IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bonarrigo Enterprises, Inc., :

Appellant :

:

v. : No. 928 C.D. 2017

: Argued: February 6, 2018

Highridge Water Authority :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: February 27, 2018

Bonarrigo Enterprises, Inc. (BEI) appeals from the order of the Court of 

Common Pleas of Indiana County (trial court) denying its motion for post-trial relief

from an order entered on April 10, 2017 (2017 Order), because the trial court found 

that despite representations to the contrary, Highridge Water Authority (Authority) 

elected not to provide water service to BEI pursuant to a previous order issued by the 

trial court on August 26, 2015.

I.

In 2004, Russell J. Bonarrigo, II (Bonarrigo) purchased 3.71 acres 

located at 64 Rocky Road, Burrell Township, Pennsylvania (Property) on which he 

wanted to operate a recreational vehicle park. He installed an eight-inch service line

as well as sewage and electric on the Property. Although the Lower Indiana County 
2

Municipal Authority originally provided water service to the Property, in 2008, 

Bonarrigo granted an easement to the Authority for that service line after which the 

Authority took over the system.

By deed dated April 23, 2012, Bonarrigo transferred the Property to BEI, 

which is the Property’s current owner. BEI submitted an application and payment to 

the Authority for establishing water service to the Property, and in late 2012, the 

Authority made one tap-in connection on the Property and initiated water service. 

BEI then began operating a recreational vehicle (RV) campground for up to 18

campers, depending on the season. After the water passes through the Authority’s 

meter, BEI then transports water to each RV through individual hoses connecting to 

the service line.

While the Property’s service line was above ground when the Authority 

began providing water service, sometime before the winter of 2012-13, BEI buried 

the Property’s water, sewage and electric lines.

Roughly one-year-and-half years later, in the summer of 2014, the 

Authority terminated BEI’s water service. Before it would reinstate service, it 

demanded that each of the 18 RV pads have an individual tap-in connection because

servicing those vehicles through a single tap-in connection violated its Rules and 

Regulations. Then, on February 2, 2015, the Authority filed for a municipal lien 

against the Property for $10,363 alleging that BEI defaulted on payment of tap-in fees 

and other costs.
3

The Authority then filed an action requesting that the trial court require 

BEI to connect all RVs on its Property to the public water system immediately and to 

cease use of the Property for such purpose until that occurred. In response, BEI filed 

a complaint seeking declaratory judgment that the Authority violated its own 

regulations by imposing multiple tap-in fees on the Property and an order directing

the Authority to provide water service to the Property through the existing tap, and to

strike the municipal liens.

Following a hearing, testimony and various filings by both parties, the 

trial court entered an order on August 26, 2015 (2015 Order), holding that the 

Authority was not permitted to charge an individual tap-in fee for each recreational 

vehicle pad and found the $10,363 municipal lien was null and void. The trial court 

also held:

[The Authority] has the following two options: [the 

Authority] can require [BEI] to connect to the Highridge 

Water System . . . keeping in mind that a tapping fee cannot 

be charged for each recreational vehicle. Or, Highridge can 

decide not to provide water service to the recreational 

vehicles on the [Property], keeping in mind that Highridge 

cannot prevent Bonarrigo from providing another water 

source for the recreational vehicles on the [Property].

(Trial Court Order dated August 26, 2015.) Neither party appealed that order.

II.

Following the 2015 Order, BEI made a written request for the Authority 

to advise as to the steps to restore water service to the Property. In response, the 
4

Authority provided BEI with an Application of Service. BEI submitted that 

application, circling the option to “turn on” service – as opposed to the other option 

of “new tap.” (Reproduced Record (R.R.) at 387a.)

In response, the Authority sent a letter dated May 5, 2016, providing:

Enclosed are the conditions for receiving water now 

that we have received your application for service.

1. Authority rules and regulations require:

a) That the entire layout throughout the site be 

inspected prior to being backfilled;

b) Each unit served shall have its own curb stop and 

check valve;

c) Blowoffs must be installed at the ends of the 

“private water system” being built;

2. The maximum number of units (15) may not be 

exceeded unless written permission is provided by the 

Authority.

3. The minimum monthly water bill for fifteen units is 

$239.80 and includes 22,000 gallons. Water usage in 

excess of this amount shall be billed at $8.40 per thousand 

gallons.

There is also the issue of your past due bill. Because 

a mandatory connection notice exists for Burrell Township, 

and you had not made the necessary arrangements to legally

connect, a monthly bill was assessed which now totals 

$603.76. This must also be satisfied prior to water service 

being rendered.

