ML20091K206

Forwards Court of Common Pleas of Bucks County 840529 Opinion & Order Rejecting Position That Agreement Between Util & Nwra Void Which Appeared in 840530 Answer to Request by Del-Aware to Set Aside Partial Initial Decision

ML20091K206
Person / Time
Site:	Limerick
Issue date:	06/01/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Edles G, Gotchy R, Kohl C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8406060448
Download: ML20091K206 (45)

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LAW OFFICES GONNEn Se WETTERHAHN. P.G. 00 (TED 1747 P E N N S Y LVA N I.*. AV E N U E, N. W.

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Christine N. Kohl, Chairman Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Reginald L. Gotchy Atomic Safety and Licensing Appeal Board 000KET ?:UP?T.4 U.S. Nuclear Regulatory P.T O.A UTI!..r?.C..y'~[)L.}.

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Commission Washington, D.C. 20555 In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)

Dear Board Members:

In Applicant's Answer To Request By Del-Aware To Set Aside The Partial Initial Decision on Supplementary Cooling Water System Contentions (filed May 30, 1984),

we stated at page 2, footnote 2, that, on May 29, 1984, the Court of Common Pleas of Bucks County-entered an Opinion and Order rejecting the position that the Agreement between PECO and NWRA is void.

Enclosed for your information is a copy of the opinion, which we received today.

Sincerely, Tro B. Conner, Jr.

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TBC/ac Enclosure cc: Service List 8406060448 840601

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. COURT OF. COMMON PLEAS OF BUCKS  % COUNTY - CIVIL

-DANIEL J. SULLIVAN, et al  : No. 83-8358-05-5

v.  :

COUNTY'OF BUCKS, et al'  :

OPINION AND ORDEF

-Allfof'the defendants in this case have filed

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sof the original

. preliminary objections to the amended complainte The intervening plaintiff and the--intervening plaintiffs.

plaintiffs are Philadelphia Electric Company (PECO) as well.as the' North Penn and North Wales Municipal Authorities.

.The defendants are.'both the. County of Bucks and Neshaminy Wat'er Resources Authorityi (NWRA) , -as 'well. as _ the individual memberE :of the Bucks _ County Board of Commissioners and three

.of' Ehe individual members -of NWRA as well as the executive directorscf that Authority.

This particular. law suit; one of many spawned by

, this. controversy , was : instituted initially- as a ' taxpayers

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faction'to enjoin the County'of. Bucks..from. implementing its-

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': Ordinance'No.-59 whereby and wherein it purported to'take over We_ refused.a-i the Point Pleasant". oumping station l project.

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... i e' l temporary restraining order at the inception of that law suit s.

' but permitted PECO and the North Penn and North Wales Municipal Authorities to intervene. Accordingly they filed complaints on.their own-behalf and subsequently amended complaints. Pre-liminary. objections have been filed by both the County and.NWRA to all'of those. complaints and they are now before us.for' disposition.

In terms of the numbers of_ parties involved, the multitude of documents, pleadings, briefs and memoranda filed L

- of record, and the legion of' attorneys cartici;ating the complexities

- of-thds matter-would: appear to be'overwhelminc. However, the

' threshold-question raised by these preliminary objections almost

- strikes to the , very. heartrof the11egal controvepy and its g resolution may very well'largely resolve the issues in dispute.

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-Forithis reason)'it makes-sense for us to address the issues involving the' amended complaint of PECO first'before addressing ,

t the primary-complaint filediby.the original plaintiff in this Ii case. We say- that -because :it f is now' obvious to all a that : the Board.of' County _ Commissioners and-NWRA now desire'to terminate this; project. As we have stated:on several-occasions in the-

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.past,1that decision represents a legislative, executive ~and'  ;;

political one"on their part.-. However, as:we:have likewise-observedEin the past', there may be certain: contractual obli-

- gations-whichLstand'in:the way.

The re fo re ', .the question of. p the validitv and enforceabilitv f of?the'~contractfbetween NWRA' x_

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. l an'd PECO is of paramount importance.

The most significant contention made by NWRA in the

. preliminary objections to the amended complaint of PECO is the

- contention ~that the' contract between PECO and NWRA is ultra vires 1

as being beyon'd the power of NWRA. Defendants' rely upon Price

v. Philadelphia: Parking Authority, 422 Pa. 317 (1966) in their contention regarding the unlawfulness of this contract. In that case the Supreme Court held that a municipal authority is empowered

' to act only for the public benefit and that such authority may not employ its resources for the primary and paramount benefit of a private endeavor. "An engagement essentially private in nature'may not'be-justified on the theory that the public will be incidentally benefited." Price v.-Philadelphia Parking Authority,. supra, page 333. Furrhermore, ". . . we hold that the Parking Authority may not cloak.a private interest, as is here

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L ' proposed , with b'enefits so' grossly disproportionate to the

' benefits.according.to the public. The challenged agreement, therefore, was-beyond-the Authority's power and appellants'were

! entitled to injunctive relief." -Price v. Philadelphia Parking

' Authority. supra, page 340.

l Based upon this decision the defendants analyze 1

1 In'-view of the fact.that.no one has raised the question, we.will

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proceed to' address the issue of. ultra vires altthough we are not-  !

completely. satisfied 1that itris a-matter-which can be raised on preliminary objections. .See' Morris v. Hanover Township Super-

-. visors,-4 D~&lC 3d.245-(1977).

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the agreement between NWRA and PECO of February 12, 1980 and

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assert that it is, in fact, a contract solely for the benefit of PECO only thinly masked ~or veiled as one in the public 2

-interest. As we view that agreement we do not come to the same conclusions as the defendants. The preamble to the agree-ment. recognizes'that the Authority has heretofore acquired certain land and constructed certain reservoirs, dams and other facilities for the purpose of flood control, recreation and water-supply, and that in connection with the Authority's water supply program the Authority presently plans to acquire and construct a pumping station, water transmission mains, a water treatment. plant for the purpose of furnishing water to municipalities, municipal authorities and other public bodies and public utilities'. Further the preamble provides that the Authority ~ proposes to finance acquisition and construction of the water project - from available funds of-the Authority acquired from prior'financings and a prcpcsed bond issue or bond issues of the Authority. The water-project is to be' acquired =and constructed-in phases as required for the purpose of furnishing water'to the public with the'first phase to include a-pumping station,- water transmission mains and a water treatment plant designed in a manner to permit expansion or supplementation in

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.The plaintiffs have not asserted, at leaston these preliminary objections e the doctrine of estoppel and it therefore will not be 7 addressed herein. Whether the assertion of estoppel is denied the plaintifts:by Central Storage & Transfer Co. v. Kaplan, 487

Pa.;46SE(1979) is a' question not now before us.

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e theifuture in order'to. provide greater capacity as needed.

s, With regard to the construction of the first phase project, it is provided that this contract shall be part of the first phase project wh'ich provides for delivery of Delaware River water beyond the BradshawLReservoir to the north branch of the Neshaminy Creek'and to the east branch of the Perkiomen Creek. -

It-is provided that_th'e pumpi:g station will take water from theLDelaware River and pump this water through the combined transmission main to the Bradshaw Reservoir and that the water will1 divide at that reservoir with water for the Authority being; released to flow by gravity through the north branch trans-

! ' mission main to the Neshaminy's north branch channel'. Water purped to the Bradshaw Reservoir by the Authority to be released  ;

to the Authority from the Bradshaw Reservoir will be released without charge to'the Authority. However, water for use by PECO will be pumped by PECO from the Bradchaw Reservoir through the east branch' transmission main to te constructed by PECO to the Perkicnen's east branch channel. It is provided that the combined transmission main which normally will deliver water ton.the Bradshaw Reservoir shall be designed in such a way that

'the1Bradshaw Reservoir,_can be. bypassed _for the delivery of

water'to the north: branch transmission-main. The north branch

' transmission' main and certain other water-facilities to~be

, constructed as a part of the'first phase project are not the

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Esubject;ofnthis-agreementDand are.the sole.respons'ibility of s ~

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the Authgrity. _The Bradshaw-Reservoir, however,-and:its

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- - . ?intecral? pumping: station-and the=.oast branch transmissionLmain-

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Jare'the sole' responsibility of PECO s,

It is further provided in the agreement that the con-templated ultimate capacity of this project shall mean the sum o'f-the capacities reserved for PECO and for the Authority at such future time as the construction shall be fully completed. The ultimate capacity is to'be 95 million gallons per day with 46 million gallons per day to be allocated to PECO ?.nd 49 million gallons per day to the Authority.

