The Boro of W. Chester, Aplt. v. PASSHE

[J-56-2024] [MO: Brobson, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


 THE BOROUGH OF WEST CHESTER,                   :   No. 9 MAP 2023
                                                :
                      Appellant                 :   Appeal from the Commonwealth
                                                :   Court decision dated January 4,
                                                :   2023 at No. 260 MD 2018.
               v.                               :
                                                :   ARGUED: September 11, 2024
                                                :
 PENNSYLVANIA STATE SYSTEM OF                   :
 HIGHER EDUCATION AND WEST                      :
 CHESTER UNIVERSITY OF                          :
 PENNSYLVANIA OF THE STATE SYSTEM               :
 OF HIGHER EDUCATION,                           :
                                                :
                      Appellees                 :


                     CONCURRING AND DISSENTING OPINION


JUSTICE McCAFFERY                                              DECIDED: April 30, 2026


       At the macro level, this is a case about the cost of public infrastructure and how

that cost is, or should be, shared. At the granular level, it is a case about whether the

Pennsylvania State System of Higher Education (PASSHE), and specifically West

Chester University of Pennsylvania (collectively, University), is required to contribute to

the cost of public stormwater management services in the Borough of West Chester

(Borough). Because I disagree with the Majority’s determination that the Borough’s

“stream protection fee” (Stormwater Charge) is a tax from which the University is immune,

and I conclude an issue of material fact remains unaddressed, I would reverse the order

of the Commonwealth Court and remand for further proceedings. Nevertheless, I agree

with the Majority’s determination that the Commonwealth Court properly allocated the
burden of proof when it ruled upon the cross-applications for summary relief. See Majority

Opinion at 10 n.7. Thus, I concur in part and dissent in part.

       Generally, a tax is a revenue producing measure authorized under the

government’s taxing power. It is an “enforced contribution to provide for the support of

government.” United States v. La Franca, 282 U.S. 568, 572 (1931). “The classic tax is

imposed by a legislature upon many, or all citizens[. It] ... raises money, [is] contributed

to a general fund, and [is] spent for the benefit of the entire community.” San Juan Cellular

Telephone Company v. Public Service Commission of Puerto Rico, 967 F.2d 683, 685

(1st Cir. 1992) (citations omitted). A fee, on the other hand, is a measure to cover the

cost of administering a regulatory scheme or to provide a service under the government’s

police power. See City of Philadelphia v. Southeastern Pennsylvania Transportation

Authority, 303 A.2d 247 (Pa. Cmwlth. 1973).

       “Taxation is a legislative function, and [a legislature] … may act arbitrarily and

disregard benefits bestowed by [a g]overnment on a taxpayer and go solely on ability to

pay. … A fee, however, is incident to a voluntary act, e.g., a request that a public agency

permit an applicant to practice law or medicine or construct a house or run a broadcast

station.” City of Philadelphia v. Pennsylvania PUC, 676 A.2d 1298, 1308 (Pa. Cmwlth.

1996) (citation omitted). If a charge is not reasonably proportional to the value of the

benefit received in return, it is considered a tax. However, if the charge is intended to

cover the cost of providing a service, it is considered a fee — unless its purpose is

primarily to raise revenue. Then, it is considered a tax. See Rizzo v. City of Philadelphia,

668 A.2d 236 (Pa. Cmwlth. 1995). “Fees charged by a municipality for services rendered

are proper if they are reasonably proportional to the costs of the regulation or the services

performed.” M&D Properties, Inc. v. Borough of Port Vue, 893 A.2d 858, 862 (Pa.

Cmwlth. 2006) (citation omitted). In Supervisors of Manheim Township v. Workman




                             [J-56-2024] [MO: Brobson, J.] - 2
(Manheim Township), 38 A.2d 273 (Pa. 1944), this Court held that municipal charges

“based upon contract rather than taxation … must be reasonably proportional to the value

of the product or service received,” and further, charges “imposed without due regard to

that requirement … [are], in legal effect, undoubtedly a tax,” such that “the obligation to

pay it could be created only by the [locality’s] exercise of its general taxing power[.]” Id.

at 276.

       The challenge society encounters in constructing and maintaining any public

infrastructure is determining how to raise adequate funds by the fairest means possible.

