that a legislative body, or municipal board having legislative authority, may not properly bind its successors and may not legally enter into a contract which will extend beyond the term for which the members of the body were elected.
id. at 321, 191 A.2d at 267 (quoting lower court) (emphasis added; original emphasis omitted).
This provision of the Constitution provides:
The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or*224 otherwise, or to levy taxes or perform any municipal function whatever.
This provision of the Constitution has been held to apply to municipal corporations as well as agents of the State. See Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90 (1937) and Weatherly Borough.
We hold that the Water Sales Agreement does not surrender control over governmental functions to Montgomery County, NP or NW. That agreement specifically gives the power to control and construct the project to NWRA. Moreover, PA. CONST, art. Ill, §31 does not prohibit delegation of control over a public project from one municipal entity to another.
Further, we find no merit in the contention that NWRA’s promise to build violates this provision. Merely contracting to build the project delegates no authority to anyone.
Bucks County and NWRA argue that they are released from their obligation to perform by the “force mageure” provision of the Construction and Operation Agreement, which reads:
A party shall not be considered in default in the performance of its obligations hereunder, or any of them, to the extent that performance of such obligations, or any of them, is prevented or delayed by any cause, existing or future, which is beyond the reasonable control of such party. . . .
However, it simply cannot be said that prevention or delay in the'performance of the obligations of Bucks County and NWRA, based on their disinclination to proceed with the project, is beyond their reasonable control. Despite NWRA’s contentions, Bucks County is not totally outside the Construction and Operation Agreement and its refusal to construct will not exonerate NWRA. Bucks County’s precise duties under the Construction and Operation Agreement will be discussed under BREACH.
The Water Sales Agreement makes specific reference to NP and NW. Paragraph 14 provides that Montgomery County will not sell water to any municipality or municipal authority or private water company or water utility within Bucks County without the written approval of Bucks County,
*226 except that it may sell water for use in those municipalities which are presently being serviced by a municipal authority located in Montgomery County presently serving municipalities in Bucks County. In no event, however, shall MONTGOMERY sell water to those Authorities to enable them to extend or expand their existing service areas into BUCKS said service areas are [sic] shown on exhibit 6 without written consent of BUCKS, which consent shall not be unreasonably withheld.
This provision clearly applies to NP and NW because, as found by the trial court, they are the only municipal authorities in Montgomery County which service municipalities in Bucks County. Exhibit 6, which is specifically referred to in that paragraph, is a map of the portion of Bucks County which is serviced by NP and NW. Both are specifically identified on that exhibit.
Circumstances which the trial court found to indicate that Montgomery' County intended to give NP and NW the benefit of thé promised performance include (1) Montgomery County operates no treatment, delivery or sales facilities and had to be contracting for someone, (2) NP and NW entered into contracts for water with Montgomery County simultaneously with the execution of the Water-Sales Agreement, (3) the Water Sales Agreement was appended as an exhibit to the contracts between Montgomery County, NP and NW and (4) NP and NW were part of the project’s planning and development process from a very early stage, in order to secure a percentage of the water it would supply and both Bucks County and NWRA participated with them in these endeavors (once the discussions were halted while NP and NW temporarily reconsidered their positions).
Circumstances indicate that Montgomery County intended to give PECO the benefit of the promised performance insofar as Montgomery secured Bucks County’s promise to construct (or cause to be constructed by NWRA) the project and to reserve 46 mgd for PECO.
The Spires Court explained that “a third party beneficiary may be in contemplation without being specifically or Individually designated.” Spires, 364 Pa. at 57 n.*, 70 A.2d at 831 n.*. Given the major role that the trial court found NP and NW played in the project’s planning and development process, we hold that they were in contemplation when NWRA reserved 49 mgd of the project’s ultimate capacity in the Construction and Operation Agreement.
The very fact that NP and NW were, from a very early stage, part of the project’s planning and development process with PECO Indicates that PECO intended to give them the benefit of the promised performance.
NWRA is a municipal authority created as an independent agency by the Bucks County Commissioners.