The initial capacity of the first phase project meansythe. ultimate-capacity reserved-for PECO plus an amount determined during design.to be reasonably required by the

. Authority at that tire. Provisions shall be included in the first phase project tio; enable the facilities to be expanded to the_. contemplated ultimate capacity of_the entire project, 95

.million gallons per day. The_ initial construction shall include the complete watercintake structure, complete installation of

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the intake conduit under:the. canal, all work associated with

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the ultimate _ pump' structure,jthe complete discharge manifold and about 1,600' feet-.of a full capacity combined transmission maingleading'away;from1the; pump's_ structure. The remaining facilities.and-the. rest of'the main to Bradshaw shall be sized for the finitiaL capacity: requirements.

'It:is further provided.that-the Brad'shaw Reservoir

- willibe'ibuilt.by PECO and'may'be' utilized by the Authority as (part t ofLits transmission system at'no' cost to the' Authority.-

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4 The: agreement further provides that the Authority s.

. covenants'to complete the contemplated water project as re-cuired.for. purposes of'furnishina water to the public. How-ever the Authority reserves the right to enlarge or make any desirable or necessary additions or improvements and any Enecessary or desirable deletions'to the contemplated water

.creject at any time followinc the initial operation of the first

_ phase project to reflect revised needs of the public in a manner so!as not to' interfere.with the required supply of water to the Bradshaw-Reservoir.

< The? defendants' rely heavily upon certain provisions of the contract which provide-that charges set forth in the agreement sh'all not be increased to' reflect the cost of-any such I

-ndditions or improvements unless PECO'has," prior to their imple- l 1

mentation,'in; writing both1 approved said additions or improvements 4

and accepted the-increased costs associated therewith. The  !

-defendants further: point to'the provision that PECO shall-have-the L richt ito f review ' proposed construction involving such additions or' improvements.and.make recommendations in areas where the proposed construction _could adversely affect - the-supply of-water to the Bradshaw Reservoir. It-is provided that.the_ Authority shall act in accordance with such recommendations whenever--PECO' i

advisesEthe' Authority in writing that failure to accept the }-

l recommendations would adversely: affect'the reliability, construction

-costs ~, operating costs, orfconstruction schedule'of the contract) f 1

. project,_ provide'd that no.such recomnendation.by_the company i ishall1 require the'~ Authority to violateJits'oblication to comply

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'O with'all'public bidding requirements and any applicable laws.3 s.

The contract also provides, of course, for the formula of compensation by PECO to the Authority for the water utilized. The agreement likewise provides for payment by PECO to the Authority for financing and managing the portions of the facilties in-cuestien or components to be used for the benefit a3f PECO.

Id we terminate our analysis at this point, the preliminary objections would have to be dismissed. To state the obvious, preliminary objections admit as true all well pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom. Clevenstein v. Rizzuto, 439 l

Pa. 397 (1970) and Dana Perfumes v. Greater Wilkes-Barre Indus-trial Fur:d, Inc.,1 248 Pa. Superior Ct. 395, 275 A.2d 105-(1977).

The complaint asserts that.PECO has contracted with the Authority for these water resources because' of the need for water to be used as a coolant at.its Limerick atomic ~ energy electric _ generating plant which is: currently under construction and nearing completion; The complaint alleges that there-is no other source of available water:for this purpose. The complaint further asserts th'at-PECO has invested'somethingiinl excess of 3 billion

-3 Whether the1 requirement:not to violate any applicable laws

' relates l'to the-authorityLentering-into an ultra vires ~ contract z

is an-aphorism of some interest.

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dollars for the construction.of the nuclear plant and based upon

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s, this~ asserts the necessity of receiving the water to be generated

-by this pumping station. In light of those allegations, at leastsat the: preliminary objection stage, one can well under-stand why the-contract between PECO and the Authority would contain some substantial provisions for control by PECO of the construction project to insure that.the water necessary to meet its needs will be furnished. The fact of those provisions standing alor certa' inly is not a sufficient basis upon which to find this contract ultra vires as a matter'of law.

However, although we recognize the danger of ever deciding more than is necessary, because of the unicue nature of this dispute,we deem it appropriate to go beyond the point we have now reached. As we stated previously, if a determination-regarding the viability of PECO's contract- with the Authority can be made, we believe that. substantial progress will be made e towards-resolving-the' entirety.of this dispute. . That is not

'to say that;thcre are not other contractual interests involved 3which'mayuvery welliwithstandza determination-that PECO's contract'is unlawful.' T43 know that among the intervenors in:

' this case are :the North -Penn and North Wales -Municipal Authorities both- o f 'whom ' claim derivative rights through a contract between th'e; County of: Montgomery and the County-of. Bucks. To date the

. County:of Montgomery h'as yet to betheard from.'- 'Notwithstanding

. th h t ,3itiis apparent:to'us~that a resolution of the ledality.

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g-of the1 contract with PECO is imperative to an ultimate decision s,

in this case. Therefore we will proceed.

-Of greater importance is the fact that in determining the validity of this contract we cannot view it or the Point Pleasant project in a vacuum. Rather it must be recognized that theLPoint Pleasant project is but one part of a tremendous under-taking to manage, control and utilize the water resources of this area for flood control, drinking water and recreational purposes.

As has been' established and-found in a companion law suit,

.Plumstead-Township v. Neshaminy Water Resources Authority in an adjudicat' ion-and decree nisi (slip. opinion of May 26, 1983 No. 253.of 1983) the Authority was created by the Board of County Commissioners of.. Bucks County for various purposes including, inter alia, toEacquire, hold, construct, improve, maintain and

' operate flood control projects, low head. dams, water works,-

. water: supply works,-water distribution systems, . lakes and appurtenant parks, recreation grounds-and facilities. Prior:to the creationLof the Authority the Department of Environment Resources (DER) and the Counties of Montgomery and Bucks as

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well'as the Federal Soil ~ Conservation Service ' commissioned a stedv1and~planiforfthe: management of the water resourcesiof the-Bubks and Montgomery county _ areas. As a; result' DER adopted-

'a plan ~which_wasl approved by;.the hovernor'ofPennsylvania,

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. fthe Board !of County;. Commissioners .of Bucks .: County , the - Board of

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County 1 Commissioners of. Montgomery J County and the Congress of s 1the: United States.' TThat' plan-recommended the constructionLof E

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eight. flood' control dams, two multi-purpose dams, and a water w.

supply system with a water diversion facility at Point Pleasant in Plumstead Township, Bucks County, Pennsylvania, this project.

Furthermore, the Delaware River Basin Commission (DRBC) a commission formed by compact between the States of New York, New Jersey, Delaware and the Commonwealth of Pennsylvania, together with the-United States, was charged with the respon-sibility for managing the water resources of the Delaware River basin. That commission approved the construction of the eight flood control dams, the construction of the two multi-purpose dams (Core Creek Park and Peace Valley Park) and.on February 18, 1981 issued its docket decision approving the Point Pleasant Diversion Project. .The water allocation permits were issued by DER in or abcat 1970 which provided for the construction of the water diversion facility at Point Pleasant and a water treat-

. ment plant at Chalfont, Bucks County, Pennsylvania. In 1979 the 1970 permit was modified which reduced the amount of water authorized by the_ Authority to withdraw from the Delaware River.

