IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Delaware :

:

:

v. : No. 1347 C.D. 2022

:

Delaware County Regional Water : Submitted: May 7, 2024

Quality Control Authority, :

and Delcora Rate Stabilization Fund :

Trust Agreement b/t the Delaware :

County Regional Water :

Quality Control Authority as settlor :

and Univest Bank and Trust Co. as :

trustee :

:

 v. :

:

Darby Creek Joint Authority, Southern :

Delaware County Authority, and Aqua :

Pennsylvania Wastewater, Inc. :

:

:

Appeal of: County of Delaware :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: June 4, 2024

Appellant the County of Delaware (County) appeals from the September 

13, 2022 order (Remand Order) entered by the Delaware County Court of Common 

Pleas (trial court) after remand from this Court’s March 3, 2022 decision in County of 

Delaware v. Delaware County Regional Water Quality Control Authority, 272 A.3d 

567 (Pa. Cmwlth. 2022) (DELCORA I). In DELCORA I, we reversed the trial court’s 

December 28, 2020 order, which, in effect, precluded the County from dissolving the 

Delaware County Regional Water Quality Control Authority (DELCORA) and 
2

transferring its assets to the County. The County now appeals from the Remand Order, 

essentially arguing that the trial court exceeded its authority on remand in multiple 

respects. Upon review, we affirm in part, and vacate in part. 

I. BACKGROUND AND PROCEDURAL POSTURE

This Court has summarized, on three prior occasions and in various 

procedural postures, the relevant facts underlying this complex dispute. See 

DELCORA I, 272 A.3d at 569-75; County of Delaware v. Pennsylvania Public Utility 

Commission (Pa. Cmwlth., No. 455 C.D. 2021, filed September 12, 2022), slip op. at 

2-8 (DELCORA II); County of Delaware v. Delaware County Regional Water Quality 

Control Authority (Pa. Cmwlth., No. 1025 C.D. 2022, filed April 4, 2023), slip op. at 

2-6 (DELCORA III). We will not do so again here other than to extract the facts 

pertinent to this appeal.

In September 2019, DELCORA entered into an asset purchase agreement 

(APA) with Aqua Pennsylvania Wastewater, Inc. (Aqua) to accomplish Aqua’s 

purchase of DELCORA’s wastewater management system.1 DELCORA entered into 

1 DELCORA entered into the APA pursuant to Section 5607(d)(4) and (13) of the 

Municipality Authorities Act (MAA), 53 Pa.C.S. § 5607(d)(4), (13), which provides as follows:

(d) Powers.--Every authority may exercise all powers necessary or 

convenient for the carrying out of the purposes set forth in this section, 

including, but without limiting the generality of the foregoing, the 

following rights and powers:

. . . . 

(4) To acquire, purchase, hold, lease as lessee and use any franchise, 

property, real, personal or mixed, tangible or intangible, or any interest 

therein necessary or desirable for carrying out the purposes of the 

authority, and to sell, lease as lessor, transfer and dispose of any 

property or interest therein at any time acquired by it.

. . . . 

(13) To make contracts of every name and nature and to execute all 

instruments necessary or convenient for the carrying on of its business. 
3

a separate trust agreement (Trust) with itself as the trust settlor and Univest Bank and 

Trust Co. as trustee (Trustee), for the benefit of DELCORA’s customers. The Trust is 

to be funded primarily by the proceeds of the sale of DELCORA’s assets to Aqua, 

which is identified as a third-party beneficiary in the Trust. On March 3, 2020, Aqua 

filed an application (Application) with the Pennsylvania Public Utility Commission 

(PUC) seeking approval of the APA pursuant to Sections 1102, 1329, and 507 of the 

Public Utility Code, 66 Pa.C.S. §§ 1102, 1329, and 507 (PUC Action). We described 

the PUC Action in DELCORA III: 

[ ] Aqua’s Application . . . seek[s] [PUC] approval to acquire 

DELCORA’s wastewater assets for $276.5 million. In its 

Application, Aqua requested the issuance of an Order and 

Certificates of Public Convenience for the approval of: (1) 

the acquisition by Aqua of DELCORA’s wastewater system 

assets situated within all or part of 49 municipalities within 

portions of Chester and Delaware Counties; (2) the right of 

Aqua to begin to offer, render, furnish and supply wastewater 

service to the public in portions of Delaware and Chester 

Counties; and (3) the assignment of 163 DELCORA 

contracts to Aqua.