(R.R. at 306a) (emphasis added).
5

Because BEI refused to dig up all of the Property’s service lines so that 

they could be visually inspected, the Authority denied water service to the Property.

Notwithstanding, the Authority continued to impose monthly “water” and service 

charges totaling $2,633.04. (R.R. at 305a.)

III.

In August 2016, BEI filed a three-count complaint for declaratory 

judgment. Count I contends that the Authority’s demand to inspect the entire 

premises is not permitted by its Rules and Regulations and is unlawful and unduly 

burdensome. Count II contends that the Authority’s ongoing billing practices were

improper because no service was being provided to the Property. Count III sought an 

order compelling the Authority to provide water to the Property on the basis that it 

was not applying its Rules and Regulations uniformly.

In its Answer, the Authority denied any non-uniform and/or unlawful 

application of its Rules and Regulations and as it relates to Count II, “denied that the 

Authority refused to provide water service, as the Authority merely requires [BEI] to 

abide by its Rules and Regulations in order to obtain water, which [BEI] has failed 

and refused to do.” (R.R. at 60a.) In its prayer for relief, the Authority requested the 

trial court to “permit the Authority to inspect the waterlines on [the Property], 

including the individual service lines, permit the Authority to charge for water 

services provided to [BEI,] and to deny the request to mandate the Authority to 

supply water to the [Property] until [BEI] comes into compliance with the Rules and 

Regulations of the Authority . . . .” (R.R. at 62a.)
6

IV.

A.

At the February 13, 2017 bench trial, BEI presented the testimonies of 

Bonarrigo and Mark Olechovski (Olechovski), a BEI employee for the last 26 years,

to describe the Property’s service line as well as how and why it was buried. The 

testimony can be summarized as follows. In 2007, Olechovski installed an eight-inch 

service line with a backflow preventer on the meter set.

1 While the service line was 

originally above ground, after the Authority began providing service to the Property 

in 2012, the waterline as well as other utility lines to service each RV pad were 

buried below the frost line. Water is now provided to each RV through use of a hose 

that connects to the service line. Until July 2014, the Authority continued providing 

service to the Property even after the service line was buried.

Regarding its claim that the Authority was enforcing its Rules and 

Regulations in a non-uniform manner, BEI presented the testimony of Bernard David 

Myers (Myers), the owner of a five-acre trailer park in Westmoreland County. He 

testified that his property contains 12 trailer pads that receive water service through 

one Authority tap-in connection. Although the Authority had to relocate that tap-in 

connection, it has never required any further inspection of the buried service line on 

that property. He testified, though, that the single connection was installed prior to 

his acquisition of the property.

 

1 Although there was no testimony as to the actual length of the Property’s waterline, BEI 

submitted into evidence a Water & Sanitary Sewer Plan (Plan) for the proposed development of 

approximately 16 multi-bedroom apartment buildings that would surround the Property and use its 

waterline. (See R.R. at 313a.) While the Plan does not include the exact length of the waterline, we 

note that if read to scale, that it would be somewhere between 450 to 500 feet in length.
7

Also regarding the disparate treatment issue, BEI presented the 

testimony of Gary Clawson (Clawson), a general contractor who has done work on 

approximately 30 properties serviced by the Authority. He testified that one of those 

properties was a 300-acre property in Westmoreland County (Dolan Property), on 

which there was a residence and three outbuildings. In 2015, he dug and built a

9,000-foot connection to the main residence and requested the Authority to come and 

inspect it before he buried the line. He testified that the Authority did not come to 

inspect until the next day, when approximately a quarter of the 9,000-foot line was 

already buried. While the Authority originally told him that he would need to dig up 

the line, to date, the Authority has never required those buried lines be excavated or 

inspected.

In response, George Edward Sulkosky, Jr. (Sulkosky), the Executive 

Director of the Authority since its foundation, testified. Regarding the continuous 

billing of the Property, Sulkosky testified that the Property’s water and service 

charges are based on a minimum of 11 RV units. He further explained that if BEI 

desired to discontinue those charges, it could request that the meter be pulled.

Regarding the alleged non-uniform application of the Authority’s Rules 

and Regulations, Sulkosky explained that the Authority provided service to the Dolan 

Property without first inspecting the entire service line because those owners signed a 

supplemental application and/or agreement stating that they would be responsible for 

any detrimental effects to the Authority’s water system if there is a leak, which was 

then recorded with the deed. He also explained that the Authority did not require an 
8

inspection of Myers’ buried service line because, unlike BEI’s service line, it was 

constructed and buried well before the Authority serviced that property.