The Army Corps of Engineers has likewise issued its permit for

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the construction of the intake and related facilities at Point

. Pleasant.

The Neshaminy water supply system is part of an over-all p'roject which; includes the construction of eight~ flood control dams, two mul'ti-purpose dams and a water supply system.

The Point. Pleasant pumping: station:is a part of the Neshaminy 7

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water supply' system. The cost of the entirety of the Neshaminy

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water supply. system is something in excess of 50 million dollars.

Additionally, approximately 32 million dollars in bonds lhave"been; issued by the Authority for the construction of the flood control dams,- the-multi-purpose reservoir (Peace Valley spark.and Core Creek Park), and the Neshaminy water supply system.

As might be. expected, because of the multiplicity of purposes and'far reaching effects of the totality of this project,

!of'which the Point Pleasant' pumping-station is but a part, there is-a variety of other contractual relationships involved. On

March (1, 1967 the Authority 7 entered into a contract with the County of Bucks regarding the. total undertaking of this water management project. This' agreement constitutes both an agreement and a lease.whereby and wherein the-Authority leases all of the l park lands' created by virtue of.the establishment-of the dams and reservoirs to thetCounty.for.use by the County as park lands.

In the_ preamble to that^ agreement and pursuant to the request of

!the County, the' Authority undertcok as its.first project the L

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construction and acquisition of-facilities"for'the control of floods,.

development' of water resources,- the conservation of soil, and

.cssistance toLrecreation,~ including _the construction.of.two-reservoirs for.the combined purposes of'f'lood-control ~and water' -

supply,.theLconstruction of eightfreservoirs:primarily for flood

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control, the ac,quisition'ofi the' existing: water, supply' reservoir,

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'theiconstructioniof; intakes and' pumping stations'at-two locations

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E to take water from the Delaware river. This of course has been s,

amended to one intake only, the one in question herein. A significant portion of the entirety of this project has already been constructed and completed. It is further provided in that agreement that_the project shall be funded, at least in part, by the issuance of two or more series of bonds under a certain bond indenture. Article I of that-agreement and lease provides that the Authority shall take and.cause to_be taken all requisite action to construct and' complete the project out of the proceeds to be received by it from the sale of the 1967 series bonds.

The County is obligated to consider all proposals for the progress of the project with-reasonable promptness and required to approve the same as submitted or subject to any changes directed by the ounty not inconsistent with the provisions of any agreement relating to the federal grant,to comply with the provisions of,the watershed work plan agreement and with its obligations under any other agreement to which it is a party relating to_either the federal grant or'any future grant or subsidy in connection with the construction of the project.

The-County is-further obligated to acquire land avi other interests in real estate as required and shown on the plans for the proje'ct.

That agreement and-lease further provides that the County shall lease.the reservoirs and park system from the

Authority paying rent. therefor which obviously was contemplated to be'used by the Authority for the payment of interest.and

, reduction'of the principle on the bonds it had offered and sold. ItLis ~further provided'that the' county shall'use its s

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.best efforts to obtain from public or private water supply and s.

distribution agencies and from any consumers of large quantities of water written contracts for the purchase of all water available for such purposes from the reservoir and park system.

Clearly, PECO represents a substantial purchaser of water from the system which purchases are, of course, necessary .

to permit the Authority. to retire its bonded indebtedness.

The agreement also acknowledges that all right, title ,

and interest of the Authority under-it are to be assigned to the trustee appointed under the bond indenture. In fact, that agreement and lease was assigned to the bond trustee as collateral and security for the bonds themselves. ,

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of course, there is also a bond indenture which mus I

be considered as one of the contractual' obligations involved l

in this case. The bond indenture was dated March 1, 1967 and l

,. was'exectuted on behalf of the Authority and the trustee. In the preamble to the. indenture _ reference is made to the project including the pumping station at Point _ Pleasant. Reference _is

'further made to~the-lease and agreement dated MarchL1, 1967 as heretofore' referred ~to. .In the definition-section-of.the trust indenture.the authorized purpose of the.borrowingLis set-

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out as the completion of L the construction of the entirety of the project.which_ includes the pumping station at. Point Pleasant.

The' trust-: indenture further.provides for supplemental-indentures.. It-makes-. reference to:the ordinance or resolution' r

-of the Board of: County' Commissioners authorizine execution by

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. Ethe county ' of: the supplemental lease referred to previously and i 1makes reference'to'an opinion of counsel regarding the purposes s.

ifor'which' additional bonds are to be authenticated and delivered ondtfurther that all'. leases and supplemental leases are valid, ,

1 binding and-enforceable instruments and in accordance with their terms and have been. duly pledged by the Authority with the trustees. l The bond-indenture further obligates the Authority to take and cause:to be taken all recuisite action to construct and complete the project and further that no fundamental change j

.or alteration will be made-in the.secpe of.the project or in any. plans'and specification'unless and until-the changes or alterations shall have~been submitted to and' approved.by the

, Authority, the County.and the consulting. engineers. Th'e County g

covenants-that it will faithfully perform each'and every p covenant andzagreement'on'its part.to be< performed under the

contracts:for'the construction of the project.

l The bond indenturefprovides that a default shall

. occur'if there shall be a default under the-lease or any supple-m ntal. lease?cr'if the reservoirs or pumping station or any part

- thereof shall.. be :destroyedc or damaged and shall. not be promptly rcpaired.. The indenture-further provides for a default if the contemplatedfproject'shalltnotibe built.

Essentially _thel bond indenture is largely dependent ~

1 Supon . the; agreements between the County' and ; the Authority; as

contained [in'.thelagreement and lease.-of March 1, 1967 and any.

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1cupplemental-agreements?theretofas security for-the bonds.that s - -

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are issued. The lease of the reservoir and park lands to the county. represents a source of income to.the Authority for purposes of helping to meet its. bond obligation.

In addition there is an agreement ber. ween and among the_ Board of County. Commissioners of Bucks County and Montgomery County'as well as the Authority dated January 14, 1981. In this agreement'the County agrees to construct or cause to be con-structed by the Authority, inter alia, the Point Pleasant pumping station. .The County ~and the. Authority agree in this contract to proceed diligently with the design, construction and operation of the treatment plant and the Point Pleasant facilities.

Lastly, there are two agreements entered into between Montgomery County and the North Penn Municipal. Authority and the North Wales Municipal Authority. In each of these agreements the -ounty of Montgomery' agrees to furnish water to each of

these authorities'so that drinking. water may be furnished to

-the customers of those authorities. Obviously,-these agreements' between-these twocauthorities and the County.of~ Montgomery.are-Ldependentiuponxthe agreement between the County of Bucks and the County of Montgomery of. January?14, 1981..

Seelthe1 opinion in the companionocase of. County of-Bucks av. Neshaminy 2 Water Resources 1 Authority.(slip opinion entered' July 14,

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1983 as;No. 4408. oft 1983),.

As.- we view Jit , we .-- cannot-' merely ' assess the.' contract wi th g 'PECO'in determining.whetherfor A.otJit'is a~contractLbeyond~the g

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legalvauthori ty ' o f" NWRA.- We believe that-this contract.

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3-is'but one integral part of the entirety of the project having

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' to do with water management of the Delaware River basin.

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As

-can be seen.it.is_but one' aspect of a series of inter-related contractual relationships between and among the Authority, the County of Bucks, the County of Montgomery, the two water authorities of Eastern Montgomery County, the bond indenture as well as the regulatory. agencies involved in these decisions which are concerned with the water management of the Delaware River basin. As such we determine that this contract is not ultra vires and is in fact _ binding. Therefore, the. preliminary objections on the~ grounds of. ultra vires are denied.