. . . . 

On May 18, 2020, [the County] filed a petition to intervene 

in the [PUC Action], claiming that Aqua’s application was 

not in the public interest and that [the Trust] and related 

agreements associated with the Application violate 

applicable law. 

DELCORA II, slip op. at 2-3. 

On May 14, 2020, the County filed a complaint against DELCORA in the 

trial court challenging the creation of the Trust and the transfer of DELCORA’s assets 

to the Trust. On June 3, 2020, the County passed Ordinance No. 2020-4 (Ordinance), 

which ordered DELCORA to “terminate its operation[s], wind up its affairs, satisfy 

outstanding debts, [ ] take all actions necessary to remove any impediments to its 
4

termination, and refrain from taking any action or expending any funds inconsistent 

with [ ] termination of its affairs.” DELCORA I, 272 A.3d at 572.2 On June 15, 2020, 

the County filed an Amended Complaint against DELCORA, the Trust, and the 

Trustee, in which it sought declaratory, injunctive, and mandamus relief and asserted

the following claims: (1) DELCORA violated its articles of incorporation by adopting

the funding mechanism for the Trust (Count I); (2) DELCORA violated Section 5603 

of the MAA, 53 Pa.C.S. § 5603, by creating the Trust (Count II); (3) DELCORA 

violated Section 5612 of the MAA, 53 Pa.C.S. § 5612, by creating the Trust and 

transferring its assets to the Trust (Count III); (4) DELCORA violated Sections 7732

and 7734 of the Uniform Trust Act (UTA), 20 Pa.C.S. §§ 7732, 7734, by creating the 

Trust (Count IV); and (5) a request for writ of mandamus compelling DELCORA’s 

compliance with the Ordinance and termination of its operations (Count V). 

DELCORA, Aqua, and two additional intervening parties (Darby Creek 

Joint Authority (DCJA) and Southern Delaware County Authority (SDCA)) answered 

the Amended Complaint and asserted counterclaims seeking declaratory and injunctive 

relief regarding the APA, the Ordinance, and the Trust. Specifically, DELCORA 

asserted counterclaims requesting declarations that (1) the Trust does not violate its 

2 The County enacted the Ordinance pursuant to Section 5622(a) of the MAA, which provides 

as follows: 

(a) Project.--If a project established under this chapter by a board 

appointed by a municipality is of a character which the 

municipality has power to establish, maintain or operate and the 

municipality desires to acquire the project, it may by appropriate 

resolution or ordinance adopted by the proper authorities signify its 

desire to do so, and the authorities shall convey by appropriate 

instrument the project to the municipality upon the assumption by 

the municipality of all the obligations incurred by the authorities 

with respect to that project.

53 Pa.C.S. § 5622(a). 
5

articles of incorporation, the MAA, the UTA, or public policy (Count I); (2) the 

Ordinance violates the MAA (Count II); and (3) (i) the APA “is a valid, enforceable 

agreement that must be formally assumed and honored by the County before it can 

terminate DELCORA, and (ii) the transaction contemplated by the APA must proceed 

without interference from the County, subject to approval by the [PUC]” (Count III). 