A party to a contract cannot avoid its conditional contractual obligations by causing the failure of the condition. See Commonwealth v. Transameriea Insurance Co., 462 Pa. 268, 274, 341 A.2d 74, 77 (1975).
It is important to recognize that the trial court did not invade any area of discretionary executive or legislative function, but merely acted to redress the breach of these agreements. In Delaware River Port Authority v. Thornburgh, 500 Pa. 629, 459 A.2d 717 (1983), our Supreme Court refused to order the General Assembly to meet its statutory obligations, under the Delaware River
Bucks County argues that it has not breached its contractual obligations because (1) it exercised its power under Section 4A of the Act, 53 P.S. §306A, to “specify” the projects to be undertaken by the NWBA, by passing the resolution directing NWBA to withdraw and (2) having done so, it is not in breach of its obligations because NWBA is unable to go forward. This argument is unpersuasive. The power to specify undertakings does not imply the power to withdraw approval. Bucks County cannot, directly or indirectly, legislate away responsibility for its proprietary contracts. See Fidelitp-PMladelpMa Trust Oo.
Bucks County further contends that, because it has the power to approve certain aspects of -the project pursuant to Section 1.02 of the Agreement and Lease (an agreement between Bucks County and NWBA regarding the total Water Management program), is .free to unilaterally withhold or withdraw such approvals and thus vitiate the Water Sales and Construction and Operation Agreements. There is no merit to this suggestion. Under Section 1.05(a) of the Agreement and Lease, Bucks County is obligated to consider the
Bucks County and NWRA contend that specific performance should not be awarded because it would involve the Chancellor in continuing supervision of the parties’ performance. We disagree. Initially, we must presume that Bucks County and NWRA, as gov
The damages to PECO cannot be calculated because there is no way to accurately anticipate (1) how many days a year Limerick would be shut down for lack of a supplementary cooling water source, (2) how much time will elapse before an acceptable alternative source could be secured and (3) the cost of a new environmental impact study.
Similarly, the damages to NP and NW cannot be calculated because there is no way to accurately anticipate how long it will take to secure an acceptable alternative water soitrce.
Bucks County and NWEA have suggested that alternative water sources (1) for PECO included the Blue Marsh Reservoir, treated water purchased from Philadelphia or even the Schuylkill River (if certain temperature restrictions were eliminated) and (2) for NP and NW included impoundments, the proposed Evansburg Reservoir, sales from other water companies and the purchase of water from Philadelphia. However, there is nothing on the record to indicate that regulatory approval could be acquired, by either PECO, NP or NW, for any of these suggested alternative water sources.
PECO’s application to the Delaware River Basin Committee (DRBC) for temporary relief during 1985 (which DRBC has not acted upon) does not support the contention of Bucks County and NWRA that PECO would be assured of obtaining an alternative source of supplemental cooling water on a long-term basis.
Although there is evidence to show that representatives of PECO made numerous statements to bond rating agencies, such as Standard and Poor, that if the project were not constructed, alternative sources of cooling water would be found, it is not surprising that PECO should attempt to paint a rosy picture for the financial community in order to enjoy a favorable interest rating in the bond market. We hold that this evidence does not refute the trial court’s finding as to the uncertain availability of alternative water sources.
This being the case, we further hold that Bucks County and NWBA were not prejudiced by the trial court’s denial of their petition, to depose three employees of bond rating agencies and a representative of PECO’s investment banking firm, which was filed after the trial court’s properly imposed deadline for discovery.
Despite the contention of Bucks County and NWBA, there is great, uncertainty over whether the Nuclear Regulatory Commission (NBC) would grant an operating permit for limerick if the project were disallowed, given the fact that initial approval was given talcing into consideration the project’s operation.
Bucks County and NWRA argue that PECO was aware, at a relatviely early date, of strong public opposition to the project and therefore cannot be excused for failing to seek alternative sources of water. Of coxxrse, PECO had no way of knowing that the opposition would in fact cause the discontinuance of the project. Furthermore, the trial coux-t found that any alternative for which PECO sought licensing would probably have met with the same public opposition as mounted against this project.