Defendants contend that the contract with PECO is in violation of Article 3,.S31 of-the Pennsylvania Constitution because of the alleged delegation of authority to PECO to control the-construction of the project. That provision of the Constitution provides as follows':

"The General Assembly.shall not delegate to any special commission, private corporation L or' association,1any power to make,: supervise or interfere with'any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes _or perform any municipal function whatever. . ." ,

This provis' ion of the_ constitution has been held to

apply to, municipal corporations as well-as agents of the State.

.See? Wilson v. Philadelphia School District, 328 Pa.--225 (1937).

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Jahd Weatherly Borough v. Warner,1148 Pa.' Superior Ct.- 557 (1942).

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To some extent, but not entirely, this contention'is La: variation'on.the same-theme as the ultra vires argument on the t

basis _offPrice v.: Philadelphia: Parking Authority, supra. As we i _ _ _ _ _

. have held previously in this opinion we are satisfied that this s,

contract is part of a much larger undertating designed and

- intended for genuine-and necessary public purposes. That PECO may incidentally benefit is of no moment. See Basehore v.

. Hampden Industrial Development Authority, 433 Pa. 40 (1968).4 We do not believe that the Authority has delegated the control and construction of this prcject to PECO. The concept, specifications and plans for the entirety of the project were drawn by the engineers specifically engaged by the Authority-to meet the overall requirements of the project itself.

It was based upon these conceptual reports, plans and specifications p, - that the permits from the DRBC, DER, and United. States Corps of Engineers were issued. This project at Point Pleasant is being constructed according to the plans and specifications drawn by

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the engineers engagec by the Author.ity and the construction is i <

i- being supervised by the engineers' engaged by the Authority. The construction contracts were enteredinto by'the ' Authority and the prime 1and sub-contractors and not by PECO. The' contract between

. PECO :and the Authority 'does .not delegate to PECO the right to

- construct.or to require construction according to PECO's plans

- and specifications. Distinguish Weatherly Borough v. Warner, supra.

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Admittedly certain rights of participation in evolving changes in those plans are givenito PECO in this contract-. Delegation merely i

~4 K We need not. address.PECO's contention that it, strictly speaking, k . is not,the same as a private corporation because of the fact that.

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- of.some control over details in construction or various aspects s.

of theEproject'itself would not run afoul of this constitutional

- requirement. Wilson'v. Philadelpphia School District, 328 Pa.

225 '(1937). Considering that PECO is a major purchaser of water'from.the NWRA and-that the sale of water is necessary for the' retirement of the public bonds sold for the purpose of raising the capital for the construction of the entire project, it is not surprising that PECO have some input in the construction and 4

decision making process regarding that portion of the project which will-furnish the water to PECO. PECO's need for this water to be able to operate its nuclear' generating plant in which.it has invested so heavi'.y converts PECO into an important customer of-the. Authority.for the~ sale of water. Therefore, we conclude that-this contract is not in-violation of Article 3',

S31 of the PennsylvaniaLConstitution.

Defendants next contend that the contract with' PECO

- is ultra vires.and therefore invalid by virtue of the application of..the. provisions.of Article 9, S9 of the Pennsylvania Consti -

tution. In relevant part that'section provides.as follows:

"The General Assembly shall not authorize Jany1 municipality or. incorporated district to become a stockholder in any company,. association

.or.-corporation, or to obtain or appropriate money

-for, or.to. loan its-credit to, any. corporation, association,rinstitution.or individual. .. ."

5.This provision h'as!be'en construed to-mean that.the

municipality; mayjnot lend :itsrcredit to a purely. private

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Cnterprise. -Rettig v; BoardTof County-Commissioners,-425 Pa..

. 2741 ( 19 6 7 )' .? L Howeve r , the constitutional' provision.

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was.not intended to prevent a municipal corporation from s

entering : into engagements to carry out a proper governmental

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purpose, though the incurring of indebtedness results. Appeal of German, 25 Pa. Commonwealth Ct. 108 (1976). Although by virtue of this constitutional provision, the municipal entity is restricted from'appropriatinc public funds to a purely private enterprise, the undertaking by the municipal corperation does

-not lose its public character merely because there may exist

~

in.the undertaking some feature-of private gain, for if the oublic good-is enhanced, it is immaterial that a private interest

-may also be-benefited. Belovsky v. Redevelooment Authority _,

3$7 Pa. 329 (1947).

We have previously found herein that-the totality of the undertaking of the' Authority is of a-public nature intended

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for'the enhancement-of_the public interest. Of importance

.to.th'at unde ~rtaking'is the sale of water.

- As a result of that sale, there.is.an incidental benefit, perhaps even a substantial l one,oto PECO. However,7 the construction of_the-Point Pleasant

-project itselfLisan integral part of'the-totality of the project

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southat water-may be'available for'the. recreational use of Lthe_public in-jthe reservoirs'behind'the dams, for the control of th'e" Delaware' River.in.both.high. volume andilow volume flow, and for.the; purpose of making water available1for drinking purposes.-.

.That PECO,vasfa[ private enterprise,; derives benefit!as aJcustomer-

._of.the. municipal authority,1makes the overall. project-no;1essJ (a .publicjone than a; _ sit uation where a private vendor ' renders-services"to the>J0veni-leDCourt foricare, treatment and super--

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. vision of juvenile delinquents. Therefore, the contention that

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the contract is ultra vires under the provisions of Artile 9, 59 of the Pennsylvania Constitution is without-merit.

Defendants next argue that even if the contract with PECO should be considered to have been valid when entered into, it .has now been rendered invalid by virtue of the events which

' lave since transpired. This ingenious argument is supported solely by its own bootstraps. The defendants contend that the contract with PECO is now rendered unlawful because all public purpose has been taken from it by virtue of the avowed purpose of the Authority and Bucks County no longer to proceed with the project itself. Needless to say,.the purpose of these proceedings is to determine whether the Authori ty and Bucks County must, by force of law, be required to proceed with the various contracts.

Defendants ~ lose sight of the_ fact that there are other parties on this record who seek enforcement of this contract, not the least of which are the-North-Penn and North 1 Wales Municipal _ Authorities.

In. light of that, we are hardly able.to-find that the contract-with PECO is unlawful based' solely upon the1 allegedly-expressed intention offthe-Board members of the Authority.and of the Board of County Commis'sioners! of- Bucks _ County 'not to proceed with the

.Neshaminy project.

Defendants' argument lunder the " force mageure" provision LofLthe contract,is-equally unsubstantial. That provision provides in relevant:part-~asLfollows:

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9' "A party shall not be conridered in default in the performance of its obligations hereunder, or any of them,'to the extent that performance of such obligations , or any of them, is prevented or delayed by any cause, existing or future, which is beyond the reason-able control of such party. . . "

Assuming that the prevention or delay of the performance of the obligation is contemplated to be the disinclination of the Commissioners of the County of Bucks to proceed with the project, that_ argument misses the mark. Once again, the right of the County Commissioners to disengage from this project in the face of asserted contractual obligations is the matter at

- issue in'this law suit. Furthermore, and regardless of whether or not this court may_ order the County Commissioners-to exercise their right of eminent domain to acquire the' additional property necessary for the' completion of the_ project, it must be remembered that'the Authority lik'ewise possesses powers'of eminent domain.

At this stage of the proceedings we need not get into the~ thicket- of when the -County Commissioners ' actions cannot be considered binding upon their elected successors. We are here to

' decide at this time the validity of a_ contract ~between the Authority'and PECO.

Defendants contend 7that their preliminary: objections should be~sustainedLand tne complaints-dismissed on the basis 6

~ of the" constitutional: concept of1 separation of powers and ithe prohibition upon the judiciary in. invading'the-prerogatives' of.the'legi'slative T branchrof_ government. However, it'is clear-.to us_that=theJplaintiffs herein do not seekEany order.

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4 y~ powers of th'e Board of' County Commissioners of Bucks County.