(Reproduced Record (R.R.) at 1293a-94a.) Aqua likewise asserted counterclaims (1) 

requesting a declaration that the APA is valid, binding, and enforceable and must close 

prior to DELCORA’s termination (Count I); and (2) alleging that the County tortiously 

interfered with Aqua’s contractual relationship with DELCORA (Count II). SDCA 

and DCJA also asserted declaratory judgment and tortious interference counterclaims.3 

Following a bench trial, the trial court entered an order that, in pertinent 

part, found as follows: (1) the APA is a legal and enforceable contract that does not 

violate the MAA or public policy and is authorized by the MAA, subject to the PUC’s 

approval; (2) the Ordinance interferes with and “implodes” DELCORA’s contractual 

obligations; (3) the County must afford “full faith and credit” to the APA; (4) the 

County generally has the authority to terminate DELCORA, but may not interfere or 

refuse to comply with the APA in doing so; (5) the County may not terminate 

DELCORA prior to closing on the APA or otherwise interfere with DELCORA’s 

contractual relationship with Aqua; (6) all parties must cooperate to comply with 

winding up and dissolution of DELCORA, but only after, and without any interference 

with, the consummation of the sale contemplated by the APA; and (7) the Trust is valid 

and does not violate the MAA or UTA. (Trial Ct. Order, 12/28/20, ¶¶ 4, 6, 10, 16-18, 

31-33; R.R. at 3223a-25a, 3227a.) In addition to affording other relief, the trial court 

specifically entered a declaratory judgment that the APA is valid, binding, and 

3 The tortious interference counterclaims later were withdrawn. (R.R. at 3218a, 3220a.) 
6

enforceable under the MAA, subject to the approval of the PUC, and that termination 

of DELCORA may not occur prior to closing on the APA. Id. ¶ 34(c); R.R. at 3227a28a. See also id. ¶ 37; R.R. at 3229a (“This [o]rder is not intend[ed] to interfere with 

the authority and jurisdiction of the [PUC] [in the PUC Action].”). 

The County appealed to this Court, arguing, inter alia, that the trial court 

erred in (1) not issuing a writ of mandamus requiring DELCORA to comply with the 

Ordinance, (2) assuming jurisdiction to decide the validity of the APA where exclusive 

jurisdiction over public utility contracts is vested in the PUC; and (3) determining that 

the Trust was valid and enforceable. DELCORA I, 272 A.3d at 573. In its Pennsylvania 

Rule of Appellate Procedure (Pa.R.A.P.) 1925(a) opinion, the trial court explained that 

it “found that [S]ection 5607 of the MAA permits DELCORA to enter into [the APA][]

[and] also [found] that the [APA’s] terms were still subject to the approval of the PUC.” 

Id. at 574 (original bracketing removed). 

In DELCORA I, we described the “major issue” in the appeal as whether 

the County, pursuant to Section 5622(a) of the MAA, may exercise its unilateral 

authority to dissolve and/or obtain DELCORA’s assets after DELCORA already had 

entered into the APA pursuant to Section 5607(d)(4) and (13) of the MAA. DELCORA 

I, 272 A.3d at 569.

4

 We further noted the unique circumstances in which the issue was 

presented, namely, where (1) the terms of the APA had not been fully performed and 

were subject to a condition subsequent, and (2) the County disputedly did not assume,

and could not fulfill, DELCORA’s obligations under the APA. Id. We ultimately 

4

In In re: Chester Water Authority Trust, 263 A.3d 689 (Pa. Cmwlth. 2021) (en banc), we 

reconfirmed that a municipality may, under Section 5622(a) of the MAA, unilaterally dissolve an 

authority it had created and/or obtain its assets. Although the Pennsylvania Supreme Court 

subsequently granted allowance of appeal, the proceedings before the Supreme Court are stayed due 

to the City of Chester’s suggestion of bankruptcy. See In re: Chester Water Authority Trust (Pa., No. 

46 MAP 2022, filed November 17, 2022). 
7

reversed the trial court’s order in its entirety, concluding that “the County retains its 

statutory authority under [S]ection 5622(a) of the MAA, notwithstanding DELCORA’s 

exercise of power under [S]ection 5607(d)(4) and (13) of the MAA.” Id.