Michael Caugherty (Caugherty), the Vice Chairman of the Authority, 

testified that Section 5.04 of the Authority’s Rules and Regulations2 provide that the 

Authority must be notified prior to backfilling any trench in which a service line is 

placed so that it can be inspected. While BEI requested that the Authority’s Board of 

Directors (Board) waive or modify that regulation, the Board voted six to one that it 

wanted the service line uncovered for inspection.3 Caugherty explained that if BEI 

 

2 Section 5.04 of both the 1991 and 2015 Highridge Water Authority Rules and Regulations, 

provides:

When the installation of the Customer Facilities is completed, the 

Authority shall be notified, prior to any backfilling of the trench, in 

order that the installation be inspected and improved in the open 

trench. No water service will be supplied through an installation 

which has not been inspected and approved in the open trench. This 

requirement of approval is applicable to all new installations and to 

repairs made to any existing installation.

(R.R. at 327a, 362a.)

3 As pertinent, the minutes for the Board’s decision provides:

[BEI] asked the Board to reconsider its demand that the pipelines be 

inspected [in] their entirety suggesting that maybe uncovering several 

spots within the park system could suffice.

[The Authority’s] request for curb stops and backflow preventers for 

each unit will be honored as will its requirement that blow-off valves 

be installed at each end of the park’s water system.

[BEI] asked if [the Authority’s] minimum monthly fee for eleven 

units be amended to five in exchange for his promise to keep the park 

open throughout the year.

(Footnote continued on next page...)
9

complied with the Authority’s Rules and Regulations, it would supply water to the 

Property.

The Authority also presented the testimony of Calvin Gindlesperger

(Gindlesperger), who is the Authority’s Operations Manager. He testified that 

Section 5.04 of the Authority’s Rules and Regulations is a typical regulation that is 

necessary to make sure that the service lines are the correct depth and the correct 

connections are used if there is coupling, and to ensure the quality of water as well as 

water pressure. While he was not involved with BEI’s application for water for the 

Property, he did inspect the Property on one occasion. During that inspection, he 

observed hoses connecting the RVs to the Authority’s water source, which is not an 

uncommon practice. While Gindlesperger discussed certain risks of contamination, 

on cross-examination, it was clarified:

[Counsel:] Mr. Gindlesperger, just a couple things because 

I’m a little confused. You were talking about the potential 

for contamination from the [BEI] line to the [Authority] 

system. I think that’s what you said.

[Gindlesperger:] Contamination into his own service line 

on his property.

[Counsel:] Right. So contamination into [BEI’s] property. 

No contamination into the [Authority] system because you 

have a blackflow preventer on the meter; right?

 

(continued...)

Mr. Sulkosky promised to give the requests consideration.

(R.R. at 308a.)
10

[Gindlesperger:] Correct.

[Counsel:] So nothing that’s in [BEI’s] system can get back 

into [Authority’s system]; correct?

[Gindlesperger:] Correct.

(R.R. at 207a-08a.) He also confirmed that he has never had a problem with a service 

line done by Olechovski on other properties. (R.R. at 209a.)

Finally, the Authority presented the testimony of Edward F. Schmitt

(Schmitt), Vice President of Gibson-Thomson Engineering Company, Inc., who has

been the Authority’s consulting engineer since its inception and was involved with 

the drafting of its 1991 and 2015 Rules and Regulations. Schmitt testified that he had 

the opportunity to visit the Property on one occasion and observed that the RVs were 

connected to the service line via garden hoses. While admitting the backflow 

preventer prevents cross contamination of the Authority system, he testified that it 

was important to have backflow preventers connected to each RV to prevent cross 

contamination with other connections on the Property. He recommended the full 

excavation of the Property’s service line to inspect its depth, material and integrity 

because such factors can increase the risk of leakage, which can affect water pressure 

levels and service throughout the area. Regarding the Authority still sending BEI a 

bill despite discontinuing service, Schmitt explained that this was common practice

and that if BEI desired the service charge to cease, then it could simply request the 

Authority to disconnect the tap-in connection.
11

B.

