        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara L. Yoder and Joseph I. Yoder,  :
Wife and Husband, Individually, and as :
Trustees of The Yoder Family Trust     :
No. 2 and Hardwood Mill Trust          :
                                       :
             v.                        :      No. 1927 C.D. 2016
                                       :
Sugar Grove Area Sewer Authority       :      Submitted: November 14, 2017
                                       :
Sugar Grove Area Sewer Authority       :
                                       :
             v.                        :
                                       :
Barbara L. Yoder and Joseph I. Yoder, :
Wife and Husband, Individually, and as :
Trustees of The Yoder Family Trust     :
No. 2 and Harwood Mill Trust           :
                                       :
Appeal of: Barbara L. Yoder and Joseph :
I. Yoder                               :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                          FILED: January 5, 2018

             This mandatory sewer connection matter returns to us after remand.
Barbara L. Yoder and Joseph I. Yoder, individually and as Trustees of the Yoder
Family Trust No. 2 and Hardwood Mill Trust (Owners), appeal from an order of the
Court of Common Pleas of the 37th Judicial District, Warren County Branch (trial
court) that denied preliminary injunctive relief, and required their connection to the
Sugar Grove Area Sewer Authority (Authority) sewer system by electric means.
               Owners are Old Order Amish. In the initial appeal, we directed the trial
court to assess whether electric service was the least intrusive means of sewer
connection. See Yoder v. Sugar Grove Area Sewer Auth. (Pa. Cmwlth., No. 1956
C.D. 2015, filed June 3, 2016) (Remand Opinion). Relevant here, on remand the
trial court determined Owners were required to connect by means of an electric
grinder pump. Owners argue the trial court erred in denying preliminary injunctive
relief when it previously found their religious tenets prohibited the use of electricity.
Specifically, they assert the trial court erred in weighing the harms, and requiring
Owners to offer less intrusive connection options when the Authority bears that
burden under the Religious Freedom Protection Act1 (Act). Based on the record, we
conclude the trial court had reasonable grounds to deny preliminary injunctive relief.
Accordingly, we affirm.


                                      I. Background
               Owners maintain a residence in Sugar Grove Township (Township),
which is subject to a mandatory connection ordinance, Ordinance No. 04-06-15
(Mandatory Connection Ordinance).             Pursuant to the Mandatory Connection
Ordinance, every owner whose property abuts the Authority sewer system, shall
connect, at the owner’s cost, any structures located on the property that are occupied
or intended for human occupancy. Although Owners’ property is subject to the
Mandatory Connection Ordinance, one of the tenets of Owners’ religion is to disavow
electricity. As a result, Owners service their property with an old-fashioned privy
(outhouse) without running water or electricity.




      1
          Act of December 9, 2002, P.L. 1701, 71 P.S. §§2401–2407.


                                              2
               This is the third related sewer-connection action,2 all involving Owners
in some fashion. First, in prior litigation, the Authority sought injunctive and
declaratory relief to compel Owners to connect to its system as mandated by the
Mandatory Connection Ordinance (suit docketed at No. 191 of 2012). The Authority
also requested that Owners be removed from the property to enable the Authority to
connect the property in a manner it deemed fit (Prior Authority Litigation).


               The Authority filed a motion for judgment on the pleadings. After
briefing and argument, the trial court granted the Authority’s motion in part,
mandating Owners’ connection to the sewer system. However, the trial court denied
the Authority’s request to compel Owners to allow connection in a manner the
Authority deemed fit. Tr. Ct. Order, 11/26/13 (2013 Order). Relevant here,
paragraph 5 of the 2013 Order provided: “[The Authority] shall, in the process of
connecting the property to the sewer system, take due care as to [Owners’] religious
convictions, and shall proceed in a manner so as to pose the least possible intrusion
on [Owners’] religious convictions and beliefs.” Id. (emphasis added).


               Second, while the Prior Authority Litigation was pending, the Old
Order Amish, including Owners, brought a class action suit against the Authority
challenging the constitutionality of the Mandatory Connection Ordinance (suit
docketed at No. 304 of 2013). Specifically, the class sought a declaration that the
Mandatory Connection Ordinance violated their rights to religious freedom under
the Act and the Constitution, and it sought an injunction against mandatory

       2
          In addition, when Owners failed to pay overdue monthly sewer charges, the Authority filed
a municipal claim (docketed at No. MLD 71 of 2010), and a summary criminal complaint against
them (docketed at Nos. SA 21 and 22 of 2012). Owners appealed the trial court’s judgment of
guilt on the summary appeals to this Court, which we affirmed (appeal docketed at 229 C.D. 2012).