Bucks County and NWRA’s actions to date, with respect to commencement of construction, are not “wholly volxxntary” merely because all permits have not yet been received. The Water Sales Agreement provides only that:
All major approvals required by any governmental agency for the Treatment Plant, the Point Pleasant Pumping Facilities, and the Western Transmission Facilities, must he received prior to the award of the construction contracts ....
Moreover, Bucks County and NWKA have waived their rights under the “cancellation clause” in the Water Sales Agreement, which requires that the exercise thereof “take place within thirty (30) days after the opening of construction bids for the Treatment Plant, (Western Transmission Facilities) and the Point Pleasant Facilities, whichever is last.” (Emphasis added.) They may not forestall seeking bids for one phase of the project (theoretically allowing them an indefinite time to cancel) after they have begun construction of other phases, because the agreement provides “that the award of the construction contracts shall he made simultaneously.” (Emphasis added.)
Our discussion of the merits of Bucks County and NWEA’s recusal petitions is equally applicable to Sullivan’s similar petition.
Bucks County and NWRA also argue that (1) the claims of NP and NW should have been submitted to arbitration, (2) the trial court improperly refused them a jury trial and (3) the trial court erred by bifurcating the damage issue from the specific performance issues. We disagree.
They argue that the trial court erred by not requiring the submission of NP and NW’s claims to arbitration pursuant to the arbitration provision contained in the Water Sales Agreement, which provides:
Any questions in dispute under this Agreement shall be submitted to a Board of Arbitration ....
(Emphasis added.) However, we are not here concerned with disputes “under this Agreement,” but with a dispute as to whether there is an enforceable agreement at all and an attempt to obtain relief from a total breach.
We hold that the trial court, pursuant to Pa. R.C.P. Nos. 213(b) and 126, correctly bifurcated the damage issue from the specific performance issues because it was virtually impossible to determine what damages flowed from the breaches of Bucks County and NWRA.
Bucks County and NWRA also assert as error the trial court’s refusal of a jury trial. The fact that the trial was an equitable action is clear from the trial court’s bifurcation order which limited the hearing to “issues of equitable relief including specific performance.” Pa. R.C.P. No. 1513 only provides that, in equity actions, a “court . . . may submit to trial by jury any or all issues of fact.” Because this section also provides that “[t]he verdict of the jury shall be in the form of answers to specific questions and shall not be binding upon the court,” the trial court determined that the complicated issues in this case would best be resolved by a Chancellor sitting without a jury. We hold that the trial court properly exercised its discretion. Our conclusion is not affected by the fact that NP and NW seek declaratory relief because “[d]eelaratory judgment procedures afford no independent rights to a jury trial other than those arising from the underlying action.” Brenckle v. Arblaster, 320 Pa. Superior Ct. 87, 93, 466 A.2d 1075, 1077 (1983). See also 42 Pa. C.S. §7539 and Pa. R.C.P. No. 1602.
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
Our review of the record reveals no effect on the substantial rights of Bucks Oounty and NWRA caused by the trial court’s expedited commencement of the proceedings.
These arguments by Bucks Oounty and NWRA are meritless.
President Judge Garb allowed an immediat e expedited appeal from his denial of the motions for recusal pursuant to 42 Pa. O.S". §702(b) and Pa. R.A.P. 1311.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2641 (c), provides in .part:
Whenever a member of the board of county commissioners is a candidate for nomination or election to any public office, the President Judge of the Court of Common Pleas shall appoint a judge or an elector of the county to serve in his stead.
The referendum question read as follows:
NOTICE: Your vote on the question below is not legally • binding on any governmental body or official and is merely advisory.
Should Bucks County stop its participation in the construction now under way of the Point Pleasant Water Diversion Project, taking into consideration (a) the project’s potential effect on the environment; (b) such termination would not affect the right of Montgomery County and the Philadelphia Electric Company to proceed with the project;
(e) Bucks County most probably would be subject to pay substantial money damages as a result of breach of contract; (d) the need of Bucles County for water and water management; (e) the cost of the entire project; and (f) any other factor you believe is appropriate to this decision?
