IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Center Township, Butler County, :

Petitioner :

:

v. : No. 1459 C.D. 2023

:

Pennsylvania Public Utility :

Commission, :

Respondent :

Summit Township, Butler County, :

Petitioner :

:

v. : No. 1460 C.D. 2023

:

Pennsylvania Public Utility :

Commission, :

Respondent : Submitted: August 9, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: September 26, 2024

In these consolidated appeals, Center Township and Summit Township 

(together, Townships) petition for review of the November 16, 2023 Order of the 

Pennsylvania Public Utility Commission (PUC), which approved the sale of Butler 

Area Sewer Authority’s (BASA) municipal wastewater collection and treatment 

system to Pennsylvania American Water Company (PAWC), a private entity. 

PAWC has filed an Application to Dismiss the Petitions for Review and for 
2

Expedited Consideration (Application to Dismiss).1 BASA, the City of Butler, and 

the Township of Butler (collectively, Butler) have also filed a Motion to Quash the 

Appeals for Lack of Issue Preservation (Motion to Quash).2 In their motions, PAWC 

and Butler contend that the Townships have waived their rights to challenge the 

settlement for the sale of BASA because they failed to timely assert their objections

before the administrative law judge (ALJ) and because they voluntarily abandoned 

their protests filed with the PUC. For the reasons that follow, we grant PAWC’s 

Application to Dismiss, dismiss as moot Butler’s Motion to Quash, and dismiss the 

Townships’ Petitions for Review.

Background

On February 14, 2023, PAWC filed with the PUC an application to acquire 

the assets, property, and rights to BASA’s wastewater collection and treatment 

system (Application) under the Public Utility Code (Code), 66 Pa. C.S. §§ 101-3316. 

PAWC subsequently amended its Application several times during the completion 

review process.

Both Townships, which are located within BASA’s service area, filed Protests 

with the PUC opposing PAWC’s Application on June 30, 2023, asserting that the 

rate increase resulting from the proposed sale would be unconscionable and that a 

certificate of public convenience is neither necessary nor proper for the service, 

accommodation, convenience, or safety of the public. Specifically, in its Protest, 

Center Township averred:

1 By Order dated February 1, 2024, this Court granted PAWC’s request for expedited 

consideration.

2 Both PAWC and Butler have been granted intervenor status in this appeal.
3

6. . . . [I]t is unconscionable to monetize the sale of BASA’s assets for 

the sole use of the City of Butler and Butler Township, to use solely as 

they see fit, by causing a nearly 100% rate increase to all current 

customers of BASA, including Center Township.

. . . .

23. The proposed Agreement of Sale of BASA removes the local 

control and oversight of a [m]unicipal [a]uthority . . . to a for[-]profit 

corporation located in New Jersey, which is also neither in the public 

interest nor for the benefit of any of the users of the BASA system.

. . . .

a. The acquisition of BASA’s assets and contracts by PAWC 

would not provide an affirmative benefit to the public, but rather 

it would be detrimental to the public including the residents, 

industries and businesses located within Center Township . . . .

b. A future fee increase to the users of the BASA system of 

nearly 100%[] is neither reasonable nor lawful, as set forth in the 

Protest of the Office of Consumer Advocate [(OCA)], which is 

adopted by Center Township[][3]. . . .

. . . .

d. It is not consistent with the public convenience and necessity 

for PAWC to acquire the assets of BASA, in violation of [the 

Code.]

e. It is unconscionable to use the sale of BASA’s assets as a 

piggy bank for the sole use of the City of Butler and Butler 

Township.

3 On April 11, 2023, the OCA also filed a Protest with the PUC challenging the proposed 

sale. As discussed infra, the OCA later joined the Settlement Agreement.
4

Reproduced Record (R.R.) at 3757, 3762, 3764-65. Summit Township asserted the 

same averments against the proposed sale in its Protest. See id. at 3782, 3787, 3789-

90.

