MEMORANDUM OPINION BY JUDGE SIMPSON

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

In this appeal, Erie City Water Authority a/k/a Erie Water Works (ECWA) asks whether the Erie County Court of Common Pleas (trial court) erred in interpreting Section 5607 of the Municipality Authorities Act (Act), 53 Pa. C.S. §5607, and compelling the parties to submit to binding arbitration pursuant to their contracts rather than presiding over this matter as a statutory rate dispute. Upon review, we quash this appeal as interlocutory.

In November 2003, ECWA and Millcreek Township Water Authority entered into a water services agreement. Approximately three years later, Summit Township Water Authority entered into a similar contract with ECWA for the same type of service. Under the contracts, ECWA agreed to sell water to Millcreek Township Water Authority and Summit Township Water Authority (collectively, the Township Authorities) as bulk consumers so that the Township Authorities could, in turn, provide water service within their incorporating municipalities. Thereafter, in 2011, a dispute arose between the Township Authorities and ECWA concerning the rates ECWA charged.

Subsequently, the parties submitted to mediation as required by their contracts; however, this failed to resolve the dispute. As a result, the Township Authorities filed a claim for arbitration with the American Arbitration Association (AAA) under Section 7.04(b) of the contracts. ECWA objected and claimed the dispute was not subject to arbitration. Thereafter, AAA stayed the arbitration pending a judicial resolution of whether the claim could be arbitrated.

The Township Authorities then filed a complaint with the trial court seeking to compel arbitration based on the terms of the contracts. Following ECWA's answer, the Township Authorities filed a petition for a rule to show cause requesting the trial court order arbitration based on the pleadings. ECWA filed its response conceding no material facts remained in dispute.

The questions before the trial court were (1) whether subsection (d)(9) or (d)(19) of Section 5607 of the Act applied to the dispute, and if applicable (2) whether the contracts required the parties submit to arbitration. Section 5607 of the Act states in pertinent part:

(d) Powers. --Every authority may exercise all powers necessary or convenient for the carrying out of the purposes set forth in this section, including, but without limiting the generality of the foregoing, the following rights and powers:

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(9) To fix, alter, charge and collect rates and other charges in the area served by its facilities at reasonable and uniform rates to be determined exclusively by it for the purpose of providing for the payment of the expenses of the authority, the construction, improvement, repair, maintenance and operation of its facilities and properties and, ... Any person questioning the reasonableness or uniformity of a rate fixed by an authority or the adequacy, safety and reasonableness of the authority's services, including extensions thereof, may bring suit against the authority in the court of common pleas of the county where the project is located.... The court of common pleas shall have exclusive jurisdiction to determine questions involving rates or service. ...


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(19) To enter into contracts to supply water and other services to and for municipalities that are not members of the authority or to and for the Commonwealth, municipalities, school districts, persons or authorities and fix the amount to be paid therefor.

Section 7.04 of both contracts states in pertinent part:

(a) If any dispute arises among the parties hereto, the dispute shall be referred . . . for mediation. . . . The mediation process hereunder shall be completed within ninety (90) days. . . .

(b) If any dispute arises between the parties hereto that cannot be satisfactorily resolved by mediation . . . other than matters in which the Public Utility Commission or any other court or administrative agency may have exclusive jurisdiction, the subject of such disputes shall be submitted to the commercial dispute section of the

American Arbitration Association for resolution ... the arbitration award or decision shall be final and binding on the parties.

After briefing and oral argument, the trial court ordered the parties to submit to arbitration. ECWA filed a notice of appeal, and the trial court directed it to file a Rule 1925(b) statement. ECWA complied, challenging the trial court's interpretation of Section 5607 of the Act and the contracts. Specifically, ECWA argued Section 5607(d)(9) of the Act applied, and the trial court had "exclusive jurisdiction" over the dispute. As such, ECWA contended both the Act and the contracts required the parties to litigate the dispute before the trial court and not an arbitration panel.

