HomeMy WebLinkAbout03-1022
WILLIAM C. KOLLAS,
WILLIAM C. COSTOPOULOS
JAMES C. COSTOPOULOS,
GEORGE J. MALLIOS AND
TESSIE MALLIOS,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.
2003 -ltJ~ H
NEWVILLE WATER AND
SEWER AUTHORITY,
Defendant
CIVIL ACTION - LAW/EQUITY
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed wi thout you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Phone: (800) 990-9108 or (717) 249-3166
WILLIAM C. KOLLAS,
WILLIAM C. COSTOPOULOS
JAMES C. COSTOPOULOS,
GEORGE J. MALLIOS AND
TESSIE MALLIOS,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.
2003
NEWVILLE WATER AND
SEWER AUTHORITY,
Defendant
CIVIL ACTION - LAW/EQUITY
JURY TRIAL DEMANDED
PLAINTIFFS' COMPLAINT
AND NOW come the Plaintiffs, William C. Kollas, William C.
Costopoulos, James C. Costopoulos, George J. Mallios and Tessie
Mallios, pro se, and respectfully represent as follows in support
of this Complaint:
Parties
1. Plaintiffs, William C. Kollas, William C. Costopoulos and
James C. Costopoulos, are adult individuals with a primary place of
business located at Kollas & Kennedy, 1104 Fernwood Avenue, Camp
Hill, Cumberland County, Pennsylvania 17011.
2. Plaintiffs, George J. Mallios and Tessie Mallios, husband
and wife, are adult individuals residing at 312 West Meadow Drive,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. Defendant, Newville Water and Sewer Authority, is a
governmental authority of the Borough of Newville, with its primary
place of business located at the Borough Office, 4 West Street,
Newville, Cumberland County, Pennsylvania 17241.
Facts Common to All Counts
4. Plaintiffs Kollas, Costopoulos and Costopoulos own certain
real property in the borough of Newville, Cumberland County,
Pennsylvania, known as the North Newton Hills Subdivision, which
has been in the process of development for a number of years.
5. Plaintiffs Kollas, Costopoulos and Costopoulos have
entered into an agreement of sale with Plaintiffs George J. Mallios
and Tessie Mallios for the purchase of the aforesaid real property.
See agreement of sale, marked Plaintiffs' Exhibit IIAII, attached
hereto and made a part hereof.
6. According to the addendum to the aforesaid agreement of
sale:
Buyers are responsible for all costs for the sub-division
including the Sewer reservations by Newville Borough.
The cost for the sewer reservation is $28,732.00. Seller
will purchase the sewer reservation prior to settlement
within the allotted time provided by the sewer authority.
Seller will transfer the sewer reservation to the Buyers
at time of settlement. Buyers will reimburse the Sellers
for the cost of the sewer reservation, $28,732.00, at
time of settlement. If the sewer reservation costs
exceed $28732.00, this agreement is null and void.
See addendum to agreement of sale, marked Plaintiffs' Exhibit IIBII,
attached hereto and made a part hereof.
7. On or about November 20, 2002, William W. Thompson,
Esquire, assistant solicitor for Defendant, faxed a draft IISewer
Agreement - Newville Borough Water and Sewer Authority -- Project:
North Newton Hills, Subdivision Phases II and 11111 to Norman
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Dellinger, the real estate agent handling the sale of the aforesaid
real property. See draft sewer agreement, marked Plaintiffs'
Exhibit IICII, attached hereto and made a part hereof.
8. According to the aforesaid draft sewer agreement, the
Defendant Authority granted reserve sanitary sewage capacity for 44
(forty-four) EDUs (equivalent dwelling units) at $653 (Six Hundred
Fifty-three Dollars) per unit for a total of $28,732.00 (Twenty-
eight Thousand, Seven Hundred and thirty-two Dollars and No Cents) .
See draft sewer agreement, Part B, paragraph 1, page 4, Exhibit
IICII.
9. Also, according to the aforesaid draft sewer agreement,
the Defendant Authority set a reservation rental charge for the 44
(forty-four) EDUs at $1,168.20 (One Thousand, One Hundred sixty-
eight Dollars and Twenty Cents) or $4,672.80 (Four Thousand, Six
Hundred seventy-two Dollars and Eighty Cents). See draft sewer
agreement, Part B, paragraph 2, page 4, Exhibit IICII.
10. Plaintiffs Kollas, Costopoulos and Costopoulos are
referenced in paragraph 2 of the aforesaid draft agreement as the
current owners of the II [1] ands for the development. II See draft
sewer agreement, paragraph 2, page 1, Exhibit IICII.
11. At all times relevant herein, Fred A. Potzer, Newville
Borough Manager, was an agent, servant and/or employee of Defendant
Authority with the title of IIAuthority Managerll and acted within
the scope of its authority and in the course of its agency,
3
servitude and/or emploYment.
12. By letter dated November 22, 2002, Fred A. Potzer, IIFOR
THE NEWVILLE WATER AND SEWER AUTHORITY, II wrote to Norman Dellinger,
the real estate agent handling the sale between the Plaintiffs, and
informed him that the Defendant Authority, at its meeting of
November 20, 2002, agreed to preserve reserve capacity for 44
(forty-four) new homes in the North Newton Hills Subdivision
(phases II and III); that the authority's assistant solicitor,
William Thompson, was in the process of revising the necessary
agreement and would be forwarding it to him for signature by the
parties; and that a copy of the letter was being forwarded lito the
North Newtown Township Board to Supervisors to confirm that you
have reached agreement with the Newville Water and Sewer Authority
to provide water and sewer services to the proposed development. II
See letter of November 22, 2002, marked Exhibit liD II , attached
hereto and made a part hereof.