After extensive negotiations, PAWC entered into a proposed Settlement 

Agreement with Butler, the OCA, the Office of Small Business Advocate (OSBA), 

and the PUC’s Bureau of Investigation and Enforcement (I&E). The key terms of

the Settlement Agreement are set forth in the PUC’s November 16, 2023 Opinion. 

See PUC Op., 11/16/23, at 18-26.

The ALJ held an evidentiary hearing via telephone on July 28, 2023. Before 

the start of the hearing, PAWC advised the ALJ that PAWC, Butler, I&E, the OCA, 

and the OSBA had reached an agreement in principle to settle all issues in the matter. 

The ALJ delayed the start of the hearing to give the Townships an opportunity to 

review the proposed Settlement Agreement. When the hearing convened that same 

day, the Townships’ counsel informed the ALJ and the parties that the Townships 

would not oppose the settlement, and counsel expected to receive authority from 

their governing bodies to join the settlement. R.R. at 3832, 3989. Based on these

representations, the parties mutually waived cross-examination of each other’s 

witnesses, and PAWC and Butler also waived the opportunity to present oral 

rejoinder testimony. Id. at 4323, 4336, 4357, 4360. Butler also withdrew its motions 

to strike portions of the Townships’ direct testimony and the Townships’ rebuttal 

testimony. Id. at 4358.

On July 31, 2023, this Court issued a decision in Cicero v. Pennsylvania

Public Utility Commission, 300 A.3d 1106 (Pa. Cmwlth. 2023), a factually similar 

case. In Cicero, this Court reversed the PUC’s approval of Aqua Pennsylvania, 

Inc.’s (Aqua) application to acquire the wastewater system assets of East Whiteland 
5

Township, reasoning that Aqua failed to carry its burden of proving that the 

acquisition’s benefits outweighed the proposed harms as required by Sections 1102 

and 1103 of the Code, 66 Pa. C.S. §§ 1102 and 1103.

4

The day after Cicero was decided, on August 1, 2023, the ALJ issued a 

scheduling order in this matter establishing the following deadlines: (1) the joint 

petition for settlement and statements in support thereof must be filed by August 7, 

2023; (2) main briefs on any disputed issues must be filed by August 7, 2023; and 

(3) any written oppositions to the settlement must be filed by August 14, 2023. The

ALJ later extended the deadlines for filing the joint petition for settlement and 

written oppositions at the OCA’s request, which the Townships supported. R.R. at 

4184, 4186. As a result, the joint petition for settlement was due by August 14, 

2023, and any oppositions were due by August 21, 2023.

On August 3, 2023, counsel for Summit Township sent the ALJ and the parties 

an email stating that, on August 2, 2023, its Board of Supervisors “unanimously 

voted” to adopt the following motion:

Summit Township will not oppose, nor will it contest[,] the settlement

for the sale of [BASA] as reached between [PAWC], [the OSBA], [the 

OCA], [I&E], BASA, the City of Butler[,] and Butler Township. The 

Summit Township Solicitor is authorized to take all necessary action to 

implement this Motion. Other than authorizing the Solicitor as set forth 

above, Summit Township will take no further action in the Protest filed 

with the [PUC] at Docket No. A-2022-3037047.

R.R. at 4186 (emphasis added). Summit Township’s counsel further stated: “I 

anticipate that Center Township will vote to approve the same [m]otion at [its]

regularly scheduled meeting of August 9[, 2023].” Id.

4

 ALJ Marta Guhl, who presided over the administrative proceedings in this case, also 

presided over the administrative proceedings in Cicero.
6

On August 10, 2023, counsel for Center Township sent the ALJ and the parties 

an email notifying them that, on August 9, 2023, its Board of Supervisors adopted a 

motion identical to the motion adopted by Summit Township. Specifically, Center 

Township’s Board of Supervisors “unanimously voted” to “not oppose . . . [or]

contest the settlement for the sale of [BASA]” and to “take no further action in the 

Protest filed with the [PUC] at Docket No. A-2022-3037047.” Id. at 4192 (emphasis 

added).