Ra the rt, : these complaints seek to reA'ress contractual rights y aJready engaged.by the Authority and the County. As was stated in Philadelphia v. Fidelity-Philadelphia Trust Co., 358 Pa.

155' (1948):

"*he right now being adjudicated as solely one of mutual contractual rights and reciprocal 7'g61igations."

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and it cannot violate the ob' ligation of a. contract entered into

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t by it in its capacity as a public body because it deems it

, to be for the benefiti of the citizens to do so. As noted in

-Allegheny County v!'Pennsvlvania Public Utility Commission, 192 Pa .- Superior Ct. 100 (1960) where, as' contended here, the County is seeking ~to' evade 'the' provisions of a contract'already entered into, the municipality is not at liberty-tofavoid-its contractual obligations merely because it deems it to be for the benefit of

the-citizens to do so. .

Delaware River Port Authority v. Thornburoh, Pa.

,.459'A.2d, 717 '(1983), relied upon by the. defendants, does-nop derogate from_.this result.-;That case involved'a petition n, V lh . . .. .

Ebyythe' Authority invoking.the original? jurisdiction of the.

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Commonwealth Court .for an order -as -in the nature .of writ of .

" mandamus:. directed to'the Commonwealth Department;of Transportation, the s'cretarv of Transportation,ithe.. Governor and the. General e -

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' Assembly. All filed preliminary objections which were sustained N; .. .

[$ f,the Commonwealth Court dismissing"the petition before it and rema$ ding the entire matter to the Board of Clains. On petition

[fUrreviewtotheSupremeCourt it reversed the order of the

-JBe "l ' Commonwealth Court and directed that the Commonwealth Court y) ear the petition for review as in the nature of a writ of mandamus.

)[,/h/4fn;so.doing.theSupremeCourt did sustain the preliminary ob-

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'jections filed on behalf of the General Assembly only on the grounds of the constitutional provisions of separation of powers. In so doing the Supreme Court stated as follows:

"However, in. focusing solely upon appellees'-

alleged breach of contract to1 construct the

-i PulaskiLHighway, the Commonwealth Court mis -

perceived-the scope of the Authority's. petition for review. . That petition seeks to restrain appellees' alleged 2 interference with-the performance of.the Authoritts statutory duties and,to enforce appellees' compliance with their-statutory duties under the interstate compact,

• , .not merely to compel appellees' performance of their duties under a construction contract."

Here, of course,mthe plaintiffs seek only.to compel t q;U performance.of-the contracts-in question, and not to reau' ire

-$that the Board of County Commissioners exerci.se their legislative c

. functions in any way:at all.

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Defendants next contend that. counts 6-and 7 of PECO's l .#- ,

2 tcomplaint-must1be dismissed for failure toistate a:causeLof' yo;.f" ac,t ion . .In count.E.PECO. seeks specific performance ofithe water fe .

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gj@" .' sales agreement between he Authority,' Bucks County-and, b Montgomery'CountyJof January14,<1981, and in count 7 danages

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'.4-L T .for breach of that agreement. It is the contention of the s.

defendants that PECO has no standing to seek such relief because Lit is-not a party to such contracts. PECC claims standing based

- on the concept of third. party beneficiary.

In view of our finding that the contract between PECO and the Authority'is a valid and binding one, we are not at all certain that it is necessary in this opinion to determine PECO's rights to enforcement of or damages upon the breach of the

. water sales agreement. However, _as we have already found, the water-sales agreement is but one part of the entire project with which we are concerned although, as with the contract between PECO and the Authority, an integral part thereof. Furthermore, as-we have observed, the North Wales and North Penn Authorities have likewise intervened in this matter and have been granted leave to file amended complaints essentially the same as that of?PECO's. 'They, of course, derive ( their rights from the water sales 1 agreement itself. It would be difficult to conclude, regardless/of_PECO's rights, that they do not qualify as third

. party' beneficiaries under the concepts enunciated in Guy v.

- Liederbach, 501LPa. 4 7, 4 59 A. 2d 744 (19 8 3) .

- Although it has been argued.that-PECO'has no right.toulitigate the merits of this : contract, clearly:these two authorities have, add we have heard

noLargumen't'to the effect that.this contract is in any_way.-

unl~awfulLorLultra: vires'with respect to them. As such, we find

'herein*thatctheswater sales contract:ofsJanuary 14, 1981 is a

law f u.l f one .

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n As far as the question of s. whether it should be specifically

--enforced or damages awarded for its breach, those matters are

- prematureLat this stage. That contract has not been breached, at least not on this record. Therefore, thepreliminary objections to counts'-6 and 7 of.PECO's complaint are denied.

Count 3 of PECO's complaint asserts a claim for tortious interference with its contractual relationships. It is based

- upon this claim that defendants Cepparulo, Elfman, Eisenhart and Carluccio have been joined as parties-defendant. Basically, it is asserted that-Cepparulo, Elfman and Eisenhart were appointed to the Board of the Authority in January of this year by..the County Commissioners'for the express purpose of terminating the various obligations of'the Authority and stopping

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construction'of the. pump. It is further asserted that those

. three' Board members: caused the appointment of Carluccio, an avowed. opponent.to the. pump as.the executive director of the? Authority. In:this regard we are satisfied that the preliminary objections of the-Authority are well taken, that count 33.of the complaint ~must be dismissed and the cause of' action against 'these four: individuals likewise dismissed.

The tort of' inducing breach of contract is defined EasJ: inducing or otherwise causing a third _ person not'to' perform-

.a contract with~another, or-notsto enter;into or continue a-

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Lbusinessfrelationship withJanother, without.a privilege to.do-so.

Glazer v. JChandler , ~414' Pa.-- 304 (1964). RecoveryEforfsuch

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a tort in Pennsylvania has involved a defendant's interference z

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~with;known_ contracts or business relations existing between

. third parties and the plaintiff. However, where the allegations and evidence only disclose that the defendant breached his own contract with the plaintiff _and that as an incidental consequence thereof plaintiff's' business relationships with third parties has been affected, an action _ lies only in contract for defenaant's direct breaches of contract and consequential damages recoverable, if any, may be adjudicated only in that action. Glazer v. Chandler, supra. Therefore, two prerequesites to liability must exist; the absence of a privilege and the action by a third person. There must be a third person who induces the breach. It is not a claim which.can be made by the parties to a contract against each other.

No person or company can be guilty of inducing himself or itself to breach ~his or:its own contract. .See Wells v. Thomas, 569 Fed. Sup. 426 (E.D. Pa. 1983), construing Pennsylvania law.

As such,,we are. satisfied that if the Authority cannot be found liable-for tortious interference of its own contracts

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with PECO>neither can its agents be held liable. Nowhere'is it asserted;that th'e four individuals acted as anything other than agents.and-representatives of the Authority. They'were acting at all'~timesLin their official capacities, even if we find that e-th'e :descriptivefterms o'f " intentionally, or maliciously, mce

. found ' to - existJ. Notwithstanding, no. third party can be said to chaveLinterfered with theJcontractual relationship now!before us.

Wells-v. Thomas supra.

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As:-inLWel=ls'v. Thomas, supra, in any-event,-the cause 1 *

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.of action against the four individuals is merely redundant of s,

PECO's-claim against the Authority on their contract. There-fore,.the preliminary objections te count 3 of the complaint are sustained and the complaint enbodied therein against the

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four individual defendants is dismissed.

D'efendants . contend that the complaint of PECO should be diar.issed-for lack of. jurisdiction-in a court of equity on the grounds that PECO has an adequate remedy at law, or at the very

-least,'that it should be transferred to the law side of the court.

The adequate remedy. at law :ontended for by the defendants obviously is the right to recover damages for breach of its contract with the: Authority.