                                                3
connection. Ultimately, President Judge Maureen Skerda resolved the merits of the
class action suit against the Old Order Amish on January 27, 2016. This Court
quashed the appeal (appeal docketed in this Court at 346 C.D. 2016), for failure to
file post-trial motions. The Supreme Court then denied the petition for allowance of
appeal on November 22, 2016, (Pa., No. 284 WAL 2016).


               Third, the current litigation, an action for injunctive relief, stems from
disagreements regarding the means of connecting Owners to the sewer system.
Initially, the Authority advised Owners by letter that they must open an electric
service account with Penelec to power the grinder pump for their connection. In
response, Owners filed the preliminary injunction petition (Petition) underlying the
instant appeal (Petition docketed at No. 507 A.D. of 2014). In their Petition, Owners
claimed that requiring them to use electric service for the grinder pump, and open a
Penelec account for that purpose, violated their rights to religious freedom
guaranteed by the First Amendment to the U.S. Constitution, and Article 1, Section 3
of the Pennsylvania Constitution, and protected by the Act.


               The trial court held two days of hearings on the Petition. Joseph Yoder
(Yoder) testified regarding Owners’ religious objections to opening an electricity
account, and to having electricity used to power anything associated with the use of
their privy.


               The Authority presented testimony of a few witnesses, including that
of its Sewage Enforcement Officer Todd Fantaskey (SEO), and Joseph Roddy
(Engineer) as sewer system experts.



                                            4
             Relevant here, Engineer testified regarding connection options. He
explained that gravity and grinder pump systems differ in that gravity systems depend
on topography, and are more expensive to install, whereas a pressure system that uses
a grinder pump “negates any issues as far as topography.” Reproduced Record (R.R.)
at 229a. He noted solar power offered a potential power source, but Yoder opposed
anything that generated electricity, including solar power. He explained, “the Amish
didn’t like the idea of generating electricity at all,” even with a generator. R.R. at
230a. He considered “direct drive” options where a belt or pulley would run the actual
pump, id.; however, this also required an electric-powered motor. Developing a
prototype pump to operate without electricity was impractical.


             Based on the evidence presented, the trial court denied the preliminary
injunction. Specifically, the trial court allowed the Authority to connect Owners in
a manner within its “sole discretion.” Tr. Ct. Order of 1/26/15 (2015 Order). Thus,
its 2015 Order superseded its 2013 Order, which required the Authority to be mindful
of Owners’ religion, and its prohibition of electricity use, and to implement the
connection using the means least intrusive to their religious beliefs. The trial court
denied the motion as to the Authority’s request that it require Owners to use electric
service through Penelec, and it specified “[Owners] shall not be compelled to open an
account with Penelec or any other provider for the electrical service necessary for the
installation, operation, or maintenance of the sewer connection.” Id.


             Owners appealed, and this Court reviewed the matter (appeal docketed
at 1956 C.D. 2015). In our Remand Opinion, we recognized the trial court mandated
Owners’ connection to the sewer system in its 2013 Order in the Prior Authority



                                          5
Litigation. However, we held the trial court erred in attempting to supersede its 2013
Order as to the manner of connection. We reinstated the mandate in paragraph 5 of
the 2013 Order that the Authority employ the least intrusive means of connection,
accounting for Owners’ religious beliefs.


             Because Owners prevailed on the means of connection issue, we also
held the trial court erred in denying injunctive relief based solely on its holding that
Owners lacked a clear right to relief. We instructed the trial court to consider all six
elements for preliminary injunctive relief on remand “based on the alleged harm of
requiring the use or installation of electric service to accomplish the mandatory
connection.” Remand Op. at 18-19. We remanded to enable the trial court to
consider the harm of an electric connection against non-electric alternatives, and to
make related findings in light of its 2013 Order in the Prior Authority Litigation
recognizing Owners’ right to the least intrusive means of connection.


             On remand, based on the existing record, the trial court analyzed
whether Owners met the six prerequisites for injunctive relief. The trial court also
assessed whether a grinder pump powered by electricity was the “least intrusive
means” of connecting to the sewer system.


             In its August 2016 opinion on remand, the trial court determined
Owners met the irreparable harm element because the harm is forcing an action (use
of electricity) that would violate their religious beliefs. It noted it “previously ruled
that [Owners’] beliefs are sincere.” Tr. Ct., Slip Op., 8/9/16, at 3. The harm of
requiring electricity use was therefore not compensable by money damages.



                                            6
             The trial court also found Owners met the third factor (restoration of
the status quo), as well as the fifth factor (reasonably suited to injunctive relief).