Because it is pertinent to the issues in this appeal, we quote at length our 

rationale in DELCORA I: 

[W]e conclude that the Ordinance is valid and enforceable to 

the extent it directs the termination/dissolution of 

DELCORA and dictates that, after termination/dissolution is 

underway, DELCORA must engage in conduct necessary to 

effectuate the transfer of its assets and the assumption of its 

liabilities/obligations by the County.

Citing its authority to enter into the APA with Aqua under 

[S]ection 5607(d)(4) and (13) of the MAA and claiming that 

the APA is a valid and enforceable contract, DELCORA 

questions whether the County could perform the obligations 

imposed by the APA. Likewise, Aqua, referring to the trial 

court’s findings and determinations on the issue, asserts that 

the County, in the event it would assume the obligation of 

the APA, would breach the terms and conditions of the APA. 

Both DELCORA and Aqua contend that the County’s 

inability to satisfactorily fulfill the obligation of the APA 

serves as an “impediment”—or a bar—to the County’s 

exercise of power under [S]ection 5622(a) of the MAA.

. . . . 

We find our reasoning in In re: Chester Water Authority 

Trust equally applicable to the situation where an authority 

has expressed its desire to sell its assets, and has executed a 

contract to that effect, at least where, as here, the contract has 

not been fully performed. Reading [S]ection 5622(a) in 

tandem with [S]ection 5607(d)(4) and (13), it is apparent that 

[S]ection 5622(a) of the MAA presupposes that an authority 

has the power to enter contractual obligations, even with 

respect to a transfer of its assets, and expressly accounts for 

the scenario where the authority has already entered a valid 

and binding contract. That is, based on the plain language of 
8

[S]ection 5622(a) of the MAA, a municipality can “assume” 

all of the “obligations incurred” by an authority, including 

those in a contract to sell its assets, by obtaining an 

authority’s project and legal title to the assets of the project. 

Otherwise, if an authority could override the power granted 

to a municipality in [S]ection 5622(a) by simply incurring 

contractual obligations, then the last clause of [S]ection 

5622(a) would be rendered nugatory. . . . [W]e conclude that 

an authority may utilize its power to contract and sell its 

assets to another entity; however, a municipality may invoke 

its power under [S]ection 5622(a) to demand that the 

authority terminate and/or convey its assets to the 

municipality at any time prior to the complete performance 

of that contract.

Moreover, a municipality’s ability to perform the contractual 

obligations that it acquires from an authority is not an 

“impediment” recognized by the law where, as here, the 

authority has not obtained (and a municipality will thus not 

assume) any continuing “debt” or obligation that an authority 

has to repay, in what is basically financial installments, 

outstanding loans, or other forms of an immediate or 

continuing repayment obligation. That said, it is important to 

note that the County, in its demand that DELCORA 

terminate its operations and transfer its assets to the County, 

effectively places the County in a situation where it would 

receive a “contractual assignment” from DELCORA as a 

matter of statutory law. Consequently, the County would, 

without question or condition, be bound by the terms and 

conditions of the APA, just as if it were DELCORA itself in 

the sense that it would essentially become a “party” to a 

contract. As such, all of the concerns that the trial court 

enunciated regarding the County’s inability to fulfill the 

APA’s contractual obligations is completely irrelevant and 

has no place in the statutory analysis of [S]ection 5622(a) 

vis-à-vis [S]ection 5607(d)(4) and (13) and the issue of 

whether the County retains its authority pursuant to [S]ection 

5622(a) despite the APA and its specific obligations. This is 

because the County, irrespective of whether it can live up to 

the contractual promises made in the APA, will have no 
9

choice but to abide by and fully perform its obligations or 

else be potentially subjected to a breach of contract suit by 

Aqua. 

In sum, [S]ection 5622(a) provides the County with the 

authority to enact the Ordinance, and the Ordinance complies 

with the requisites necessary for the County to demand the 

termination of DELCORA and the conveyance of 

DELCORA’s assets and obligations to the County.

[W]e conclude that the trial court erred in denying the 

County’s request for a writ of mandamus and granting 

injunctive relief in favor of DELCORA and Aqua. 