5

In accordance with the ALJ’s order, on August 14, 2023, PAWC, Butler, I&E, 

the OCA, and the OSBA filed a Joint Petition for Approval of Unanimous Settlement 

of All Issues (Joint Petition) with the ALJ. The Joint Petition averred in pertinent

part:

At the telephon[e] hearing on July 28, 2023, the [parties] informed the 

ALJ that they had reached a settlement. The hearing was delayed to 

give Center [Township], Summit [Township], and Cleveland-Cliffs

[Steel][6]an opportunity to review the [S]ettlement [Agreement]. When 

the hearing convened, counsel for Center [Township] and Summit 

[Township] indicated that [the] Townships would not oppose the 

settlement and, at the next meeting[s] of the [T]ownship[s’]supervisors, 

counsel expected to receive authority to join the settlement. By emails 

of August 3[, 2023] and August 10[, 2023], counsel for Center and 

5

In its Petition for Review, Center Township avers:

When the issue of settlement was voted upon by Center Township and Summit 

Township, both municipalities determined not to enter into the [S]ettlement 

[A]greement but, instead, voted to not oppose the [S]ettlement [A]greement 

because the OCA would no longer proceed with litigation, being a party to the 

[S]ettlement [A]greement.

Ctr. Twp. Pet for Rev. ¶ 15.

6 Cleveland-Cliffs Steel was granted intervenor status at the administrative level but is not 

a party to this appeal.
7

Summit notified the ALJ that Center and Summit would not oppose the 

Settlement.

Id. at 3832 (emphasis added); see also id. at 3829 (the Joint Petition also stated that

the Townships “do not oppose the Settlement”); PUC Op., 11/16/23, at 5 (the PUC 

found that “[n]o [p]arty opposed the Settlement”).

Neither Center Township nor Summit Township filed written objections to 

the Settlement Agreement by the August 21, 2023 deadline. The record in the matter 

was closed on August 23, 2023. PUC Op., 11/16/23, at 5.

On September 14, 2023, the ALJ issued her Recommended Decision, denying 

PAWC’s Application and setting aside the Settlement Agreement. The ALJ

reasoned that PAWC failed to carry its burden of proving that the benefits of the 

proposed sale outweighed the potential harms. The ALJ concluded as follows:

Based upon the record evidence, PAWC has failed to establish 

that the sewer system under PAWC’s ownership will affirmatively 

promote the service, accommodation, convenience, or safety of the 

public. In addition, the evidence did not establish that any benefit to be 

realized from the proposed transaction would outweigh the harms to 

current PAWC water and wastewater customers or existing BASA 

wastewater customers. As such, the Joint Petition . . . that the parties 

agreed to is not in the public interest and should not be approved.

R.R. at 4051 (emphasis added). Therefore, the ALJ recommended that the PUC

deny both the Joint Petition and PAWC’s Application. Id. at 4056.

On September 21, 2023, PAWC, Butler, and I&E each filed Exceptions to the 

ALJ’s Recommended Decision with the PUC. On September 26, 2023, the 

Townships filed Reply Exceptions, asking the PUC to adopt the ALJ’s 

Recommended Decision. In their Reply Exceptions, the Townships asserted that:

(1) PAWC and Butler attempted to negotiate away the public interest and failed to 

meet their burden of establishing that the transaction affirmatively benefits the 
8

public; (2) the record contains substantial evidence to support the ALJ’s

Recommended Decision; and (3) in light of this Court’s decision in Cicero, the Code 

requires a “compelling public interest” that PAWC and Butler failed to establish.

7

The next day, PAWC and Butler filed a Joint Motion to Strike the Townships’ 

Reply Exceptions (Joint Motion to Strike). PAWC and BASA asserted that the 

Townships waived their arguments in opposition to the Settlement Agreement by 

failing to timely raise them before the ALJ. PAWC and BASA also argued that the 

Townships were estopped from asserting a position in their Reply Exceptions that 

contradicted their position in the proceedings before the ALJ and on which PAWC 

and Butler detrimentally relied.