             As to the second factor, whether greater harm would result from
refusing the injunction than granting it, the trial court concluded Owners did not
meet their burden. It found that granting an injunction, and exempting Owners from
using electricity to power the means of connection, would cause more harm than
denying relief. In assessing the harms, it recognized that Owners, on a limited basis,
used electricity when necessary, through telephones and riding in motor vehicles. In
addition, a witness observed Owners using power tools (circular saw). R.R. at 145a.
As a result, the trial court found that Owners used electricity when necessary, such
that the degree of harm from use of an electric grinder pump that they would not see
and with which they would not need to interact, was moderate. It weighed that
moderate harm against the risk of using untested means of connection, noting the
risk of malfunction of part of the sewer system posed a serious threat to public health.


             The trial court also determined Owners failed to prove a clear right to
relief. The trial court defined the relief as connecting to the sewer system through
non-electric means. In evaluating whether Owners met this factor, it placed the
burden on Owners to establish the least intrusive means with non-electric connection
options. Because Owners did not offer any non-electric alternatives for connecting,
the trial court found they did not show a clear right to relief.


             The trial court also concluded Owners did not establish that enjoining
an electric connection would not adversely affect the public interest. It found that if



                                            7
it enjoined the Authority from using an electric grinder pump, the public would
suffer a substantial harm. The trial court identified the harm to the public as the risk
from malfunction of an untested and unfamiliar mechanism for connection. The trial
court emphasized that using a non-electric, untested means of connection would pose
potential problems with the Authority’s operation and maintenance of the sewer
system. It noted the Mandatory Connection Ordinance mandated connection to
avoid the risks of malfunction; that purpose would be undermined by permitting
connection by an unknown, untested means.


             Finally, as to the means of connection, the trial court found an electric
grinder pump was the only feasible option. It found that the property’s location
made “use of a gravity system untenable.” Tr. Ct., Slip Op., 8/9/16, at 4. It found
electricity was required to power the grinder pump, which is the only means of
connecting to the Authority’s pressurized sewer system. Owners objected to any
and all uses of electricity for the connection. As a result, the trial court found all
options that required the privy to use electricity were equally intrusive. It also
concluded installing the pump on Owners’ property caused no additional harm.


             Owners filed motions challenging the trial court’s August 2016 opinion
and related order denying the Petition. The trial court denied Owners’ post-trial
motions by order dated October 12, 2016. Owners appealed that order to this Court.


             The trial court directed Owners to file a concise statement of the errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b). Owners filed the statement,
asserting the trial court erred in applying the injunction factors, in placing the burden



                                           8
of proof on Owners as to the least intrusive means, and in ultimately denying
injunctive relief. The trial court then issued an additional opinion under Rule
1925(a), incorporating its August 2016 opinion.


              After submission on briefs, the matter is ready for disposition.


                                      II. Discussion
              On appeal, Owners assert the trial court erred in four related respects.
First, Owners contend the trial court disregarded its 2013 Order in the Prior
Authority Litigation that recognized electricity use offends Owners’ sincere
religious beliefs. Second, they argue the trial court misapplied our Remand Opinion
because it did not define the enjoinable harm as the use of electricity. Instead, they
claim the trial court weighed the use of electricity against the harm that would result
from Owners’ failure to connect to the sewer system. Third, they challenge the trial
court’s analysis of the clear right element, particularly as to which party bears the
burden of proving least intrusive means. Lastly, Owners maintain the trial court
erred in denying relief when they met the prerequisites for a preliminary injunction.


                                  A. Legal Standards
              In reviewing a trial court’s order denying a preliminary injunction, our
review is highly deferential. We “examine the record only to determine ‘if there
were any apparently reasonable grounds for the action of the court below ....’” Reed
v. Harrisburg City Council, 927 A.2d 698, 703 (Pa. Cmwlth. 2007) (citation omitted).
Indeed, “[o]nly if it is plain that no grounds exist to support the decree, or that the rule
of law relied upon was palpably erroneous or misapplied, will the decision be



                                             9
interfered with.” Unionville-Chadds Ford Sch. Dist. v. Rotteveel, 487 A.2d 109, 111
(Pa. Cmwlth. 1985) (emphasis in original).