To this end, government relies on taxes, fees, and assessments, among other sources of

contribution — each with its own definition and terms of application. Because the lines

between these terms can get blurred, and the consequences of this distortion may lead

to insufficient funding, or an inequitable distribution of the associated burden, we must be

exacting when discerning the proper distinctions between, and assignment of, these

funding resources.

       Relying upon this Court’s decisions in Jolly v. Monaca Borough, 65 A. 809 (Pa.

1907), and Manheim Township, supra, the Majority simplifies the tax versus fee distinction

into a two-part test. See Majority Opinion at 19. “First, the court must determine whether

the municipality is performing the service in a quasiprivate or public capacity.” Id. (citing

Jolly, 65 A. at 810-811). Then, only if the court concludes the municipality is acting in a

quasiprivate capacity, it must consider whether the charge is “reasonably proportional to

the extent of use of value of the service rendered[.]”1 Id. at 20 (citing Manheim Township,

38 A.2d at 276).

1 The Majority relies heavily on the language in Jolly distinguishing actions taken by a

municipality operating in its quasiprivate capacity from those actions taken by a
municipality operating in its public capacity. Neither the Commonwealth Court, nor either
of the parties, cited Jolly or relied upon this distinction. Rather, the argument focused on
whether the Stormwater Charge was “reasonably proportional to the value or benefit
(continued…)

                             [J-56-2024] [MO: Brobson, J.] - 3
       As for the first question — whether the municipality is acting in a quasiprivate or

public capacity — the Majority focuses on the “purpose underlying the municipality’s

participation in the service and the relationship between the municipality and the

recipients of the service.” Majority Opinion at 19-20 (citation omitted). At bottom, if the

municipality is “acting out of duty[] for the public benefit,” it is acting in its public capacity,

but if it is “providing a discretionary service for private emolument[] within the scope of a

contractual relationship,” it is acting in a quasiprivate capacity.          Id. at 20. (citation

omitted). The Majority recognizes that this distinction may be unclear and thus provides

certain factors for courts to consider. The service is quasiprivate if the municipality’s

participation is “discretionary or delegable” or if there is a “competitive private market.”

Id. at 21-22 (citations omitted). Conversely, the service is public if the power “confer[s]

primarily or chiefly from” governmental considerations, that is, if it is “coupled with a

municipal duty” which cannot be delegated. Id. at 22-23 (citations omitted). The Majority

focuses on the “impetus behind the government’s participation in the service[,]” rather

than whether there is a public or private benefit. Id. at 23 n.18. As a final consideration,




received in return for its payment.” Borough of W. Chester v. Pennsylvania State Sys. of
Higher Educ., 291 A.3d 455, 463 (Pa. Cmwlth. 2023); see also Borough’s Brief at 23-24
(explaining that the court was required to consider (1) whether the University realized
“any specific benefits” from it use of the Borough’s System; (2) whether its use of the
System was voluntary; and (3) whether the cost of the Stormwater Fee was proportional
to the benefits the University received) (citing Manheim Township, supra); University’s
Brief at 34 (explaining the “crucial” and “dispositive” question in the “tax vs. fee inquiry” is
“whether the Borough’s Stormwater system provides a discrete benefit to [the University],
as opposed to generally aiding the environment and the public at large”) (citation omitted).
       While I recognize “this Court may affirm the decision of the immediate lower court
on any basis,” I am troubled by the fact that the Majority appears to apply a different test
in the tax versus fee debate than was requested by the parties, or, for that matter,
determined by the Commonwealth Court. Shearer v. Naftzinger, 747 A.2d 859, 861 (Pa.
2000).


                               [J-56-2024] [MO: Brobson, J.] - 4
the Majority explains that a municipality engages its quasiprivate capacity when there is

a contract between the municipality and the recipient of the service. See id. at 23-24.

      Turning to the facts of this case, the Majority concludes that the Stormwater

Charge is a tax for the following reasons: (1) the Borough’s stormwater management

service program arose from its non-delegable duty to manage stormwater runoff; (2) the

service is intended to benefit the general public; and (3) there is no explicit or implied

contract between the Borough and the University for this service. See Majority Opinion

at 25-28. I conclude, however, that the Majority’s approach is overly simplistic and

ignores other relevant concerns.