On November 16, 2023, the PUC issued a 76-page Opinion and Order

granting PAWC’s Application and approving the Settlement Agreement without 

modification.

8

 In its Opinion, the PUC reviewed the evidence of record, the parties’ 

filings, and the ALJ’s Recommended Decision, ultimately concluding that “based 

upon the record evidence . . . , the acquisition has substantial affirmative public 

benefits that outweigh the potential harms resulting from the acquisition.” PUC Op., 

11/16/23, at 60 (emphasis added). The PUC also granted the Joint Motion to Strike, 

finding that the Townships had “waived their arguments included in their Reply 

Exceptions because they did not make or submit th[em] earlier in the proceeding 

before the ALJ.” Id. at 54, 56. The PUC specifically noted that both Townships had 

7 The OCA also filed Reply Exceptions on September 26, 2023. The OCA, while noting 

that it had “joined the proposed settlement,” stated that its Reply Exceptions were “limited” in 

scope because the OCA only “disagree[d] with certain assertions of law” in PAWC’s and Butler’s 

Exceptions. R.R. at 4131. The OCA did not ask the PUC to adopt the ALJ’s decision, nor did it 

challenge the propriety of the Settlement Agreement.

8

 The Opinion and Order was issued by a three-member majority of the PUC. Two PUC 

members dissented.
9

“indicated that they do not oppose the Settlement” and had “advised the ALJ and 

[the p]arties that they did not object to the Settlement and would take no further 

action in this matter.” Id. at 5 n.8, 51 (emphasis added). The PUC further explained:

In addition to not raising their arguments earlier in the proceeding, the 

[Townships] also supported a modified [b]riefing schedule, which 

resulted in the removal of the opportunity for the [p]arties to brief any 

remaining disputed issues. Furthermore, the [Townships] did not file 

written objections to the Settlement, and they advised the ALJ and the 

[p]arties that they did not object to the Settlement and would take no 

further action in this matter. By relying on the [Townships’] 

representations . . . , other parties, including PAWC and [Butler], 

waived their opportunity to present rejoinder testimony and crossexamine certain witnesses at [the] hearing [before the ALJ]. Also, 

certain motions to strike the testimony of witnesses were also 

withdrawn by [Butler] based on the [Townships’] representations.

Id. at 56 (emphasis added).

On December 14, 2023, two weeks before the BASA sale was scheduled to 

close, the Townships filed the instant Petitions for Review with this Court seeking 

to overturn the PUC’s decision. In their Petitions for Review, the Townships aver:

27. The PUC erroneously determined that the affirmative benefits to 

the transaction outweighed the negative effects of the transaction, in 

disregard of the facts entered into the record. 

28. The PUC’s November 16, 2023[] Order failed to properly weigh 

the benefits as outlined in this Court’s decision in Cicero . . . .

29. The PUC erred as a matter of law and did not identify any benefits 

that differ substantially from the benefits already being provided by the 

existing [s]ystem operator, BASA. 

30. The PUC also erred as a matter of law in failing to acknowledge 

that there are insufficient net benefits to support approving the 

transaction.
10

Ctr. Twp. Pet. for Rev. ¶¶ 27-30; see also Summit Twp. Pet for Rev. ¶¶ 27-30

(averring the same). The Townships also aver that the PUC erred in striking their

Reply Exceptions “because the PUC improperly applied the waiver doctrine, even 

though all of the evidence cited to by [the Townships] was included in the record.” 

Ctr. Twp. Pet. for Rev. ¶ 36.

On December 29, 2023, PAWC filed its Application to Dismiss.9 On January 

2, 2024, Butler filed its Motion to Quash. The Townships have also filed Answers 

in response to both motions.

Analysis

Preliminarily, we must address PAWC’s Application to Dismiss and Butler’s 

Motion to Quash. In their motions, PAWC and Butler assert that the Townships 

have waived their present claims by failing to timely object to the settlement before 

the ALJ and by voluntarily abandoning their Protests against PAWC’s Application. 