             In order to obtain a preliminary injunction, a petitioner must establish
the following: (1) immediate and irreparable harm in the absence of an injunction;
(2) greater injury will result by not granting the injunction than by granting relief;
(3) restoration of the status quo; (4) a clear right to relief; (5) an injunction is
appropriate to abate the alleged harm; and, (6) the preliminary injunction will not
adversely affect the public interest. Summit Towne Ctr., Inc. v. Shoe Show of Rocky
Mount, Inc., 828 A.2d 995 (Pa. 2003). Our Supreme Court consistently holds that
“for a preliminary injunction to issue, every one of these prerequisites must be
established; if the petitioner fails to establish any one of them, there is no need to
address the others.” Cty. of Allegheny v. Commonwealth, 544 A.2d 1305, 1307 (Pa.
1988) (emphasis in original).


             The General Assembly enacted the Act in 2002 to enlarge constitutional
protections against government intrusion on an individual’s religious beliefs. See
Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009). Section 4 of the Act states,
“an agency shall not substantially burden a person’s free exercise of religion.” 71
P.S. §2404. An agency “substantially burdens” the free exercise of religion when it
“[c]ompels conduct or expression which violates a specific tenet of a person’s
religious faith.” Section 3 of the Act, 71 P.S. §2403. When an agency imposes a
substantial burden, it must establish that the burden imposed is “[t]he least restrictive
means of furthering the compelling interest.” Section 4(b) of the Act, 71 P.S.
§2404(b).



                                           10
                                 B. Issues on Appeal
               At the outset, we emphasize the limited issue before this Court. Our
Remand Opinion reinstated the trial court’s 2013 Order in the Prior Authority
Litigation.    The only detail unresolved by the 2013 Order was the means of
mandatory connection. The trial court partially resolved that aspect of connection
in Owners’ favor by requiring the least intrusive means, mindful of Owners’
religious beliefs prohibiting electricity use.


               Our Remand Opinion asked the trial court to discern whether the use of
electricity was the least intrusive means of implementing connection under the
Mandatory Connection Ordinance. We instructed the trial court to analyze all six
elements of preliminary injunctive relief, utilizing the use of electricity as the harm to
be enjoined.


                       1. 2013 Order & Means of Connection
               First, Owners assert the trial court disregarded its 2013 Order in the
Prior Authority Litigation by mandating connection by use of an electric grinder
pump. According to Owners, by requiring electricity use, the trial court failed to
uphold its 2013 finding that Owners’ religious beliefs were sincere. They claim that
by characterizing their occasional use of electricity as “concessions,” Tr. Ct., Slip
Op., at 4, the trial court questioned the sincerity of their beliefs. Owners emphasize
that any use of electricity is contrary to their religious beliefs, such that any
connection of their privy to the Authority sewer system renders it unusable.




                                           11
             The Authority responds that the trial court acknowledged its findings
in the 2013 Order, and did not question the sincerity of Owners’ beliefs. Rather, the
trial court considered the degree of harm in their use of electricity when Owners
admittedly used electricity on occasion. It contends the trial court properly assessed
Owners’ prior uses of technology when weighing the harm electricity use poses upon
their religious freedom.


                    a. 2013 Order, Prior Authority Litigation
             The 2013 Order pertained to the Prior Authority Litigation between the
same parties, in which the Authority sought to enforce the Mandatory Connection
Ordinance. The trial court granted judgment on the pleadings as to the mandatory
nature of connection in the Authority’s favor. However, the trial court recognized
Owners’ sincere religious beliefs were contrary to the installation of electric service.
Therefore, as to the means of connection, the trial court found partially in Owners’
favor.


             Because the trial court disagreed with the Authority’s proposed method
of connection, it specified that when connecting the property, the Authority “shall
… take due care as to [Owners’] religious convictions, and shall proceed in a manner
so as to pose the least possible intrusion on [Owners’] religious convictions and
beliefs.” 2013 Order at ¶5 (emphasis added). The 2013 Order became binding and
enforceable when neither party appealed it.


             We agree that the trial court’s 2013 Order and corresponding opinion
recognizes the sincerity and importance of Owners’ religious convictions. However,



                                          12
we disagree with Owners’ contention that the trial court disregarded these findings
when it denied the Petition. To the contrary, it stated that it “previously ruled that
[Owners’] beliefs are sincere,” and it found Owners established the use of electricity
constituted irreparable harm. Tr. Ct., Slip Op., 8/9/16, at 3.


             Owners mischaracterize the 2013 Order as exempting them from
mandatory connection based on their religious beliefs. Yet, the trial court directed
connection despite those beliefs. It reasoned, the “interest of the people of this
Commonwealth in the treatment of [s]ewage … trumps the individual interests of
the Yoders ….” Tr. Ct., Slip Op., 11/26/13 (191 A.D. of 2012), at 6. It further
found: “that the Yoders’ (individual) Free Exercise rights do not outweigh the public
interest in maintaining public health through a properly functioning sewer system.”
Id. at 10. Therefore, the trial court’s 2016 opinion, which recognized the public
health concerns inuring to mandatory sewer connection outweighed Owners’
religious beliefs, is consistent with its findings as set forth in the 2013 opinion.