      Here, we are asked to review a system that charges property owners for

stormwater management services based on the quantity of impervious surfaces on their

property. It may not be a perfect system, but it makes sense — because stormwater

runoff cannot be readily absorbed by impervious surfaces, those surfaces are more likely

to convey contaminants and unwanted waste into our waterways. Thus, impervious

surfaces seem a reasonable indicator of the burden a property’s stormwater runoff places

on a community’s stormwater management system — especially where a more precise

method of measure is not identified.

      It is beyond peradventure that the University derives a valuable benefit by being

able to discharge a certain quantity of its stormwater runoff into the Borough’s Stormwater

Management System. This benefit inures to the University in the form of cost savings

and the ability to use its property for purposes other than stormwater management. This

is true for other landowners in the Borough as well, but the extent of the value to each

landowner varies by factors such as the size of the respective property and the extent of

the impervious surface on it. Although I acknowledge that perceived “fairness,” alone,

cannot be the driving factor in this Court’s decision — especially where the General




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Assembly has spoken on the tax immunity of Commonwealth-owned properties — I

cannot escape noting fairness would otherwise suggest that the University, as a user of

the Borough’s Stormwater Management System, should contribute to the System’s

operation and maintenance.

       Like the Majority, I recognize that the “Borough’s stormwater management service

is prompted, at least in part, by the federal and state mandates imposed on the Borough

itself.” Majority Opinion at 26 (footnote omitted). Nevertheless, these same mandates

make clear that no landowner may simply disregard stormwater flowing from one’s own

property onto another’s. A landowner may not alter the natural flow of surface water by

concentrating it by artificial means and then discharging it onto lower lands. 2 Further, the

University, like any landowner, has a duty to comply with the requirements of the

Pennsylvania Stormwater Management Act, which mandates that “[a]ny landowner …

engaged in the alteration or development of land which may affect storm water runoff

characteristics shall implement such measures consistent with the provisions of the

applicable watershed storm water plan as are reasonably necessary to prevent injury to

health, safety or other property.” 32 P.S. § 680.13. The University has elected to develop



2 As this Court stated in Lucas v. Ford, 69 A.2d 114 (Pa. 1949):


              The owner of upper land has the right to have surface waters flowing
              on or over his land discharged through a natural water course onto
              the land of another, but he may not cut an artificial channel to divert
              that water[.] … He may make proper and profitable use of his land
              even though such use may result in some change in quality or
              quantity of the water flowing to the lower land[.] … If that change is
              not unreasonable in relation to the use, any loss resulting to the
              owner of the lower land is damnum absque injuria[.] … In that
              connection, the upper owner may lay artificial drains in his land
              provided they do not divert the water from its natural course or cause
              unnecessary injury to the lower owner[.]
Id. at 116 (citations omitted).


                             [J-56-2024] [MO: Brobson, J.] - 6
certain portions of its property including the installation of impervious surfaces that

contribute, and in some cases exacerbate, stormwater runoff.               Because of these

decisions, the University is required to take efforts to mitigate against any increased

stormwater runoff and attendant drainage that may result therefrom. These efforts could

include the design, installation, operation, and maintenance of its own system. By using

the Borough’s system, the University gains a discrete benefit in that it does not have to

build its own stormwater management system that fully complies with the Pennsylvania

Stormwater Management Act. The Stormwater Charge, here, serves the purpose of

remedying “the environmental harms associated with stormwater runoff and [holding]

stormwater dischargers responsible for footing the bill[,]” as well as “incentivizing

property owners to reduce the amount of impervious surface on their land and [engaging]

in stormwater management practices that qualify them for credits.” Norfolk Southern

Railway Co. v. City of Roanoke, 916 F.3d 315, 322 (4th Cir. 2019) (emphases added).

       Accordingly, while the Borough is acting out of a duty to protect the public from

stormwater runoff, the University also receives a discrete benefit from the Stormwater

Management System. Indeed, the University’s Associate Vice President of Facilities,

Gary Bixby, confirmed during his October 2020 deposition that the University’s own MS4

permit was “at least in part, predicated upon the ability to discharge storm water though

the Borough-owned system[.]” Deposition of Gary Bixby, 10/13/2020, at 223 (R.R. at

816a). Without use of the Borough’s system, the University would be unable to manage

its stormwater runoff on its own. While the Majority mentions the purported benefit of the

service to the recipient (or, as it finds here the lack thereof) as a relevant factor, it hyper-

focuses on the underlying purpose of the Ordinance and ignores this critical benefit the

University receives. The Majority also fails to consider the corresponding impact of its

decision which will require the Borough taxpayers to foot the bill for the University’s use




                              [J-56-2024] [MO: Brobson, J.] - 7
of the Borough’s system, thereby escaping responsibility for the legislatively required

remediation of stormwater runoff.

