Another chapter written in Reading residents’ fight over recycling fee; Court ruling goes the City’s way

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HARRISBURG – A years-long battle between Reading and several residents over a recycling fee was extended after the Commonwealth Court of Pennsylvania last week vacated a verdict for the residents and remanded the case to the Court of Common Pleas of Berk County.

The decision, issued last week, is the second time the Commonwealth Court has taken up the matter. Among other determinations, the court found that the residents should not have been allowed to argue the fee is excessive because it wasn’t a claim raised in their complaint.

“The trial court should have precluded the Residents from proceeding on its new excessive fee argument without amending its complaint to include this new claim,” the decision says. “By allowing this new claim to move forward, the trial court deprived the City the opportunity to present preliminary objections or conduct full discovery.”

Under Act 101, Reading, as a city with more than 10,000 residents, is required to implement a recycling service. In March 2014, the City revised its recycling program. The new plan included eliminating a separate recycling fee and adding a Curbside Waste Collection Fee. This would cover the combined costs of collecting and recycling. The fee was more than $300 per year.

Residents had been allowed to opt out of municipal waste service if they chose to use a private service instead, but they were not allowed to opt out of the new collection fee. The plaintiffs lodged their class action against the city and RAWA in June 2014.

In 2014, the lower court ruled in favor of the city initially, but the plaintiffs appealed that decision to the Commonwealth Court, which vacated and remanded, ordering the court to consider whether the new fee will have a negative effect on the program’s self-sufficiency, and whether the new fee would keep the city from considering other ways to be more efficient (in other words, whether the fee collected so much money that it might hide areas where the city could accomplish the same recycling goals with less cost).

In January 2018, the lower court switched sides, ruling in favor of Alan Ziegler, Nicolas Bene, Lissette Chevalier, Jose Munoz and Efrain Caban, who had filed on behalf of themselves and others in their situation against the city and the Reading Area Water Authority, claiming the city’s new curbside waste collection fee “is in violation of the laws of the Commonwealth,” according to court filings.

The city appealed that ruling, arguing that the trial court “erred or abused its discretion by improperly shifting the burden to the City to defend its recycling fee, capriciously disregarding competent evidence that the City complied with Act 101,” according to the decision.

The Commonwealth Court vacated that judgment and remanded, agreeing with the city’s assertion that the trial court erred in its calculations over costs and deficits associated with the new fee, though it affirmed the court’s decision in other respects.

A footnote recognized the difficulty of funding recycling programs.

“Nevertheless, it is the function of the General Assembly, and not this Court, to reexamine Act 101 and the hardship that it is placing on municipalities and to develop new ways to encourage and incentivize waste reduction,” Judge Michael Wojick wrote in the ruling.

Commonwealth Court of Pennsylvania / Court No. 169 C.D. 2018



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