             Moreover, the trial court did not denigrate the sincerity of Owners’
religious beliefs when it considered their occasional electricity use in analyzing the
elements for preliminary injunctive relief. Rather, it was considering the degree of
harm from enjoining an electric connection. The trial court found the harm caused
by mandating electricity use was “moderate,” Tr. Ct., Slip Op., 8/9/16, at 4, based
on Owners’ past occasional use of electricity. It noted Owners used telephones and
motor vehicles on occasion, and were observed using electric power tools. Based
on Owners’ admissions of some electricity use, the trial court discerned that some




                                           13
use of electricity would not result in excommunication. Building on that foundation,
the trial court then considered the means of connection.


                              b. Means of Connection
             That connecting to the Authority’s pressurized sewer system entails an
electric grinder pump appears undisputed. In fact, Owners conceded, “mandatory
connection to the sewer system[,] … by definition and admission[,] requires the use
of electric grinder pumps.” Appellants’ Br. at 15 (emphasis added). The question
then became which means of powering the electric grinder pump was “least
intrusive” to Owners’ religion, in accordance with the 2013 Order.


             Significantly, the trial court found “[t]he grinder pump … requires
electricity as a power source.” Tr. Ct., Slip Op., 8/9/16, at 5; see R.R. at 230a (“we
have to have electricity somehow, somewhere to power a pump.”). The evidence
supports the finding that non-electric grinder pumps are not feasible. R.R. at 230a-
32a. Also, the record includes evidence that the electric grinder pump is the
mechanism with which the Authority is familiar, for consistent operation and ease
of maintenance with the rest of the system. Id. at 228a-30a.


             Requiring an alternative to electricity “would require [the Authority] to
design and build a custom prototype grinder pump.” Tr. Ct., Slip Op., 8/9/16, at 5.
The record reflects that a prototype grinder powered by other than electric means is
of dubious reliability because it is untested. R.R. at 232a (“[t]here’s no guarantee [it
would work properly].”).      Given the public health consequences of a single
malfunction, the trial court determined untested means were not worth the risk.



                                          14
             The trial court’s determination that an electricity-powered pump was
least intrusive did not discount the sincerity of Owners’ religious beliefs. Nor did it
disregard the trial court’s 2013 Order and opinion recognizing the prohibition of
electricity is a tenet of Owners’ religion. Looking solely at the means of connection
as instructed, the trial court concluded an electric grinder pump was the only means.
Once it determined electricity use was the only feasible power source for connecting,
the trial court recognized Owners deemed all means of supplying electricity equally
intrusive. Tr. Ct., Slip Op., at 5 (“the harm to [Owners] remains the same regardless
of whether the electrical power source of the grinder pump is Penelec, a [gas]
generator, or solar panels.”).


             Importantly, during multiple proceedings, Owners did not indicate that
any type of electricity generation for its privy was acceptable. In fact, Owners
confirm, “[i]t has never been [their] position that there was some alternative
pumping mechanism to the grinder pump.” Appellants’ Br. at 12. Instead of offering
non-electric connection options, they insist their means of waste disposal, without
connecting does not threaten public health or safety. Owners thus miss the point.


             Owners admit that expert testimony proved there were “no other
methods to connect the Yoders to the system without the use of electricity.”
Appellants’ Br. at 17. As the only means of connection, the electric grinder pump
was also the least intrusive means. Owners’ admission, coupled with the lack of any
argument that less intrusive means are available, left the trial court no choice but to
conclude that the electric grinder pump constitutes the least intrusive means for
serving the compelling interest in safe and sanitary sewage disposal.



                                          15
             Because Owners offered no basis for the trial court to distinguish
between untested non-electric sources of power, the trial court made the only finding
it could based on the evidence before it. Thus, we discern no inconsistency between
the trial court’s 2013 Order in the Prior Authority Litigation and its 2016 order on
remand determining an on-site emand
             Next, we consider Owners’ argument that the trial court did not follow
our Remand Opinion because it viewed the harm in terms of a lack of connection,
not in terms of a non-electric means of connection. Owners contend the trial court
erred when it weighed the harm of granting the injunction against denying it, because
it weighed different types of harms.