       The Majority finds additional support for its conclusion that the Borough is acting

in its public capacity by the “apparent lack of a contractual relationship between the

Borough and the landowners subject to the Stormwater Charge.” Majority Opinion at 27.

It cites the following factors: (1) stormwater management services are not the type of

service property owners generally seek out; (2) those properties that “lead to the greatest

proliferation of runoff are not the same properties that will suffer the greatest

consequences[;]” (3) the landowners do not take any affirmative action to use the

stormwater system; and (4) the Ordinance imposes the Stormwater Charge on developed

properties even if they are only “indirectly benefitted by the Borough System[.]” Id. at 28-

29, 31. However, I view it differently.

       As explained above, landowners are required to manage their stormwater runoff.

Moreover, they may be civilly liable for injuries caused by a violation of the Storm Water

Management Act. See 32 P.S. § 680.15(c). Thus, whether landowners would generally

seek out this type of service, whether their property is the least affected by stormwater

runoff, or whether they expressly agree to utilize the Borough’s system, all landowners

directly benefit from the Borough’s stormwater system — either by protection from runoff

damage or protection from liability for runoff production.       I recognize the Majority

emphasizes the language in the Borough’s Ordinance that states the Charge will be

imposed on every developed property in the Borough, even if it is “indirectly benefitted”

by the System. Majority Opinion at 30 (citation omitted). While the Majority focuses on

a purported “indirect” benefit, it fails to acknowledge that the Charge is imposed only on

developed properties within the Borough. As explained above, if a property sits within

the Borough, the Stormwater Management System benefits it either by protection from




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runoff damage or protection from liability for runoff production. In my view, the “indirect

benefit” language is simply surplusage.

       Although the Majority recognizes that there is an appeal system in place for the

University to dispute the Stormwater Charge and to receive credits against it, it brushes

aside the availability of this option, concluding, instead, the University has no choice but

to utilize the Borough’s Stormwater Management System and the existence of a credit

appeal system after the Stormwater Charge is imposed does not establish the University’s

“assent” to the Charge in the first instance. See Majority Opinion at 29 nn.25-26.

       Again, I disagree. The existence of an appeal system that the University has not

utilized, and the acknowledgement the University could construct a comprehensive

stormwater management system of its own, but has chosen not to do so, are powerful

indicia that the University has freely accepted the status quo. It does not take evidence

of an arm’s length contractual process to establish the Stormwater Charge is paid by

choice. 3 Thus, in my opinion, the Commonwealth Court erred when it held that the

Charge is a tax and granted the University summary relief.

       Because the Majority concludes the Borough imposes the Stormwater Charge in

its public capacity, it ends its discussion here. However, under my analysis, we must also

determine whether the Stormwater Charge is proportional to the value, i.e., the benefit,

the University receives from its use of the Borough’s Stormwater Management System.

       The Borough asserts the proper measure of the System’s benefit to the University

is the amount the University would be required to pay if it chose to forego its reliance on

3 The Borough notes that it is not aware of any need for an actual contract between itself

and the University to provide stormwater management services, and neither am I.
Borough’s Brief at 42 n.13; see also Manheim Township, 38 A.2d at 276 (“Charges made
in connection with [municipal] operations are based upon contract rather than taxation
because those who consume the product or receive the service act in so doing voluntarily,
either as individuals or as a neighborhood [] and thereby impliedly agree to pay the price
of the product furnished or service rendered.”).


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the Borough’s System. See Borough’s Brief at 49. The Borough’s expert estimated the

University would be required to spend $178,500, per year, to build and maintain a system

that could properly manage the entirety of its stormwater from North Campus. See id.