On April 10, 2017, the trial court issued an order finding that the 

Authority, “through its actions, has demonstrated its settled decision not to provide 

water service to the recreational vehicles on the [Property]. This is permissible under 

the Court’s prior decision.” (R.R. at 460a.) Based on that finding, the trial court

dismissed Count I – regarding the Authority’s right to demand full excavation – and 

Count III – where BEI sought an order compelling the Authority to provide water to 

the Property. It did, however, find in favor of BEI for Count II, determining that the 

Authority’s ongoing billing practices were improper because no service was being 

provided to the Property.

After BEI filed a notice of appeal and a 1925(b) Concise Statement, the 

trial court issued an opinion stating that:

Following this Court’s [2015 Order] . . . [BEI] failed to 

request that [Authority] cho[o]se one of the options set forth 

by the Court, i.e., Bonarrigo failed to request that the Board 

of Directors take a vote to decide whether it would, or 

would not provide water service to [BEI]. [BEI] merely 

submitted [an] application for service, and the Board of

Directors responded with a list of conditions that must be 

met by [BEI]. The Court finds that such a conditional 

response from [Authority] is not a decision to provide 

service. Additionally, the Court notes that some of the

conditions imposed were arguably connected to rules 

promulgated after, and as a result of, the Court’s prior 

Opinion. [The Authority’s] failure to make an affirmative 

decision in regard to the options clearly presented by this 

Court in the prior decision leads the Court to conclude [it]

has effectively chosen to decline to provide water service to 

[BEI].
12

Finally, at oral argument on Plaintiff’s Motion for PostTrial Relief, the Court asked counsel for [Authority] if [it]

was willing to commit to provide water service to [BEI]

upon the terms and conditions that the Court might set if the 

Court granted the Motion for Post -Trial Relief, and decided 

the present issues on the merits; counsel could not make 

that commitment on behalf of the Board of Directors.

Because of the aforementioned findings and factual 

realities, Bonarrigo is essentially asking this Court, and the 

Commonwealth Court, to issue an advisory opinion. [The 

Authority] has chosen to not provide water service to [BEI]

(or in the light most favorable to [BEI], not made a decision 

in regard to the Court’s [2015 Order] . . . therefore, [BEI’s]

request for Declaratory Judgment on the applicability of the 

new rules (i.e.[,] the inspection requirement) and 

discriminatory treatment by [the Authority] is premature 

and entirely academic. A decision on those substantive

issues will, in fact, not resolve this dispute for [BEI]. No 

matter what this Court or the Commonwealth Court’s 

decision on these matters are, [the Authority] has the option 

of simply not providing water service to [BEI] pursuant to 

this Court's [2015 Order].

(R.R. at 520a-522a.)

V.

On appeal, BEI contends that the trial court erred when determining that 

the Authority decided not to provide water service to the Property as allowed by its 

2015 Order. Instead, it states that the Authority had decided to provide water but 

only if a list of conditions were satisfied. It contends that those conditions were 

unreasonable and were enforced in a discriminatory manner.
13

We agree with BEI that the Authority decided to provide service to the 

Property. All evidence and testimony unequivocally demonstrates that the Authority 

chose to service the Property under the condition that BEI comply with its Rules and 

Regulations.

Because the Authority chose to provide service under the condition that

(1) the buried waterline be uncovered to permit inspection, (2) each RV must have its 

own curb stop and check valve, and (3) blowoffs must be installed at the ends of the 

“private water system” being built (R.R. at 306a), the question remains whether those 

conditions are reasonable and whether it was disparately applying its rules and 

regulations to the Property. Having reversed the trial court’s finding that the 

Authority chose not to provide service to the Property, we remand the matter to the 

trial court to determine if, based on the evidence presented, the conditions that the 

Authority imposed are reasonable and whether it is disparately applying its Rules and 

Regulations.

Accordingly, we reverse the trial court’s finding that the Authority chose 

not to provide service to the Property and remand the matter to the trial court to 

determine if, based on the evidence presented, the conditions that the Authority 

imposed are reasonable and whether it is disparately applying its Rules and 

Regulations.

________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bonarrigo Enterprises, Inc., :

Appellant :

:

v. : No. 928 C.D. 2017

:

Highridge Water Authority :

O R D E R

AND NOW, this 27th day of February, 2018, it is hereby ordered that the 

order of the Court of Common Pleas of Indiana County (trial court) in the abovecaptioned matter is reversed, and the matter is remanded to the trial court for further 

proceedings consistent with this opinion.

Jurisdiction relinquished.

________________________________

DAN PELLEGRINI, Senior Judge