Accordingly, we reverse the trial court’s order and remand to 

the trial court for the entry of an order consistent with this 

opinion. Due to the basis of and grounds for our disposition, 

we need not address the County’s remaining arguments. 

DELCORA I, 272 A.3d at 578-81 (internal citations omitted). 

No parties petitioned the Pennsylvania Supreme Court for allowance of 

appeal from DELCORA I. On remand, the trial court directed the parties to submit 

proposed orders and heard argument on September 7, 2022. On September 13, 2022, 

the trial court entered the Remand Order which, in relevant part: 

(1) Denied the requests of DELCORA, SDCA, and DCJA 

for a declaratory judgment that the Ordinance is invalid and 

unenforceable. (Remand Order, ¶¶ 4, 7); 

(2) Granted Aqua’s request in Count I of its Counterclaim 

for a declaratory judgment that the APA is a “valid, binding 

and enforceable contract, authorized by Subsections 

5607(d)(4) and [](13) of the [MAA], 53 [Pa.C.S. §§

5607(d)(4), (13)], subject to approval by the [PUC]” and 

“consistent with [the trial court’s] prior determination as set 

forth in the December 28, 2020 order . . . and consistent with 

the Commonwealth Court’s March 3, 2022 Order that is final 

and unappealable.” Id. ¶ 5; 
10

(3) Denied Aqua’s request in Count I of its counterclaim 

for a declaratory judgment that the APA must close prior to 

DELCORA’s dissolution. Id. ¶ 6; 

(4) Granted the County’s request in Count V of the 

Amended Complaint for a writ of mandamus directing that 

DELCORA comply with the Ordinance and effectuate its 

termination, “subject to the terms and findings of this 

[Remand] Order and the decision of the Commonwealth 

Court of March [3], 2022.” Id. ¶ 9; and 

(5) Denied, as moot, Counts I and II of DELCORA’s 

counterclaim and the County’s Trust-related claims in 

Counts I-IV of the Amended Complaint. Id. ¶ 10.5

(Remand Order, 9/13/2022; R.R. at 3409a-12a.) The trial court concluded by noting 

that this Court’s “focused holding [in DELCORA I] is that winding down of 

DELCORA is permissible, the [Ordinance] is enforceable, and the [APA] remains a 

valid and enforceable contract subject to the [PUC’s] review and regulations,” and that 

“the [PUC] has jurisdiction to assess the ultimate transaction . . . .” Id. ¶¶ 11-12.

6

 

5 The trial court did not deny or dismiss as moot Count III of DELCORA’s counterclaim, 

which requested a declaratory judgment that the APA was valid and enforceable, with associated

injunctive relief. Aqua requested the same relief in Count I of its counterclaim, which the trial court 

expressly granted. (Remand Order, ¶ 5.)

 

6 On January 18, 2023, DELCORA filed a separate declaratory judgment action against both 

the County and Aqua in the trial court, seeking determinations as to whether the Ordinance precludes 

DELCORA from proceeding under the APA and whether DELCORA had the authority to create, and 

may remain in existence to administer, the Trust (2023 DELCORA Action). See In re: Application 

of Aqua Pennsylvania Wastewater, Inc. (Pa. P.U.C., No. A-2019-3015173, filed February 6, 2023), 

slip op. at 4. The trial court stayed the 2023 DELCORA Action pending our disposition of the 

County’s appeal here. See id., Status Reports filed February 5, 2024. On February 6, 2023, 

Administrative Law Judge F. Joseph Brady stayed the PUC Action until final, unappealable orders 

are entered on pending matters in the City of Chester’s bankruptcy proceedings and in the 2023 

DELCORA Action. See id., slip op. at 10.