The Borough contends that by relying on the public Stormwater Management System,

the University saves money, and thus receives substantial value, because the University’s

annual costs (i.e., the amount of the Stormwater Charge) are considerably less — at

$132,088.68, per year. 4 See id. Further, to the extent the Commonwealth Court rejected

impervious cover as the proper measurement for determining the Stormwater Charge,

the Borough argues the relationship between impervious surface and stormwater runoff

is “axiomatic and well-recognized,” and that it “is unaware of any measure for calculating

a stormwater management fee which does not at least include the amount of impervious

cover at a property.” Id. at 52-53.

       In response, the University asserts that even if the Stormwater Charge might be a

fee for service, it cannot be imposed on the University because it is not reasonably

proportional to the benefit it receives. See University’s Brief at 43. The University argues

(1) the Stormwater Charge funds are used to support projects other than pipe

maintenance, (2) the Borough has used General Fund tax revenues to construct and

maintain the Stormwater Management System — meaning those costs are otherwise

accounted for, and (3) the Borough did no analysis of the actual expected cost of

maintaining the portion of the Stormwater Management System associated with the

University’s property. See id. at 44-45. Thus, billing the University roughly $132,000, per

year, “for no specific current or ongoing services, is inherently unreasonable.” Id. at 45.

4 This evidence is specifically related to the University and not the general public.
                                                                                  Even
if we were to assume that the actual number is less (or accepting the University’s own
estimate of $132,000) — is it not the agreed-upon fact that the University’s use of the
Borough’s system results in a $132,000 saving per year enough to show a discernable,
discrete, and direct benefit to the University?


                            [J-56-2024] [MO: Brobson, J.] - 10
      Persuaded by the United States Court of Federal Claims’ decision in DeKalb

County, Georgia v. United States, 108 Fed. Cl. 681 (2013), the Commonwealth Court

rejected the idea that benefits from a stormwater management system may be

determined based on the impervious surface cover on a property. However, the symbiotic

relationship between impervious surfaces and stormwater runoff is not a novel concept.

The Environmental Protection Agency recognizes: “Stormwater runoff is a major

contributor to water pollution. When rainwater washes over impervious surfaces such
as rooftops, parking lots, and roads, it collects and carries pollutants that ultimately

flow into waterways.” https://www.epa.gov/smartgrowth/impervious-surfact-growth-
model (last accessed 2/26/2026).

      Moreover, as the Borough points out, the relationship between impervious cover

and stormwater runoff, as a means for assessing stormwater charges, has been accepted

in other jurisdictions. See Norfolk Southern Railway Company v. City of Roanoke, 2017

WL 6599008, *10-*11 (W.D. Va., Dec. 26, 2017) (concluding that impervious surface area

is a reasonable basis for the amount of a stormwater fee, particularly where a property

owner can appeal the charge); see also McLeod v. Columbia County, 599 S.E. 2d 152,

156 (Ga. 2004) (holding that a stormwater charge based on the amount of impervious

surface area bore a “reasonable relationship to the benefits received by the individual

developed properties in the treatment and control of … stormwater runoff[]”). Further,

though in the context of sewer charges, our Commonwealth Court has held that “there is

value in simply being connected to a sewer system.” GSP Management Company v.

Duncansville Municipal Authority, 126 A.3d 369, 373 (Pa. Cmwlth. 2015) (citing

Washington Realty Company v. Municipality of Bethel Park, 937 A.2d 1146, 1150 (Pa.

Cmwlth. 2007)). “[R]ates need not be proportioned with exactness to [the] use made or

the cost to the individual customer, so long as it is reasonably related to the cost of




                          [J-56-2024] [MO: Brobson, J.] - 11
maintaining the service for all customers, and the customers challenging the rates

received ‘some’ benefit from the system.” Id. at 374 (citing Ack v. Carrol Township

Authority, 661 A.2d 514, 518 (Pa. Cmwlth. 1995)).

      In regard to proportionality, I reiterate that impervious surface, while not a perfect

indicator, seems a reasonable basis for determining the amount of stormwater

management benefit provided to a developed property. Further, evidence here suggests

that the annualized cost to the University to address the entirety of its stormwater runoff

could, in fact, exceed the amount it is charged each year by the Borough. And, while the

University contends that much of the Stormwater Charge is utilized for activities that

provide it no direct benefit, I note that those activities — i.e., among other things, tree

planting and street sweeping — are integral to the effective operation of a stormwater

management system and, thus, provide benefit to the entire community, even if that

benefit is less obvious than pipe repair and maintenance.