In response, the Townships assert that because they are not signatories to the 

Settlement Agreement, they had the right to file Reply Exceptions with the PUC as 

well as their present Petitions for Review to address this Court’s “intervening 

decision” in Cicero. Ctr. Twp. Ans. to Appl. to Quash ¶¶ 13-14. The Townships

also assert that because their Reply Exceptions simply mirrored the arguments raised 

in their earlier-filed Protests, “the arguments were clearly raised ‘earlier in the 

proceeding’” and, therefore, were not waived. Twps. Br. at 45.

Generally, “[i]ssues not preserved by the filing of exceptions or raised before 

the [administrative] agency cannot be considered on appeal.” Blue Mtn. Mushroom 

Co. v. Pa. Lab. Rels. Bd., 735 A.2d 742, 752 (Pa. Cmwlth. 1999); see Pa.R.A.P. 

1551(a) (stating that “[o]nly questions raised before the government unit shall be 

9 Pa.R.A.P. 1972(a)(5) permits a party to an appeal to file a motion “[t]o dismiss for failure 

to preserve the question below.”
11

heard or considered” on appeal). With regard to proceedings before the PUC, this 

Court has explained:

The [PUC], as an administrative body, is bound by the due process 

provisions of constitutional law and by the principles of common 

fairness. Among the requirements of due process are notice and an 

opportunity to be heard on the issues, to be apprised of the evidence 

submitted, to cross-examine witnesses, to inspect documents, and to 

offer evidence in explanation or rebuttal.

Hess v. Pa. Pub. Util. Comm’n, 107 A.3d 246, 266 (Pa. Cmwlth. 2014) (en banc). 

For this reason, the PUC “‘has rejected attempts by parties to . . . make up new 

arguments in the exceptions state of a proceeding’” because “‘[a]dmitting such new 

matter late in a proceeding can deprive an opposing party of an opportunity . . . to 

respond to the newly-raised issues.’” Id. at 265 (citation omitted). Indeed, this Court

has upheld the PUC’s rejection of a party’s attempt to “inject a new . . . argument at 

the eleventh hour” during the exceptions stage of the proceeding. Id. at 266-67

(holding that where the protestants raised an argument for the first time in their reply 

exceptions, the PUC “properly afforded [the applicant] the due process protections 

the law requires and did not abuse its discretion” in striking that portion of the 

protestants’ reply exceptions).

Here, although the Townships initially protested PAWC’s Application, the 

record establishes that they voluntarily abandoned their Protests when both

Townships’ Boards of Supervisors voted to “take no further action in the Protest 

filed with the [PUC] at Docket No. A-2022-3037047,” and the Townships notified 

both the ALJ and the parties that they would “take no further action” in the matter. 

Critically, the Townships do not dispute these statements. The Townships’

intentions were also memorialized in the Settlement Agreement submitted to the 

ALJ, to which the Townships did not object.
12

In response to PAWC’s and Butler’s motions, the Townships assert that “the 

Reply Exceptions were filed . . . based on the intervening Cicero case” and that “the 

issue of the impact of the Cicero case only arose when ALJ Guhl denied the 

Settlement Agreement” in her Recommended Decision. Ctr. Twp. Ans. to Appl. to 

Quash ¶¶ 13-14; Twps. Br. at 46. The record belies this assertion.

Cicero was decided on July 31, 2023, after which all of the following 

occurred: both Townships voted to neither “oppose” nor “contest” the Settlement 

Agreement and to “take no further action” in their Protests against PAWC’s 

Application; the Joint Petition was submitted to the ALJ for approval; written 

objections to the Settlement Agreement were due to the ALJ, but were not filed by 

either Township; the ALJ closed the record; and the ALJ issued her Recommended 

Decision. Because Cicero was decided prior to these actions, it was not a change in 

circumstance justifying the Townships’ attempt to revive their earlier Protests that 

they expressly abandoned.