 
11

The County now appeals to this Court, essentially arguing that the trial 

court’s Remand Order both exceeds the scope of our remand in DELCORA I and usurps 

the PUC’s exclusive jurisdiction over public utility contracts.7

 

II. QUESTIONS PRESENTED

The County presents four interrelated issues for our disposition, which we 

can fairly condense and summarize as follows: (1) whether the Remand Order is

outside the scope of the remand in DELCORA I; (2) whether the trial court erred in 

declaring that the APA was a valid and enforceable agreement where the PUC has the 

exclusive jurisdiction over such questions; and (3) whether the trial court erred in 

dismissing as moot the County’s Trust-related claims.

III. DISCUSSION

A. The Scope of DELCORA I

The County first argues that the trial court’s declaration in the Remand 

Order that the APA is a valid and enforceable agreement subject to approval by the 

PUC exceeded the scope of the remand from our decision in DELCORA I. We agree, 

in part. 

Pa.R.A.P. 2591(a) provides, in pertinent part, that “[o]n remand of the 

record[,] the court . . . below shall proceed in accordance with the judgment or other 

order of the appellate court[.]” Pa.R.A.P. 2591; see also Section 706 of the Judicial 

7

In DELCORA III, we explained the complex route through which the County has prosecuted 

this appeal. See DELCORA III, slip op. at 5-8. Those details are not material to our disposition of 

the County’s issues here, other than to highlight that (1) we concluded in DELCORA III that the 

Remand Order was a final order disposing of all claims against all parties; and (2) we properly are

deciding the County’s issues at this case number and not the related, and now quashed, appeal at No. 

1205 C.D. 2022. Id. at 10-16. The trial court filed a Pa.R.A.P. 1925(a) opinion on December 8, 2022,

in which it opined that the Remand Order is consistent with the proposed orders submitted by the 

parties and our decision in DELCORA I. (R.R. at 3488a-89a.) 
12

Code, 42 Pa.C.S. § 706 (“An appellate court may affirm [or] vacate . . . any order 

brought before it for review, and may remand the matter and . . . require the entry of 

such appropriate order . . . as may be just under the circumstances.”). We have 

explained a lower court’s responsibilities on remand as follows:

It has long been the law in Pennsylvania that following 

remand, a lower court is permitted to proceed only in 

accordance with the remand order. Commonwealth v. 

Sepulveda, [144 A.3d 1270, 1280 n.19 (Pa. 2016)]. In Levy 

v. Senate of Pennsylvania, 94 A.3d 436 (Pa. Cmwlth. 2014), 

appeal denied,[ ]106 A.3d 727 (Pa. 2014), which the 

Supreme Court cited with approval in Sepulveda, this Court 

explained: “Where a case is remanded for a specific and 

limited purpose, ‘issues not encompassed within the remand 

order’ may not be decided on remand. A remand does not 

permit a litigant a ‘proverbial second bite at the apple.’” 

Levy, 94 A.3d at 442 (quoting [Independent School District 

Consisting of the Borough of Wheatland], 912 A.2d 903, 908 

(Pa. Cmwlth. 2006)).

Marshall v. Commonwealth, 197 A.3d 294, 306 (Pa. Cmwlth. 2018), aff’d, 214 A.3d 

1239 (Pa. 2019); see also Commonwealth v. Tick, Inc., 246 A.2d 424, 426 (Pa. 1968) 

(trial court’s duty on remand is to “comply strictly with our mandate[,] and such 

compliance require[s] the court to proceed in a manner consistent with the views 

expressed in our opinion”); Commonwealth v. Null, 186 A.3d 424, 429 (Pa. Cmwlth. 

2018) (“[F]ollowing remand, the trial court below must comply strictly with this 

Court’s mandate and has no power to modify, alter, amend, set aside, or in any measure 

disturb or depart from this Court’s decision as to any matter decided on appeal.”).