             This Court rejects Owners’ premise that the trial court reframed the
issue before it as one of mandatory connection. The trial court properly evaluated
the harm in terms of the electricity use; it weighed the harm to Owners’ religious
beliefs attendant to electricity use against the harm to the Authority and to the public
in enjoining that use. When the trial court weighed the electric means of connection
against potential non-electric alternatives, it rejected non-electric possibilities. The
record contains reasonable grounds for the trial court’s decision in that regard.


             Owners consider the use of electricity an “all or nothing” proposition.
See R.R. at 67a, 88a (Yoder’s testimony). As a result, they did not accept alternative
sources of electricity to power the grinder pump. The trial court found all alternative
electric sources were equally offensive to Owners’ religious beliefs. Because of
Owners’ “all or nothing” approach, the trial court was forced to weigh their concerns




                                          16
against the harm to the public occasioned by using no electric power whatsoever. In
so doing, the trial court weighed the harms in conformity with our Remand Opinion.


                             3. Burden of Proving Clear Right
               Owners also contend the trial court erred when it analyzed the clear
right element required for a preliminary injunction. Owners assert that the onus of
proving least restrictive burden is on the Authority under the Act. Thus, the trial
court erred in placing the burden on Owners. They also argue an injunction may be
granted absent a clear right where substantial legal questions must be resolved to
determine the parties’ rights.


               Paragraph 5 of the 2013 Order conferred a clear right upon Owners to
connect to the sewer system by the least intrusive means. Our Remand Opinion
reinstated the 2013 Order requiring connection by such means. Thus, Owners had a
clear right to enforce the 2013 Order as to the least intrusive means of connection.3


               Here, the trial court discerned Owners’ burden in terms of defining
specific means, and demonstrating which were least intrusive. In that limited regard,
the trial court erred. As the Authority concedes, on the merits of Owners’ claim, the
Authority bears the burden of proving the least restrictive burden to accomplish the



       3
          Owners present the “clear right” as the right to avoid any connection to the sewer system
that uses electricity. However, the 2013 Order did not entitle Owners to a non-electric alternative.
It entitled them to only the least intrusive means of connecting based on the means capable of
achieving the compelling interest of complying with the Mandatory Connection Ordinance. The
lack of any feasible non-electric means does not excuse Owners from mandatory connection. That
disregards the law of the case that mandated connection to protect the public health interest in proper
sewage disposal.

                                                 17
compelling interest in connection under the Act. Section 4(b) of the Act, 71 P.S.
§2404(b).


              Regardless, the Authority presented evidence of the least intrusive
means of connection to its sewer system through Engineer’s testimony. Owners did
not refute that evidence, and admitted connection to the Authority system would not
be possible without using electricity. Appellants’ Br. at 17. The trial court thus
found the least intrusive means to achieve mandatory connection was an electricity-
powered grinder pump.


              Because Owners had a right under the 2013 Order to the least intrusive
means of connection, they satisfied the clear right element.


                          4. Preliminary Injunctive Relief
              Lastly, Owners argue the trial court erred in denying their Petition.
They claim the trial court erred in not finding they met all the elements for relief
when their religious beliefs prohibit the use of electricity. Owners presuppose the
harm to their beliefs trumps any other harm, including harm to public health.
Further, requiring connection by an on-site electric grinder pump directly conflicts
with their religious rights. According to Owners, by denying an injunction, despite
the 2013 Order recognizing their religious beliefs, the trial court doubts the sincerity
of their beliefs.


              Under the deferential standard of review applicable to orders deciding
preliminary injunctions, this Court must uphold the trial court’s order if the trial



                                          18
court had “any apparently reasonable grounds” for finding the petitioner did not meet
all six prerequisites for relief. Reed, 927 A.2d at 703. Accordingly, in this appeal,
Owners bear the burden to establish that there are no reasonable grounds for the trial
court’s decision denying the injunction. Unionville-Chadds Ford Sch. Dist.


             Here, the trial court found Owners did not meet three of the six
prerequisites for preliminary injunctive relief. Although we respectfully disagree
with the some of the trial court’s legal reasoning as to a clear right to relief, we
cannot fault the trial court’s determination that the electric grinder pump was the
least intrusive manner of connection on this record. Regardless, we agree with the
trial court that Owners failed to establish two other prerequisites for relief: (1) the
harm of denying the injunction outweighed the harm of granting the injunction; and,
(2) granting the injunction would not adversely affect, or harm, the public.


             The trial court, as fact-finder, weighed the evidence. Its findings,
weighing the harms from granting versus denying injunctive relief, are entitled to
deference. Summit Towne.