In its well-reasoned 1925(a) opinion, the trial court held Section 5607(d)(19) of the Act applied to the dispute at issue; thus, the suit should be arbitrated as required by the contracts. The trial court, citing Beaver Falls Municipal Authority v. Municipal Authority of the Borough of Conway, 689 A.2d 379 (Pa Cmwlth. 1997) and Township of Raccoon v. Municipal Water Authority of the Borough of Aliquippa, 598 A.2d 757 (Pa. Cmwlth. 1991), reasoned that Section 5607(d)(9) applies when a municipal authority provides water services within its service area under its statutory authority. However, when a municipal authority provides services pursuant to a contract with a third party, such as another municipal authority, Section 5607(d)(19) is applicable. Furthermore, it reasoned, pursuant to this Court's holding in Township of Aston v. Southwest Delaware County Municipal Authority, 535 A.2d 725 (Pa Cmwlth. 1988), where Section 5607(d)(19) applied, the contracts controlled the parties rights and duties.

The trial court also observed that because the General Assembly included "exclusive jurisdiction" language in Section 5607(d)(9) of the Act but not in Section 5607(d)(19), it was the General Assembly's intent for the language not to apply to third-party contract disputes. Thus, determining the parties freely contracted for the sale of water resources and Section 5607(d)(9) of the Act did not apply, the trial court considered the contracts' language. In doing so, it determined the dispute was not within the exclusive jurisdiction of any particular agency or court, and therefore, the contracts required the parties' to resolve the issue through arbitration. ECWA's appeal is now before this Court.

Although not directly addressed by the parties, we first consider whether the trial court's order compelling arbitration is appealable. Commonwealth v. Parella, 834 A.2d 1254 (Pa. Cmwlth. 2003) (a court may raise the issue of subject matter jurisdiction on its own motion at any time). The issue of whether an appeal is an appeal of a final order, an interlocutory appeal by permission or as of right, or a permitted appeal under the collateral order doctrine is a question of whether the appellate court has jurisdiction. Rae v. Pennsylvania Funeral Dirs. Ass'n, 602 Pa. 65, 977 A.2d 1121 (2009).

"[T]here are few legal principles as well settled as that an appeal lies only from a final order, unless otherwise permitted by rule or by statute." McCutcheon v. Phila. Elec. Co., 567 Pa. 470, 478, 788 A.2d 345, 349 (2002). An order directing the parties to submit to arbitration, whether statutory or common law, is not a final order but is interlocutory and not immediately appealable. Rosy v. Nat'l Grange Mut. Ins. Co., 771 A.2d 60 (Pa. Super. 2001) (citing Campbell v. Fitzgerald Motors, 707 A.2d 1167 (Pa. Super. 1998)). Although a party may appeal an order denying an application to compel arbitration under the Uniform Arbitration Act, 42 Pa.C.S. §§7301 - 7320, no corresponding authority permits an appeal of an order compelling arbitration. Maleski v. Mut. Fire, Marine & Inland Ins. Co., 534 Pa. 575, 633 A.2d 1143 (1993).

Here, ECWA appeals an order compelling the parties to submit to arbitration. Therefore, the trial court's order is not a final order. See id. As such, this Court does not have jurisdiction pursuant to 42 Pa.C.S. §762(a)(4)(i) as asserted by ECWA in its statement of jurisdiction in its brief.

Furthermore, ECWA did not seek to appeal this interlocutory order by right or permission or assert grounds for this Court to apply the collateral order doctrine. Moreover, ECWA's appeal does not fit the narrow requirements for either an interlocutory appeal by right or the collateral order doctrine. See Pa.R.A.P. 311, 313. Rae. Specifically, under the collateral order doctrine, while the interpretation of Section 5607 of the Act may be separable from the Township Authorities' claims against ECWA, ECWA's appeal does not invoke deeply rooted public policy concerns, and would not be irreparably lost if not addressed at this time. See Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209 (1999). Thus, the trial court's order is not appealable by right or as a collateral order.

In short, we lack jurisdiction to hear this dispute and may not consider the merits of ECWA's appeal at this time; therefore, we quash ECWA's appeal.

/s/_________

ROBERT SIMPSON, Judge ORDER

AND NOW, this 27^th day of June, 2012, the appeal of the order of the Court of Common Pleas of Erie County is QUASHED.

/s/_________

ROBERT SIMPSON, Judge

Pa.R.A.P. 313.