The Pennsylvania Supreme Court has further explained:

[A]lthough Pa.R.A.P. 2591 requires the court or other 

government unit on remand to “proceed in accordance with 

the judgment or other order of the appellate court,” it does 

not require the court or government unit to utilize any 
13

specific mode of compliance with a general remand order, 

such as a trial or evidentiary hearing. Consequently, when 

an appellate court remands for “further proceedings[,]” there 

is no “one size fits all” talismanic definition for those terms 

which is applicable to all cases and situations. It is axiomatic 

that the facts and procedural history of each case as it 

developed in the lower court or administrative agency will 

be different when considered by an appellate tribunal, and, 

thus, if that tribunal determines that a remand for further 

proceedings is warranted, the nature of those proceedings 

will necessarily vary depending on the specific 

circumstances presented by each individual case. 

Thus, every remand order directing that further proceedings 

be conducted must necessarily be examined in conjunction 

with the opinion of the appellate tribunal and the particular 

facts, circumstances, and procedural history of the case in 

order to determine what the lower court or tribunal is 

required to do upon return of the case to it. It must be 

emphasized that, when a case is returned to a lower court or 

administrative agency with such a directive, those tribunals 

have usually already conducted some fact-finding or legal 

analysis in the case and, accordingly, this acquired 

familiarity with the already developed record allows the 

court or administrative agency considerable discretion to 

choose the specific type of proceedings it will conduct in 

order to fulfill the purposes for which the appellate court has 

ordered remand.

SugarHouse HSP Gaming, L.P. v. Pennsylvania Gaming Control Board, 162 A.3d 353, 

371 (Pa. 2017) (internal citation omitted). 

Here, the County’s Amended Complaint contained four claims asserting 

that DELCORA had violated its articles of incorporation, the MAA, and the UTA by 

creating and funding the Trust. (Amended Complaint, Counts I-IV.) After enacting 

the Ordinance, the County added Count V, which requested a writ of mandamus 

compelling DELCORA to comply with the Ordinance and terminate its operations. Id., 
14

Count V. The County notably did not allege that DELCORA did not have the authority 

to enter into contracts for the sale of its assets pursuant to Section 5607 of the MAA. 

DELCORA and Aqua nevertheless requested in their counterclaims (1) declaratory 

judgments establishing the validity and enforceability of the APA; and (2) injunctive 

relief requiring that the APA close prior to DELCORA’s termination. (Aqua 

Counterclaim, Count I; DELCORA Counterclaim, Count III). In its December 28, 

2020 order, the trial court denied all of the County’s claims, granted Aqua’s and 

DELCORA’s requests for declaratory and injunctive relief regarding the APA, and 

declared the Trust valid. It is clear from the trial court’s order that its rationale for 

denying the County’s claims was centered on its preoccupation with preserving the 

validity and enforceability of the APA and the establishment of the Trust.

On appeal, we considered only two narrow and related issues, namely, 

whether the County validly adopted the Ordinance and whether DELCORA’s entry 

into the yet-unperformed APA under Section 5607 of the MAA precluded enforcement 

of the Ordinance prior to the APA’s closing. We concluded that, “although an authority 

may utilize its power to contract and sell its assets to another entity[,]” a municipality 

nevertheless may “invoke its power under [S]ection 5622(a) to demand that the 

authority terminate or convey its assets to the municipality at any time prior to the 

complete performance of that contract.” DELCORA I, 272 A.3d at 580. We went on 

to note that the specific contractual obligations in the APA and whether the County

assumed and could perform them were issues irrelevant to our statutory analysis. We 

also noted that, if the APA in fact closed, the County presumably would assume certain 

legal obligations thereunder. Id. Any discussion of what the County will or would be 

obligated to do clearly was dicta. See id. at 581 n.11 (“We express no opinion with 

respect to the viability of any potential remedies at law that Aqua and/or DELCORA
15

may have in the event the County assumes the obligations of the APA.”) (emphasis 

added). 

Thus, other than noting that DELCORA has the authority to contract 

under the MAA and exercised that authority to execute the APA, we made no 

conclusions regarding the substantive validity or enforceability of either the APA or 

Trust. Those issues simply did not, because they needed not, factor into our analysis. 