A suit in equity-will not lie where a plain, adequate and complete remedy at law may be had. Stuyvesant Insurance Co.

v. Keystate-Insurance Agency, Inc., 420 Pa.578 (1966). How-ever, a court of equity has-jurisdiction and in furtherance of' justice will afford relief =if the statutory or legal' remedy is not adequate, or if equitable relief-is necessary to prevent firnnerable' harm. Pennsylvania' State Chamber of Commerce v.

(Torquato, 386.Pa. 306 (1956). The mere fact that.a remedy may-4  : exist is not' sufficient. The remedy must-be-adequate and-complete, c

Philadelphia Life! Insurance Co. v. The' Commonwealth,.410 Pa. 571

?(1963). Thus, in-order'for equity to refuse relief, it;is not

sufficient thatothe - plaintif f .may have some 1 remedy at law. An ,

existing. remedy at-law to ' induce equity to decline the exercise

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of fits jurisdiction must be an_ adequate ,and s complete one.

from.the' nature and complications of a given case, justice can bestsbe reached by means of the flexible machinery of a court of: equity,.in short where a full, perfect and complete remedy cannot be afforded at law, equ:ty extends its jurisdiction in furtherance of justice. .Fennsylvania State Charber of Cor_5erce v.

Torquato,_ supra. Therefcre, recog.. ::n; that the rere existence of a legal remedy is not always sufficient to creclude equity jurisdiction, a tourt of equit3 may, in the exercise of its discretion, determine whether the 1egal remed; is full,- adequate and complete in

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view of-all the surrounding circumstances and the conduct of the. parties.

'Long John-Silver's, Inc. v. Fiore, 255 Pa. Superior Ct. 163 (1975).

We are not satisfied on the present record before us that PECO doesLhave a full, adequate and complete remedy at law.

Obviously,.if the Authority breaches its contract.and fails to complete'the project and'as a result thereof PECO is denied the water 1it anticipated:as a coolant, it would have'a right against-

,the' Authority for' damages. c:e.would presume that the measure.

.of the damages would be. computed by. determining PECO's. financial-losses as c a result -of its being ~ unable tc operate its nuclear plant at Limerick for whatever period.of time it would take to

-find anialternate sourceiof cooling water, assuming such an alternate. source exists.. .Even if such an alternate source; exists, itimust be recognized thatithe. period of time required to secure the adequateEpermits1fromLthe various administrative agencies Linvolved.. assuming;those-permits can be secured, for the formulation.

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and; drafting offan entirelvinew

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construction:projset and then p; +

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for thc= construction thereof, we are probably talking in terms

ofLanywhere from 2 to 5 years or idhger. Without considering

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whatever loss of profit there may be to PECO for denial of its

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-usciof the, Limerick plant, a matter of considerable speculation atithis stage.cf the came, but merely considering that the con-

, struction costs.of Lir.erick arc something in excess of 3 billion 2 dollars, the cost cf carrying and satisfying that debt service is-alene staggering. The Authority itself is of limited financial

--re source s . Of course <there are the bonds issued of approximately 32 million dollars, a significant poriion-of which has already 5

been. spent for construction and other fees and costs. In' addition, i

of course, the Authority owns the two parks and reservoirs which-thave been built. .Even assuming that a money judgment in favor of PECO could be partially satisfied by a sheriff's sale of the

. county ;.pa rks , it is questionable at best whether there is sufficient value to satisfy:the. kind.of judgment that PECO can be anticipated to receive in a breach of contract suit of this magnitude.

l Of course,-if the cosnty'rroceeds on its. ordinance 59 tcr take L over' the . project , then.PECO_could.look to the entire taxing!powerfof the county.to satisfy its judgment. "On -

- this -score the aspect cf; an : adequate . remedy of law and Jits

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Ecorpilarv ofsirrecarable:harmLtakes.'on a.slightly different com-

'Oficourse'this-assumes':that the bond. revenues'will' remain avail -

r able t'o; the ' Authority , ;a '. proposition which Lis' q'ue'stionable at best,:

Dif the project shouldEbe;stopoed and thecbond; trustee-take the' positi'on that a l bond? default has~ occurred.

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' ple xio n . _ We.are now talking about the taxing authority of the s.

JCounty as;the resource to be used in terms of satisfying a judgment I

in favor of PECO. Of' course, the County, with its taxing authority, has a considerably deeper pocket than the Authority. However, even that_ pocket is not unlimited. Even, however, if the size of the judgment were to be such that the county could conceivably raise such funds by its taxing power, the burden thereupon imposed upon the taxpayers may.very well be unconscionable.

Of course all of these matters are highly speculative at the'present-time. It must be remembered that we are no c.ancerned

~only_with PECO inlthis. law suit. The North Penn and North Wales likewise have interests'in this law suit and they may

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Authorit'ies very well:be irreperably damaged if this project were not completed.

I In their cases, as'well-as that of Montgomery County, it may very

[

well-be that the lost. water is totally irreplaceable. That being the case, their claims cannot1 possibly be satisfied by.a law suit for damages.

Considering'all of these matters and the intricasies.

and complications of them, we clearly are not in a position to decideias.c matt r of preliminary. objection 1and as a matter of-law at'this, time that PECO or the two water' authorities do in>

fac't have adequate remedies at law. Therefore, the preliminary-objections.on this ground are' denied.

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l We turn now-to the preliminary objections to the s.

complaint filed by Daniel J. Sullivan. Actually we are

-addressing preliminary objections'to Sullivan's third amended complaint.

On-November 18, 1983 the Board of Commissioners of the County of Bucks adopted ordinance 59 whereb the county 1 sought to take over the project of the Authority under and pursuant to S18 (A) of the Municipality Authorities Act of 1945, the Act of July- 10,,1957, P.L. 683, 53, 53 P.S. 321 (A).

By the' terms of that ordinance the County likewise-purported to assume lall ofLthe obligations incurred by the Authority with

~ respect:to-the project. It was that Act which inspired Sullivan's suit as in'the-nature of a class action on behalf of all taxpayers of-Bucks County for the purpose of enjoining the. County from1 implementing that ordinance. It is Sullivan's contention :that the' _ County lacks - authority to take over the project. We believe'this contention to be in error and.therefore sustainLthe preliminary objection to sullivan's complaint seeking anHinjunction on this ground.

'The'Act of~ Assembly in relevant part;provides as follows:

'"If a project shallLhave1been es:ablished undermthis Act by"a Board appointed _by'a-

-municipality orgmunicipalities, which project

-is'ofcafcharacter which-the_ municipality aor; Emunicipalitiesihave' power'_toJestablish,' maintain

'or loperate, andisuch municipalityo or muni - l cipalities desire t to acquire :the ; same, .it or. q the'y may-by. appropriate ~ resolution:or ordinance-  :

, adopted /by'the. prop'erfauthorities signifyLi'ts l b Lor their desire ~to do so,.and thereupon the

!" N ' authorities shall convey by appropriate D. ' instrument'said uproject a to such municipality.

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. 1 cr municipalities, upon the assumption by the latter of all the obligations incurred by the Authority with respect to that project."

The ordinance enacted by the Board of County Commissioners is in compliance with this Act of Assembly. Sullivan contends, however, that'the County lacks the right to take over this project under these circumstances and relies on County of Mifflin'v. Mifflin County Airport Authority, Commonwealth Ct. 437 A.2d 781 (1981). In that case the. county Commissioners of Mifflin County attempted to assume control over the Mifflin County- Airport which had been established and was operated by the Mifflin County Airport Authority which had previously been created by the Mifflin County Board of County Commissioners.

When the Authority refused to convey the assets of the airport

-to the County pursuant to the ordinance the County Commissioners instituted an action in mandamus. The lower court concluded that

the County did not have a clear legal right to such a property transfer and, therefore, denied the relief sought in the action in mandamus. On~ appeal the Commonwealth Court affirmed holding that_.the County had failed.to establish a clear and specific legal right in it and a corresponding' duty in the defendant Authority to convey the property. The Commonwealth Court found

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that a clear and 1= cal righ't-in-the.: plaintiff was lacking because'of :certain specific provisions in the outstanding bond indentures whichLfinanced the construction of the airport, as well as a , lack of , show'ing of complaince' with the Local Government Unit Debt Act,;the Act.of1 April'28, 1978', P.L. 124, No.'52,.