Moreover, it is well settled that “[a] party has a duty to preserve an issue at 

every stage of a proceeding” and “must comply with the general rule to raise an issue 

at the earliest opportunity.” Campbell v. Dep’t of Transp., Bureau of Driver 

Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014) (emphasis added); see also Wing 

v. Unemployment Comp. Bd. of Rev., 436 A.2d 179, 181 (Pa. 1981) (holding that an 

“administrative law tribunal must be given the opportunity to correct its errors as 

early as possible”). Our Supreme Court has recognized that these principles of 

waiver apply equally in administrative proceedings. See HIKO Energy, LLC v. Pa. 

Pub. Util. Comm’n, 209 A.3d 246, 262 (Pa. 2019). In other words, an administrative 

agency must have the first opportunity to correct any alleged errors to ensure “an 

efficient use of judicial resources.” Station Square Gaming L.P. v. Pa. Gaming 
13

Control Bd., 927 A.2d 232, 240 (Pa. 2007). Thus, a party in an administrative 

proceeding must “advance all legal theories” before the tribunal resolves the parties’ 

claims, unless the reviewing court “is satisfied that the [party] could not by the 

exercise of due diligence have raised [the alleged error] before the” agency. Id.; see 

Hess, 107 A.3d at 266-67.

In this case, after Cicero was decided, the Townships had two opportunities 

to raise any arguments in opposition to the settlement based on Cicero: in response 

to the ALJ’s request for briefs on any disputed issues and in response to the ALJ’s 

request for any written objections to the Settlement Agreement. The Townships 

filed nothing. In fact, as the PUC observed, the Townships agreed with the OCA’s 

request for a modified briefing schedule “given that the parties ha[d] reached a 

unanimous settlement,” R.R. at 4184, 4186, “which resulted in the removal of the 

opportunity for the [p]arties to brief any remaining disputed issues,” PUC Op.,

11/16/23, at 56. After the deadline for filing objections had passed, the ALJ –

appropriately – closed the record. The Townships did not raise any objections to the 

settlement based on Cicero until after the record was closed and the ALJ issued her 

Recommended Decision. Because they failed to raise such objections at the earliest 

opportunity, we conclude that the Townships have waived these claims. See, e.g.,

Levy v. Senate of Pa., 94 A.3d 436, 441 (Pa. Cmwlth. 2014) (holding that “an agency 

must raise all [of] its challenges before the fact[]finder closes the record”); Williams 

v. Workmen’s Comp. Appeal Bd. (Realty Servs. Co.), 646 A.2d 633, 636 (Pa. 

Cmwlth. 1994) (holding that where the claimant did not raise the timeliness of the 

employer’s answer to his claim petition until after the referee closed the record, he

failed to preserve the issue for appellate review); Ellzey v. Gwynedd Twp. Bd. of 

Comm’rs (Pa. Cmwlth., No. 990 C.D. 2019, filed Nov. 19, 2020), slip op. at 16 n.14 
14

(concluding that the “[a]ppellants did not raise the issue of the sufficiency of the 

[a]pplication at their earliest opportunity to do so, which was at the public meeting 

before the Board [of Commissioners] and well after the [a]pplication was 

submitted,” and, therefore, they “have waived that issue” on appeal).10

Moreover, the Townships’ statements that they would no longer contest the 

settlement or pursue their Protests impacted the course of the litigation before the 

ALJ. As the PUC found, PAWC and Butler, in reliance on the Townships’

representations, waived their rights to conduct cross-examination of certain 

witnesses, including the Townships’ witnesses, to present rebuttal testimony, and to 

introduce further evidence before the ALJ in support of their respective positions. 

PUC Op., 11/16/23, at 56. As PAWC and Butler argued before the PUC, the record 

“could have been substantially different if the[y] had known that the [Townships]

would change their position later in the proceeding and oppose the [s]ettlement.” Id.

at 51.