      The implementation of means and methods, as part of an overall strategy to protect

and preserve environmental concerns, benefits the entire community, while assessing the

cost burdens of doing so on a pro rata basis. Since this strategy is critical to the

maintenance of the Borough’s infrastructure, programs and projects that are reasonably

related to stormwater management should be considered when evaluating the

proportionality of the charge for such services. Moreover, because the University utilizes

part of the Borough’s Stormwater Management System, and the Borough is the entity that

is ultimately tasked with compliance as to the state and federal laws regarding stormwater

management, the Borough’s efforts implemented to reduce stormwater runoff should be

considered in the final analysis of the Charge’s proportionality to the benefit received.

      At bottom, there is no denying the University benefits from the Borough’s

Stormwater Management System. However, the value of those benefits must be carefully




                           [J-56-2024] [MO: Brobson, J.] - 12
weighed vis-à-vis the Stormwater Charge. The amount of impervious surface on North

Campus informs that view, but a more detailed review is required to determine, precisely,

whether the Charge accurately reflects the benefit the University receives — especially

where the University currently maintains its own, separate stormwater management

system. Because it determined the Charge is a tax, rather than a fee, the Commonwealth

Court did not engage in the requisite analysis to reach an informed conclusion on this

point. Accordingly, I would remand to the Commonwealth Court to conduct the necessary

review of proportionality.

       Moreover, amicus, Pennsylvania Municipal Authorities Association, et al.

(collectively, PMAA), notes that public policy favors recognition of the Stormwater Charge

as a fee that a Commonwealth entity, such as the University, should be required to pay

in exchange for the benefits of stormwater management it receives in return. Focusing

on our capital city, PMAA writes

              [t]here is nothing equitable about dissociating financial responsibility
              from discouraged conduct. It leads to situations like Harrisburg,
              where the Commonwealth government is free to construct
              impervious surface behemoths — like the sprawling Capital Complex
              … [a]ll the while the taxpaying citizens of Harrisburg, many of whom
              qualify as low-income, foot the increasing bills for [] service[.]


PMAA Brief at 30. Again, while “fairness” alone cannot be — and is not — the basis for

our disagreement with the Majority, the Harrisburg example illustrates the importance of

drawing the proper distinction between a fee and a tax — before summarily dismissing

the Commonwealth from sharing the cost of critical infrastructure, from which it receives

a tangible benefit.

       To conclude, stormwater management is vitally important and requires a concerted

effort to implement an effective stormwater management plan and system. Accordingly,

many political subdivisions have implemented policies providing that those who own


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properties that significantly contribute to stormwater runoff must share in the costs of

stormwater mitigation and abatement.         These policies find support in our State

Constitution. Article 1, Section 27, of our Charter provides:

              § 27. Natural resources and the public estate.

                   The people have a right to clean air, pure water, and to the
              preservation of the natural, scenic, historic and esthetic values of the
              environment. Pennsylvania’s public natural resources are the
              common property of all the people, including generations yet to
              come. As trustee of these resources, the Commonwealth shall
              conserve and maintain them for the benefit of all the people.


PA. CONST. art. I, § 27. These are not just lofty words, aspirations, or goals; they are an

expression of our rights as Pennsylvanians.          Stormwater management is critical

infrastructure — the same as roads, schools, and public utilities — and is vital for

protecting the environment. As such, our elected officials, in enacting these programs,

are attempting to provide sufficient funding for well-designed and well-constructed

stormwater management systems across the Commonwealth.

       Therefore, to the extent I agree with the Majority’s conclusion that the

Commonwealth Court properly allocated the respective burdens of proof in its analysis of

the parties’ cross-applications for summary relief, I concur. However, I dissent from the

Majority’s determination that the Stormwater Charge is a tax, as I conclude the University

voluntarily utilizes the Borough’s Stormwater Management System and receives a

discrete benefit, or benefits, in exchange for that use. Accordingly, I would reverse the

Commonwealth Court’s order and remand for the Court to consider whether the amount

of the Stormwater Charge billed to the University is proportional to the benefit(s) it

receives from the Borough’s Stormwater Management System.

       Justice Donohue joins this concurring and dissenting opinion.




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