This question merely provides an objective explanation of the possible consequences of Bucks County’s withdrawal from the project. Section (b) merely explains that Montgomery County and PECO could simply build the project without Bucks County and Section (e) merely alerts the electorate of the probable (not certain) financial consequences of a breach, if such were found.
Sullivan's complaint contains several allegations separate and apart from those charged by PECO, NP and NW.
First, Sullivan’s complaint alleges that Bucks County lacks authority to take over the project, under Section 18(A) of the Act, 53 P.S. §321(A), relying on County of Mifflin v. Mifflin County Airport Authority, 63 Pa. Commonwealth Ct. 56, 437 A.2d 781 (1981). However, the trial court correctly distinguished that ease where, unlike here, (1) piwisions in outstanding trust indentures financing an airport, limited the County’s right to acquire the Authority’s assets to its failure, neglect or cessation of operation and (2) compliance with the Local Government Unit Debt Act, Act of April 28, 1978, P.L. 124, as amended, 53 P.S. §§6780-1 — 6780-609, was not shown. This is not a case where a municipal authority is foisting its debts upon the governing body, without its consent, in
Sullivan’s complaint also seeks to have the implementation of Ordinance No. 59 enjoined, alleging that the Bucks County Commissioners intend to thereby terminate the project and breach their contractual obligations. However, we hold that the trial court correctly refused to enjoin implementation, pointing out that (1) Bucks County’s.assumption of “all obligations” under Section 18(A) would include the contractual obligations and all liabilities for breach, (2) it is presumed that municipal officers act properly for the public good, Robinson v. Philadelphia,, 409 Pa. 80, 161 A.2d 1 (1960), and, absent contrary proof, courts will not interfere with administrative discretion and (3) courts do not assess the wisdom of statutes. Mastrangelo v. Buckley, 433 Pa. 352, 250 A.2d 447 (1969).
Sullivan’s complaint further alleges that implementation is barred by Sections 4C, 12 and 13 of the Act, 53 P.S. §§306C, 315 and 316. The trial court correctly rejected this allegation.
Section 40 provides that the Authority shall have no power to pledge the credit or taxing power of the Commonwealth or any political subdivision, nor shall any of its obligations be deemed to be obligations of the Commonwealth or of any of its political subdivisions. However, this is not a case of the Authority pledging • the credit or taxing power of the County or the Commonwealth but rather a matter of the County opting to assume the assets and liabilities of the Authority. Construing this section as urged by . Sullivan would render Section 18(A) totally meaningless.
Section 12 provides in relevant part:
That the Authority shall not be authorized to do anything which will impair the security of the holders of the obligations of the Authority or violate any agreements with them or for their benefit.
NWRA is doing nothing in the matter before us. Here, we are concerned with Bucks County’s actions under Section 18(A) of the Act.
Lastly, Section 13 provides that “the Commonwealth” will not. alter or limit the rights and powers of the Authority in any manner which would be inconsistent with the continued maintenance and operation of any project (to which a Pederal agency has contributed funds), or the improvement thereof, or which would be inconsistent with the due performance of any agreements
Sullivan’s complaint also alleges a violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. §1983. We, like the trial court, are unable to divine any violation of constitutional rights caused by the enactment of Ordinance No. 59.
Finally, there has been no violation of PA. CONST, art. IX, §9, which applies to purely private enterprises, because NWRA is a creature of Bucks County.
After three amendments, the allegations of Sullivan’s complaint charging fraud and improper motive, which are couched in hypothetical and speculative terms, are insufficient to justify judicial review of Bucks County and NWRA’s discretionary acts. Larrecq v. Van Orden, 21 Pa. Commonwealth Ct. 623, 627-28, 346 A.2d 922, 925 (1975). The mere refusal to proceed with the project, even after financial investments have been made, does not necessarily establish improper motive. Moreover, we will not question the efficiency or financial judgment of municipal officials regarding a construction contract where reasonable men could differ as to the wisest course to follow. Id. at 628, 346 A.2d at 925.