impacted by utility acquisitions subject to the Answer at 3. That Commission’s jurisdiction. contention is fact-specific, and NCWA then goes on to state: The interest in this proceeding stems from the Authority’s Authority’s overlapping service territory with Suburbia. service The Authority’s territory covers all of North Coventry Township and portions of East Coventry Township. Because the Suburbia system is located wholly within North Coventry Township, the service territory Authority’s inevitably overlaps with that of Suburbia, which differentiates the interest in the subject matter of this proceeding from the Authority’s interests of the parties in the cases relied upon by the Joint Applicants. Answer at 4. In both Protest and in its Answer, NCWA includes documents as NCWA’s in each respective filing, including a purported system map with its Protest and “Attachment A” an Asset Purchase Agreement with its Answer. Neither of these documents are of any value without the benefit of testimony to explain what they are, or whether they do establish an Aqua produced nothing of probative value that would contradict the “overlap.” However, assertion that the service territories overlap. That being said, doubt with respect to the factual averments in a preliminary any objection must be resolved in favor of the non-moving party by refusing to sustain the preliminary objections. 802 A.2d 705 (Pa.Cmwlth. 2002) (Emphasis added). In Boyd v. Ward, this case, the is the extent of the area served by Superior/Suburbia and whether that area “doubt” does, in fact, overlap with the service area of NCWA. Given this unresolved factual issue, the Preliminary Objection must be denied. CONCLUSIONS OF LAW 1. Commission regulations permit the filing of preliminary objections. 52 Pa.Code § 5.101(a).
impacted by utility acquisitions subject to the Commission’s jurisdiction. Answer at 3. That contention is fact-specific, and NCWA then goes on to state: The Authority’s interest in this proceeding stems from the Authority’s overlapping service territory with Suburbia. The Authority’s service territory covers all of North Coventry Township and portions of East Coventry Township. Because the Suburbia system is located wholly within North Coventry Township, the Authority’s service territory inevitably overlaps with that of Suburbia, which differentiates the Authority’s interest in the subject matter of this proceeding from the interests of the parties in the cases relied upon by the Joint Applicants. Answer at 4. In both NCWA’s Protest and in its Answer, NCWA includes documents as “Attachment A” in each respective filing, including a purported system map with its Protest and an Asset Purchase Agreement with its Answer. Neither of these documents are of any value without the benefit of testimony to explain what they are, or whether they do establish an “overlap.” However, Aqua produced nothing of probative value that would contradict the assertion that the service territories overlap. That being said, any doubt with respect to the factual averments in a preliminary objection must be resolved in favor of the non-moving party by refusing to sustain the preliminary objections. Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth. 2002) (Emphasis added). In this case, the “doubt” is the extent of the area served by Superior/Suburbia and whether that area does, in fact, overlap with the service area of NCWA. Given this unresolved factual issue, the Preliminary Objection must be denied. CONCLUSIONS OF LAW 1. Commission regulations permit the filing of preliminary objections. 52 Pa.Code § 5.101(a).
1366709.docx