             As to weighing the harm of granting the injunction against denying it,
the record supports the trial court’s findings that Owners use electricity on occasion,
and that the Old Order Amish have not excommunicated Owners for such use. See
R.R. at 88a-89a. The trial court properly considered Owners’ incidental uses of
electricity, and that such use was “condoned by their religion.” Appellants’ Br. at
22.




                                          19
             As to the harm in denying the injunction, Owners asserted, “greater
injury would result from refusing the requested relief than in granting it, [because]
requiring [Owners] to … utilize electric service to run a grinder pump violates their
sincere and deeply held religious beliefs and would force them to abandon their
property.” Pet. at ¶21. Owners thus precluded any electric options as contrary to
their beliefs. As it is undisputed that electricity is necessary for connection, the trial
court did not err in considering the benefits of Owners’ connection when weighing
the harms.


             Further, the trial court did not err in considering the benefits of Owners’
connection to the Authority sewer system to public health. The trial court could
make findings as to the risk of sewer malfunctions without any direct evidence that
Owners’ privy caused pollution. Moreover, the trial court’s findings that the harm
to the public outweighed the harm to Owners’ sincere religious beliefs are consistent
with its 2013 Order and opinion. Tr. Ct., Slip Op., 11/26/13, at 10.


             Also, the trial court credited the Authority’s witnesses’ testimony as to
the infeasibility of non-electric options. Owners offered no contrary evidence, or
evidence from which the trial court could discern whether alternative power sources
for the electric grinder pump would have been less intrusive to their beliefs. Owners
admitted a mandatory connection necessitated the use of electricity, and they were
unwilling to cooperate with the Authority and consider non-electric sources.


             Thus, we discern apparently reasonable grounds for the trial court’s
denial of the preliminary injunction.



                                           20
                                  III. Conclusion
             The trial court’s evaluation of the six prerequisites for preliminary
injunctive relief comports with our Remand Opinion. Based on the record, the trial
court determined Owners did not meet all of the prerequisites for relief. Owners did
not establish the injunction would not harm the public, or that the harm in denying
the injunction outweighed the harm in granting it. We defer to the trial court’s
findings as to weighing the harms and the adverse effect of an injunction on the
public health. After several years of litigation on multiple fronts, we recognize a
strong interest in accomplishing the mandatory connection without further delay.
Because there are apparently reasonable grounds for the trial court’s denial of
preliminary injunctive relief, we affirm.




                                       ROBERT SIMPSON, Judge




                                            21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara L. Yoder and Joseph I. Yoder,  :
Wife and Husband, Individually, and as :
Trustees of The Yoder Family Trust     :
No. 2 and Hardwood Mill Trust          :
                                       :
             v.                        :   No. 1927 C.D. 2016
                                       :
Sugar Grove Area Sewer Authority       :   Submitted: November 14, 2017
                                       :
Sugar Grove Area Sewer Authority       :
                                       :
             v.                        :
                                       :
Barbara L. Yoder and Joseph I. Yoder, :
Wife and Husband, Individually, and as :
Trustees of The Yoder Family Trust     :
No. 2 and Harwood Mill Trust           :
                                       :
Appeal of: Barbara L. Yoder and Joseph :
I. Yoder                               :


                                  ORDER

            AND NOW, this 5th day of January, 2018, the order of the Court of
Common Pleas of the 37th Judicial District (Warren County Branch) is AFFIRMED.




                                    ROBERT SIMPSON, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Barbara L. Yoder and Joseph I. Yoder, :
Wife and Husband, Individually, and   :
as Trustees of The Yoder Family Trust :
No. 2 and Hardwood Mill Trust         :
                                      :   No. 1927 C.D. 2016
             v.                       :
                                      :   Submitted: November 14, 2017
Sugar Grove Area Sewer Authority      :
                                      :
Sugar Grove Area Sewer Authority      :
                                      :
             v.                       :
                                      :
Barbara L. Yoder and Joseph I. Yoder, :
Wife and Husband, Individually, and   :
as Trustees of The Yoder Family Trust :
No. 2 and Hardwood Mill Trust         :
                                      :
Appeal of: Barbara L. Yoder and       :
Joseph I. Yoder                       :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                              FILED: January 5, 2018