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4-E .51',.53-.P.S. 6780-1 et seg. Therefore, it was held that the s.

e provisions of 514 of the Municipality Authorities Act

.barredl the transfer. ;In these respects that case is dis- t t'inguishable from this one. Rather, this case is indistin-guishable;in.these1 respects from Lower Southampton Township ev . Lower Southampton Township Municioal Authority, 39 Bucks

' County ~ Law Reporter, 74 (1982) wherein this court (Beckert, J.)

. . distinguished the Mifflin County case.

In the Mifflin County case the trust indentures

'themselves-specifically provided.that the . County's right to acquire the assets of the Authority were limited to the Authority's failure, neglect or cessationLof operation of the airport. The trust indentures in that case further provided that the Authority will not " sell, ~ exchange, -lease, pledge or otherwise dispose of-or' encumber the airport or any part thereof." The trust indentures in :this case . bear no provision whatsoever specifically barring

[ the County'from acquiring.the assets of the. Authority.- The

~ indentures do1 provide, as in the Mifflin' County case, that the Authority'will'not sell,. exchange, lease, pledge or otherw'ise dispose or-encumber-the reservoir and park system or'any part-thereof or 'the: receipts and revenuesL from the reservoir and parkosystem. 'See 59.08 of the Trust Indenture. However, without

-the provision barring the-County from acquiring:the assets of the

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Authority, as in!the Mifflin County case', 'the~ provisions 1of

, 359.081of;th'e bondlin' denture in th'is: case!cannot reasonably be as '

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construed to bar a takeover by the County. First of all, what would occur by virtue of the implementation of the Ordinance would not constitute a sale, disposition or encumbrance of the reservoir and park system. Secondly, and of greater sig-nificance, the bond indenture and other documents involved in i this case specifically contemplate that the reservoir and park syster be encumbered for the purpose of producing funds to retire the bonds themselves. As previously noted in this opinion, the reservoir and park system has been leased by the Authority tc the County and it is the rental payments on these leases which furnishes the Authority its only source of income until such time as the project is completed and it is ready to begin selling water. In the interim, these funds represent the sole source of money to pay the interest on the outstanding bonds.

Furthermore, these same leases have been pledged by the Authority to the bond trustee as collateral for the bonds themselves. As such, it is the bond trustee who collects the rent directly from the County. Therefore, it is contenplated by the bond indentures that the assets of the Authority be encumbered as partial collateral for the bonds themselves. Thus, it would be pure soohistry to argue that this provision in the bond indenture wouid in some way prohibit the County from acquiring the assets of the Authority pursuant to S18 (A) of the Municipality Authority Act.

!!aving found , therefore, that there is no encumbrance in the trust indentures to the County acquirina the assets of the Authority without the prior repayment of the J

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' bonded indebtedness, there is no occasion for the application s.

of 514 of the Act. Clearly,-without the obstruction of the bonded indebtedness, 5518 (A) and 14 of the Municiaplity Authorities Act can be read together and consistently with one another.- The-distinction between these two sections is L apparent on their face and was graphically described in the LewercSouthampton Township case. Section 15 (A) addresses the circumstance wherein the creating governing body determines toftake over the project-from an Authority it has created and,

. thereby, assumes all the debts and obligations of tre Authority with respect to that project. Section 14 addresses the situation where the municipal authority, having completed-its mandate and paid its debts determines to divest itself of some or all of its projects by conveying them.to the governing body. Obviously, l

L -the Legislature recognized that a municipal authority should not l

be' permitted to foist its debts and obligations upon the governing body _without its consent.'. Therefore, 514 requires that a municipal' authority may divest itself of its project.only after

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u -it'has paid and d'ischarged all' bonds issued by it. However, no

such' requirement isJfound in S18 (A)' leaving it to the discretion-of the governing'bodyfto: determine whether to acquire'the~ assets

--and the liabilities that;go with.them. Furthermore, and-finally Lin this respect, in.theJease beforeLus the County had complied

'with the' requirements of the Local. Government-Unit Debt Act.

' Having determined ~that the County Commissioners;have.

legalJright.to'enactLthe~ ordinance and'take over the assets of _l 1

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' thel. Authority, we: are satisfied that%e may not enjoin the County-

from implementing.that ordinance. Although Sullivan's complaint t 4

. alleges thel.imtention of the County Commissioners to ter:,inate the' project-thereby breaching.their contractual obligations, i

and' accepting'those' allegations as true for purposes of these 1 . preliminary objections, we still do not believe that they can support an injunction: enjoining the County fro.T implementing its b

oEdinance. Of: course,-both the United States and Pennsylvania ConstitutionsLprohibit any legislative action by the State or 4

its' units-of local.-government which impair the integrity of existing contracts.. See United States Trust Company of New YcrP.

v. New Jersey,-431 U.S. 1,-97 S.Ct. 1505, 52 L.-Ed. 2d 92 (1977);

Pennsylvania Labor Relations-Board v. Zelem, 459-Pa. 399 (1974)

,;and Helicon Ccrp. v. Borough'of'Brownsville, Co conwealth Ct.

L 1,I449 K.2d 118 (1982). However, the ordinance'specifically e

provides that the' County shall; assume all obligations of the

,) Authority. commensurate _with the assets. The obligations'would incibds the. contractual obligations, and'as previously,noted

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• .h'erein, the County will',.. perforce,; assume..any anc. all. liabilities

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. l:fc6breachlthereof .

tRegardless of wh'at we may believe the'metives of the

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w 4 4' [ County' Commissioners-to'be, we believe that.t'o enjoin'the-Board;of County 1 Commissioners from.imolementing.its; ordinance-

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' & wouldEconstitute an.uhconstitutional[ intrusion"by this.;Couit g, ' i Jupon 'the 'legis.lativeT and executive <f un'etions ofcgovernment. '

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2 RItris presumed that municipal officers act properly for the s.

public1 good. Robinson'v. Philadelphia, 400 Pa. 80 (1960) and Hyam v.' Upper' Montgomery Joint Authority, 399 Pa. 446 (1960).

Courts willinot sit-in review of municipal actions involving discretion,-in'the absence of proof of fraud, collusion, bad (faith 1or arbitrary action equating an abuse of discretion.

Slumenschein v. Pittsburgh Housine, Authority, 379 Pa. 566

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-(1954). In the absence of. proof of fraud, collusion, bad faith or abuse fof power, courts do not inquire into the wisdom of

~ municipal-actions and' judicial discretion should not be sub-stituted for administrative discretion. Goodman Appeal, 425 Pa.

23' '(1967);-Parker v. Philadelphia, 391 Pa. 242 (195S and Webber

v. Philadelphia, 437 Pa. 179 (1970).

1No court-has the power to strike down a statute. except for constitutional reasons, even where it believes the statute unwise or. productive.of socially undesirable'results. Estate of

.Armstrong v. Philadelphia Board of Probation, Commonwealth Ct.