As discussed earlier, the Townships had the opportunity to argue to the ALJ 

that she should disapprove the Settlement Agreement, based on Cicero or any other 

precedent, before the close of the record, but they chose not to do so. Instead, on 

August 3 and August 10, 2023, the Townships notified the ALJ and the parties that

their governing bodies had approved motions stating that, going forward, the

Townships would no longer oppose the settlement or continue to pursue their 

Protests against PAWC’s Application. R.R. at 4186, 4192. The Townships do not 

dispute this fact. See Ctr. Twp. Ans. to Appl. to Dismiss ¶ 20. In reliance on the

Townships’ clear representations, the parties did not file additional briefs in response 

10 An unreported decision of this Court, issued after January 15, 2008, may be cited for its 

persuasive value pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. 

Code § 69.414(a).
15

to the ALJ’s August 1, 2023 Order, believing that the Joint Petition adequately 

addressed the outstanding issues to the satisfaction of all interested parties, including 

the Townships. See PAWC Br. at 23, 29, 31-32. Having received no written 

objections from the Townships (or any other party) by the August 21, 2023 deadline, 

the ALJ then closed the record and issued her decision.

11

On September 26, 2023, seven weeks after abandoning their opposition to the 

settlement and their Protests, and one month after the record was closed, the 

Townships voiced objections to the settlement for the first time in their Reply 

Exceptions, and they do so again on appeal.

12

 The Townships, however, offer no 

reason for their reversal of position other than the “intervening” Cicero case, an 

argument we have already rejected. See Hess, 107 A.3d at 266-67 (rejecting the 

protestants’ attempt to assert a new argument for the first time in their reply 

exceptions).13

11 As PAWC asserts in its appellate brief:

If, despite their promises to the contrary, the Townships wished to assert objections 

to the Settlement, they had the opportunity to timely object to the Settlement when 

it was submitted to the ALJ. These objections could have been based on this 

Court’s decision in Cicero, which was issued several weeks before the Settlement 

was submitted to the ALJ. The Townships, however, never voiced any opposition 

to the Settlement – for any reason – when it was pending before the ALJ.

PAWC Br. at 11 (emphasis added). 

12 In its appellate brief, Butler points out that in their Reply Exceptions, “the Townships 

did not respond to the exceptions filed by any of the parties and, instead, used their [R]eply 

[E]xceptions to ‘adopt’ the ALJ’s conclusion, asking the [PUC] to disapprove the Settlement 

Agreement to which the Townships—up until that moment—had never opposed nor objected.” 

Butler Br. at 15 (emphasis added).

13 In their appellate brief, the Townships also contend that the PUC erred in striking their 

Reply Exceptions, arguing that the PUC should not have entertained the Joint Motion to Strike and 

(Footnote continued on next page...)
16

The Townships attempt to avoid waiver by arguing that while they never 

opposed the settlement, they always opposed the sale. See Ctr. Twp. Ans. to Mot. 

to Quash ¶¶ 31, 34. However, the Settlement Agreement, which the Townships 

chose to not oppose or contest, effectuated the sale and set forth the terms of the sale 

in detail, subject to the PUC’s ultimate approval. If the Townships, after reviewing 

the Settlement Agreement, had concerns with the terms of the proposed sale and how 

those terms would impact their residents, they had the opportunity to raise those 

concerns before the ALJ prior to the close of the record, but they did not.

Furthermore, not only did the Townships vote to not oppose or contest the 

settlement, they went a step further and also voted to “take no further action in the[ir]

Protest[s]” filed with the PUC. Those Protests contested PAWC’s Application to 

acquire BASA. Consequently, the Townships’ unanimous votes to “take no further 

action” in their Protests can only be construed as taking no further action against 

PAWC’s Application to purchase BASA – i.e., the sale.