            The Court of Common Pleas of the 37th Judicial District, Warren
County Branch (trial court) found that Barbara L. Yoder and Joseph I. Yoder,
individually and as trustees of the Yoder Family Trust No. 2 and Hardwood Mill
Trust (Owners), are sincere in their disavowal of electricity pursuant to their
religious beliefs as Old Order Amish. Nonetheless, the well-written Majority
affirms the trial court and compels Owners to connect to the sewer system operated
by Sugar Grove Area Sewer System Authority (Authority) by means of an
electricity-powered grinder pump. Based on the record, I believe Owners are being
denied their rights to religious freedom as guaranteed by the First Amendment to the
United States Constitution,1 article I, section 3 of the Pennsylvania Constitution,2
and as protected by the Religious Freedom Protection Act (Act).3 Therefore, I
respectfully dissent.
                The record shows that, relevant to Owners’ beliefs, they service their
property with a privy without running water or electricity. The trial court ordered
Owners to connect to the Authority’s sewer system through the use of an electric-
powered grinder pump, and rejected other non-electric means of connection as
purportedly “untested” or “untenable” due to topography. (Trial Court’s August 9,
2016 Order at 4.) By denying Owners’ preliminary injunction and so ordering them
to connect to the Authority’s system through the grinder pump, the trial court has
ignored the import of the religious freedom protections Owners are afforded and
violated the intent of this Court’s remand opinion that the Authority employ the least
intrusive means of connection, accounting for Owners’ religious beliefs.
                Specifically, the trial court placed the burden on Owners to establish
the least intrusive means of connection with non-electric options and, because
Owners did not meet this burden, the trial court found that they did not show a clear
right to relief. This was an error of law by the trial court.

      1
          U.S. CONST. amend. I.

      2
          PA. CONST. art. I, §3.

      3
          Act of December 9, 2002, P.L. 1701, 71 P.S. §§2401–2407.


                                          PAM - 2
              Section 3 of the Act provides that an agency (such as the Authority)
“substantially burdens” the free exercise of religion when it “[c]ompels conduct or
expression which violates a specific tenet of a person’s religious faith.” 71 P.S.
§2403(4). Clearly, that is the case here, i.e, as the trial court found the disavowal of
electricity to be a sincerely held religious belief by Owners, who are Old Order
Amish.
              Section 4(b)(2) of the Act places the burden on the Agency, i.e., the
Authority, to establish that the burden imposed is “[t]he least restrictive means of
furthering the compelling interest.” 71 P.S. §2404(b)(2) (emphasis added). The trial
court should have placed the burden of demonstrating the least intrusive means of
connection with non-electric options on the Authority, and it committed error when
it required Owners to do so.
              Further, in a prior 2016 decision remanding the matter to the trial court,
this Court reinstated the trial court mandate that the Authority, not Owners, employ
the least intrusive means of connection, accounting for Owners’ religious beliefs.
Yoder v. Sugar Grove Area Sewer Authority, (Pa. Cmwlth., No. 1956 C.D., filed
June 3, 2016), slip op. at 54-55. This was not an idle expression by this Court, nor
was it intended to be a self-fulfilling exercise by the Authority with the result being
what it intended to impose on Owners from the outset—an electric grinder pump
connection.
              Accordingly, the trial court’s order denying Owners’ preliminary
injunction should be vacated and this case remanded to the trial court with the
instruction to place the burden on the Authority to demonstrate the least intrusive
means of non-electric connection to its sewer system. It may be that there are none
and, if that is the case, then the trial court should re-open the issue of compelling



                                       PAM - 3
Owners, against their sincerely held religious beliefs, to connect to the Authority’s
sewer system.     The Act requires the interest of the agency/authority to be
“compelling” before it imposes a substantial burden on religious freedom. I question
whether mandatory electric connection is such a compelling interest so as to
countenance this infringement upon Owners’ religious freedom. In that regard, it is
noted that the trial court’s 2013 order recognized the “interest of the people of this
Commonwealth in the treatment of [s]ewage.” (Trial Court’s November 26, 2013
Order at 6.) The disposal of waste is not an either-or proposition between outdoor
privies or sewers. There are other means of disposition of waste, such as septic tanks
and composting facilities, and while I am mindful that the Majority considers the
mandatory connection to the Authority sewer system to be the “law of the case,” rote
adherence to that concept is not required, especially when an incorrect or unjust
result would obtain because of it. See Rhoades v. School District of Abington
Township, 226 A.2d 53, 61 (Pa. 1967) (“Any interpretation of legislation, therefore,
which would deny the fullest voluntary freedom in religious worship would not only
be contrary to these American historical expressions of faith, but would also offend
against the First Amendment with its bell-clanging proclamation of religious
freedom.”); Griffith v. United Air Lines, Inc., 203 A.2d 796, 801 (Pa. 1964)
(expressing concern about “wooden application” of rules “yield[ing] harsh,
unnecessary, and unjust results.”).



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                      PAM - 4