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,:405'A. 2d 1099 (1979). 'The judiciary:should not intrude

-into the legislativelarca of government unless it is demonstrated-that the. legislative 1 body, whether it:be at the State level or

' municipal,^has acted in-a-manner violative of'the Constitution, Acts' of.the General Assembly or-the organic law of1the municipality-or. inca' manner?Nherein theilegir.lative body'lacksithe. power or <

authority to act. 4The. wisdom of the legislative-.act is notLwithin' )

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the= court's judgment. ;Mastrangelo v. Buckley, 433;Pa. 352f(1969). '

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I It iis not sufficient that opponents isagree with the wisdom of the legislative body's action. A court of equity will not sub-stitute its determination of what may be wise for the decision

.of the appropriate governmental body, absent a showing of bad

~ faith or abuse of power. Parker v. Philadelphia, supra. The question of the wisdom-of the' acts of a legislative body are

not for.the court, there being a presumption that the legislative officials act lawfully in the exercise of'their discretion. We f may interfere and relieve.against oppresive or arbitrary action or abuse of discretion, Breinig v. Allegheny-County, 332 Pa. 474 (1938) but we may not intervene so long as noxrnstitutional provision is violated or discretion abused,

l. regardless-of the hardship of a particular case or whether our opinion as'to what the law ought to be-coincides with that of L

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'the Legislature. 'Chester School District's Audit, 301 Pa.

203 (1930).-

I 'The role of the. judiciary in scrutinizing legislation

-is limited. We.may not, at the. invitation.of a' disgruntled taxpayer;or _ taxpayers,: reassess the wisdom and expediency of alternative methods of solving public_. problems. It is.the i

province ofEthe Legislature not-the judiciary to determine the means necessary to confront and: solve public problems. Our inquiryLis limited-to a' determination of whether the means e

l selected are so demonstrably irrelevant to the policy of the.

' legislature as to be~ arbitrary and irrational. Tosto v.

Pennsylvania Nursing Home Loan Agency,1 460 Pa. 1 (1975).. As k _. .____:..__._._-...a--

a was stated in Leahey v. Farrell, 362s .P a . 52 (1949):

"Under the system of division of governmental powers it frequently happens that the functions of one branch may overlap another. But the successful and efficient administration of government assumes that each branch will cooperate with the other. As was said bi the late Chief Justice Moschzisker (when a Judge in Ccmmon Pleas No. 3 of Phila-delphia) reported in Conntnwealth v.

Mathues, 210 Fa. 37; 400, 59 A. 961.

. . . the presumption always is that public officers will perform a public trust, not that they will default therein er abuse the trust, and we prefer tc believe that the legislure have performed, and will cibtinue to perfcrm, their trust, rather than to stanc in any fear of a wrong being attempted at some time in the future by one branch of the government against another, even if the power to commit such a wrong be admitted to exist, which we thoroughly believe is not so '" (Italics in original)

Sullivan contends that the action by the county is barred by the provisions of SS4, 12 and 13 of the Municipaliw Authorities Act.This contention is premised upon a misreading of each of these sections.

Section 4 (C), 5 3 P.S . 306 (C),provides that the Authority shall have no power to pledge the credit or taxing power of the Commonwealth or any political subdivision thereof nor shall any of its obligations be deemed to be obligations of the Commonwealth or of any of its political subdivisions. This is not a case of the Authority in any way pledging the credit or taxing power of the County or the Commonwealth but rather a matter of the County opting to assume the assets and liabilities I of the Authority. Obviously, the construction of this section A

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contended for by--Sullivan would render 518 ;A) , previously s,

construed herein, totally meaningless.

Section 12, 53 P.S. 315,provides in relevant part as

.follows:

"That the Authority shall not be authorized to do anything which will impair the security of the holders of the obligations of the Authority or violate.any agreepents with them or for

! 'their benefit."

Once again, obviously, the Authority is not doing any-thing in the matter before us. We are concerned here with the action of the County in proceeding consistently with Sie (A) of

.the Act. Nothing contained therein is in violation of 512.

l Lastly, S13, 53 P.S. 316,provides that "the Connon-wealth" shall not alter or limit the rights and pcwers of the Authority in any manner which would'be inconsistent with the continued maintenance and operation of the project, or the improve-L ment thereof, or. which would be inconsistent with the due l

-performance of any agreements.between the Authority and any such Federal agency. Obviously, nothing is contemolated by the

" Commonwealth" in the matter'before us.

Sullivan contends that somehow he has a cause of action as in the nature of'a civil' rights suit under 42 U.S.C

1983. We consider this contention patently frivolous. That Act of Congress securesfto the citizens of the United States a

'cause of action;for deprivation of any right, privilege or immunity L -secured by the ConstitutionLand laws.of the United States if infringed-or impaired bysany person acting.under color of any

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-statute, ordinance,: regulation,: custom, or usage of any State V. . . - . - - _ _ _ - - _ _ -- ._---_ _ __. _ _ _ __ _ __ _

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a or territory of the United States. Although Sullivan pleads generally a violation of some rights under the 5th and 14th amendrents of the United States Constitution he fails tc set forth with any specificity which ones he includes. We are unable to divine mny constitutional rights affected by the action of the Board of County Cermissioners in enactin:; ordinance :;o . 59.

Therefore the preliminar. cbjections on this  : ant arc sustained.

Lastly Sullivan's contention that the resolution f the Board of County Corr.issioners of February 8, 1984 indern;fying the Authority board members is a violation of Article 9, 59 of the Pennsylvania Constitution is without merit. As earlier stated in this opinion, that section applies only tc transactions with purely private enterprises. See Rettig v. Scard of County Commissioners, 425 Pa. 274, 288 A.2d 747 (1967) and Appeal of German, 27 Commonwealth Ct. 105, 366 A.2d 311 (1976). Obviously, the Authority is not a purely private enterprise, but rather a creature of the County itself.

We need not address the cuestion of whether Sullivan or the taxpayers of Bucks County as a whole are third party beneficiaries to the various contrace entered inte. We believe that Sullivan has standing as a taxpayer with respect to this law suit because of the great amount of tan, dollars which may eventually be involved. A taxpayer may seek to enioin the wrongful or unlawful expenditure of public funds even though he is unable to establish any injury other than to his interest as a taxpayer.

Price v. Philadelphia Parking Authority, supr1. We can see no difference between that pronosition and a lawsuit which sechs a 3

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-remedy _ purported to. avoid the loss'df public moneys through anticipated litigation. Therefore, although we will sustain the-preliminary-objections'to most of Sullivan's third amended

. complaint, we will deny the-preliminary objection to the extent ,

that he seeks the same relief as that of PECO and the Municipal

- Authorities of North Penn and Nortn Wales.

l Lastly _, we do not believe that Sullivan's third amended i

i complaint states a cause of action against the individuals therein named for the same reasons as previously set forth in PECO's amended complaint. Therefore, the conplaint against all r

-of the individuals will be disnissed.

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In summary therefore we have deter.minen herein that'

- with the exception of count 3 of the complaint of PECO, the preliminary objections are denied, dismissed and overruled...

With regard to count 3, the preliminary objections <

are custained, that count is dismissed and the individual defendants therein named:are dismissed as defendants.

With respect to the original complaint of Sullivan,.the preliminary objections to the, entirety of that complaint are

-sustained for reasons herein set forth and'that complaint is

~ dismissed. -However,'Sullivan as the original ~ plaintiff and in

_his capacity as a taxpayer shall be considered hereafter'as i

! .a plaintiff ~in the. complaints of PECO and the. Municipal Authorities of North'Penn and North Wales.

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ORDER AND NOW, to, wit, this s ay of 1984, itDis'hereby ordered that the preliminary objections of the j Neshaminy Water Resources Authority to count 3 of the complaint i

Lof. Philadelphia Electric Company are-sustained, that count is 1 dismissed and the individual parties named therein are dismissed as. defendants. In all other respects the preliminary objections to the complaint of Philadelphia-Electric Company are denied, dismissed and overruled with leave to defendants to file answers within twenty-(20) days of'the date hereof.

The preliminary objections to the third amended _ complaint

~of, Daniel.J. Sullival'are granted and that complaint is dismissed I in its entirety. . Daniel J. Sullivan, in his-capacity as taxpayer, r~

, shall be considered as.a party plaintiff in the complaints of

. Philadelphia Electric Company and the North Penn and North Wales Municipal Authorities.

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BytheCour!

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P.J.

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