We conclude that the Townships have waived their arguments on appeal by 

failing to raise their objections to the settlement for the sale of BASA before the ALJ

and by voluntarily abandoning their Protests against PAWC’s Application. Accord

Belote v. State Harness Racing Comm’n, 688 A.2d 264, 267 (Pa. Cmwlth. 1987) 

(“[The p]etitioner did not place the agency on notice that he believed the agency was 

constitutionally required to follow the Maryland findings. In actuality, [his] counsel 

gave the agency the opposite impression when he stated at the hearing that the 

Maryland adjudication was not binding on the Commission. Therefore, we hold that 

improperly applied the doctrine of waiver. See Twps. Br. at 42-47. We disagree, as our Court’s 

en banc decision in Hess supports the PUC’s striking of the Townships’ Reply Exceptions based 

on waiver. See Hess, 107 A.3d at 266-67 (concluding that the PUC “did not abuse its discretion” 

in striking a portion of the protestants’ reply exceptions based on waiver).
17

[the p]etitioner waived any argument regarding the Full Faith and Credit doctrine.”)

(emphasis added).

14

Conclusion

Accordingly, because we conclude that the Townships failed to properly 

preserve their issues for appellate review, we grant PAWC’s Application to Dismiss, 

dismiss as moot Butler’s Motion to Quash, and dismiss the Townships’ Petitions for 

Review.

15

ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of the case.

14 In the alternative, PAWC and Butler assert that the Townships are estopped from 

pursuing a position on appeal contrary to the position they advocated before the ALJ and upon 

which PAWC and Butler detrimentally relied. See Associated Hosp. Serv. of Phila. v. Pustilnik, 

439 A.2d 1149, 1151 (Pa. 1981) (holding that a party to an action is estopped from assuming a 

position inconsistent with his or her assertion in a previous action, if that contention was 

successfully maintained before the prior tribunal); see also Sunbeam Corp. v. Liberty Mut. Ins. 

Co., 781 A.2d 1189, 1192 (Pa. 2001) (“Judicial estoppel is an equitable, judicially-created doctrine 

designed to protect the integrity of the courts by preventing litigants from ‘playing fast and loose’

with the judicial system by adopting whatever position suits the moment.”). However, we need 

not address this claim, because we conclude that the Townships have waived their arguments on 

appeal by failing to properly raise them before the ALJ and by abandoning their Protests filed with 

the PUC.

15 In light of our ruling on PAWC’s Application to Dismiss, we do not reach the merits of 

Townships’ appeals. We note, however, that the key issue the Townships raise in their Petitions 

for Review is whether the PUC’s approval of the sale, as set forth in the Settlement Agreement, 

comports with our reasoning in Cicero. The Pennsylvania Supreme Court recently granted 

allowance of appeal in Cicero on June 14, 2024, after the parties filed their briefs with this Court. 

The Supreme Court accepted eight questions for appellate review, one of which is “[w]hether, as 

a matter of public policy, th[e Supreme] Court should accept th[e] appeal to bring clarity and 

predictability to issues involving the sale and purchase of water and wastewater systems affecting 

utility customers throughout the Commonwealth.” Cicero v. Pa. Pub. Util. Comm’n (Pa., Nos. 

568-570 MAL 2023, filed June 14, 2024).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Center Township, Butler County, :

Petitioner :

:

v. : No. 1459 C.D. 2023

:

Pennsylvania Public Utility :

Commission, :

Respondent :

Summit Township, Butler County, :

Petitioner :

:

v. : No. 1460 C.D. 2023

:

Pennsylvania Public Utility :

Commission, :

Respondent :

O R D E R

AND NOW, this 26th day of September, 2024, we hereby GRANT the 

Application to Dismiss the Petitions for Review and for Expedited Consideration 

filed by Intervenor Pennsylvania American Water Company. The Petitions for 

Review filed by Center Township and Summit Township are hereby DISMISSED. 

The Motion to Quash the Appeals for Lack of Issue Preservation filed by Intervenors 

Butler Area Sewer Authority, the City of Butler, and the Township of Butler is 

hereby DISMISSED AS MOOT.

ELLEN CEISLER, Judge