We concluded that the trial court erred both in denying the County’s request for 

mandamus relief and in granting Aqua and DELCORA injunctive relief. We

accordingly reversed the trial court in toto, remanded for the entry of a consistent order, 

and declined to address any other issues raised by the County. Id. at 581. And, because 

none of the parties filed a petition for allowance of appeal from DELCORA I, it is final. 

On remand, the trial court’s authority therefore was limited to entering an 

order granting mandamus relief to the County. Although the trial court ordered that 

relief, it also made broad pronouncements, in part relying on its prior and now-reversed 

December 28, 2020 order, regarding the APA and the County’s obligations thereunder. 

(Remand Order, ¶ 5.) To the extent that the trial court’s Remand Order recognizes

DELCORA’s statutory ability to contract under Section 5607 of the MAA, subject to 

the reviewing jurisdiction of the PUC, it is valid. To the extent that the trial court went 

any further, it erred. 

B. PUC Jurisdiction

The County next argues that the trial court erred in issuing a declaration 

that the APA is valid and enforceable because the PUC has exclusive jurisdiction over 

the validity of public utility contracts. The County also relatedly argues that, because 

the PUC may conclude that the APA is invalid or unenforceable, the trial court erred 

in granting declaratory relief concerning events that may never ultimately occur.
16

We need not address this issue for two reasons. First, because we 

conclude that any pronouncements regarding the validity or enforceability of the APA 

beyond an acknowledgement that such contracts may be executed under Section 5607 

of the MAA were outside the scope of our remand in DELCORA I, we need not 

determine whether they also usurped the jurisdiction of the PUC. Second, although the 

County raised in DELCORA I the issue of whether the trial court improperly assumed 

jurisdiction over the validity of the APA, we declined to address it. The County did 

not appeal our decision, and the issue therefore is, in this appeal, waived.

C. Mootness of the County’s Trust-Related Claims

The County lastly argues that the trial court erred in dismissing as moot 

the County’s Trust-related claims because the Trust remains the intended recipient of 

the proceeds from the APA and this Court in DELCORA I reversed the trial court’s 

determinations that the Trust was valid. We disagree. Because we concluded in 

DELCORA I that the County’s Trust-related claims were immaterial to determining 

whether the Ordinance was valid and could be enforced notwithstanding the existence 

of the APA, we reversed the trial court’s decision on those issues. On remand, the trial 

court rightly determined that they are, in this action, mooted by DELCORA I. 

IV. CONCLUSION

On remand from DELCORA I, the trial court was limited to entering an 

order consistent with our holdings that (1) the County validly enacted the Ordinance, 

and (2) the Ordinance could be enforced in mandamus notwithstanding DELCORA’s 

otherwise valid exercise of its authority under Section 5607 of the MAA to enter into 

contracts for the sale of its assets, at least to the extent that such a contract, here the 

APA, remained unperformed. We affirm the Remand Order to the extent that it grants 

the County mandamus relief, dismisses the County’s Trust-related claims as moot, and 
17

acknowledges DELCORA’s ability under the MAA to execute the APA. To the extent 

that paragraphs 2, 3, 5, 9, and 11 of the Remand Order award any further relief, they 

are vacated. 

________________________________

PATRICIA A. McCULLOUGH, Judge

Judges Covey and Fizzano Cannon did not participate in the decision of this case. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Delaware :

:

v. : No. 1347 C.D. 2022

:

Delaware County Regional Water :

Quality Control Authority, :

and Delcora Rate Stabilization Fund :

Trust Agreement b/t the Delaware :

County Regional Water :

Quality Control Authority as settlor :

and Univest Bank and Trust Co. as :

trustee :

:

 v. :

:

Darby Creek Joint Authority, Southern :

Delaware County Authority, and Aqua :

Pennsylvania Wastewater, Inc., :

:

Appeal of: County of Delaware :

ORDER

AND NOW, this 4

th day of June, 2024, the September 13, 2022 order 

of the Court of Common Pleas of Delaware County is AFFIRMED in part, and 

VACATED in part, as set forth in the foregoing Memorandum Opinion.

________________________________

PATRICIA A. McCULLOUGH, Judge