13. By letter dated December 19, 2002, William Thompson,
assistant solicitor for the Defendant Authority, informed Norman
Dellinger, the real estate agent, that the Defendant Authority, at
its December 18, 2002 meeting, adopted a resolution significantly
increasing the connector fee to the sewer system from $653 (Six
Hundred Fifty-three Dollars) to $1,041 (One Thousand Forty-one
Dollars) per EDU (equivalent dwelling unit); that if the aforesaid
sewer agreement was not executed and the reservation charge of
4
$28,732.00 (Twenty-eight Thousand, Seven Hundred and thirty-two
Dollars and No Cents) was not received by January 22, 2003, the
aforesaid sewer agreement would be void and the subdivision would
be subject to the fees adopted on December 18, 2002; and that any
questions should be referred to Fred Potzer, the borough manager.
The letter indicated that a copy of the letter was sent to IIFred
Potzer, Water and Sewer Authority. II
See letter of December 19,
2002, marked Exhibit liE II , attached hereto and made a part hereof.
14. On January 21,2003, Plaintiffs Kollas and George
Mallios, pursuant to the directive of Authority Assistant Solicitor
Thompson, telephonically contacted Fred Potzer in his capacity as
manager of the Defendant Authority, requested an extension from the
Defendant Authority to execute the aforesaid sewer agreement and to
remit the reservation charge of $28,732.00 (Twenty-eight Thousand,
Seven Hundred and thirty-two Dollars and No Cents), and received
from the Defendant Authority an extension until January 28, 2003 to
accomplish same.
15. Plaintiffs Kollas and George Mallios confirmed the
aforesaid extension from the Defendant Authority by fax letter to
Fred Potzer of the Defendant Authority on January 21, 2003:
Please be advised that William C. Kollas, William C.
Costopoulos and James C. Costopoulos, owners of the
remaining ground in North Newton Hills Subdivision Phases
II and 111[,] will exercise the reservation of the sewer
capacity for North Newton Hills and will remit to you the
sum of $28,732.00 on or before January 28, 2003. In the
interim, we will have a sewer agreement executed by these
5
gentlemen or their assigns and sent to you as well.
See letter of January 21, 2003, marked Exhibit IIFII, attached hereto
and made a part hereof.
16. By letter dated January 23, 2003, G. Bryan Salzmann,
solicitor for the Defendant Authority, notified Plaintiff Kollas
that the Defendant Authority, at its meeting of January 22, 2003,
had denied their request for reservation of sewer capacity; that
since the sewer agreement and reservation charge were not received
by Defendant Authority at that meeting, the sewer agreement was
void; and that Defendant Authority would enter into new
negotiations for an agreement subject to the new rate of $3,166.00
(Three Thousand, One Hundred and Sixty-six Dollars and No Cents)
per EDU. See letter of January 23, 2003, marked Exhibit IIGII,
attached hereto and made a part hereof.
17. By letter dated January 28, 2003, Plaintiff Kollas
outlined the above history to Defendant Authority Solicitor
Salzmann; pointed out to him that Fred Potzer had advised him and
George Mallios that so long as they exercised their option to
reserve sewer capacity and paid the reservation charge on or before
January 28, 2003, they would have complied with the sewer agreement
given to Mr. Mallios; stated that some errors were in the draft
sewer agreement that had to be corrected and so it could not be
executed by January 21,2003 regardless (e.g., it stated that there
are 26 residences in Phase III and 18 residences in Phase II when
6
it is the reverse); and requested that Defendant Authority honor
the terms of its commitment as set forth in the sewer agreement.
See letter of January 28, 2003, marked Exhibit IIHII, attached hereto
and made a part hereof.
18. By letter dated February 21, 2003, Leroy Finkey, chairman
of Defendant Authority, informed Plaintiff Kollas that Defendant
Authority had denied their request for reconsideration; that
Plaintiffs Kollas, Costopoulos and Costopoulos were never parties
to the sewer agreement; that the new January 2003 tapping fee was
in effect for all applicants; and that Defendant Authority Manager
Potzer was not authorized to grant the extension of time to
Plaintiffs. See letter of February 21, 2003, marked Exhibit 11111,
attached hereto and made a part hereof.
Count I: Promissory Estoooel
19. The averments set forth in paragraph 1 through 18 above
are incorporated herein by reference.
20. Defendant Authority promised Plaintiffs that they could
have a seven (7) day extension to execute the aforesaid sewer
agreement and to remit the reservation charge of $28,732.00
(Twenty-eight Thousand, Seven Hundred and thirty-two Dollars and No
Cents), that is, until January 28, 2003, which promise Defendant
Authority should have reasonably expected would induce Plaintiffs
not to do so before that date as opposed to January 21, 2003, the
original date.
7
21. In point of fact, Plaintiffs refrained from executing the
aforesaid agreement and remitting the reservation charge of
$28,732.00 (Twenty-eight Thousand, Seven Hundred and thirty-two
Dollars and No Cents) on or before January 21, 2003 based on the 7
(seven) day extension of time granted them by Defendant Authority.
22. Had Defendant Authority not given the extension of time,
Plaintiffs would have executed the aforesaid sewer agreement and
remitted the reservation charge on January 21, 2003.
23. As a result of the detrimental and foreseeable reliance
of Plaintiffs, the promise of Defendant Authority should be
enforced or, alternatively, monetary damages should be awarded
Plaintiffs based on the latest connection fees, that is, a total of
$139,304 (One Hundred Thirty-nine Thousand, Three Hundred and Four
Dollars) (44 EDUs at $3,166.00 per EDU).
8
WHEREFORE, Plaintiffs hereby demand judgment against Defendant
Authority and this Honorable Court is respectfully asked to order
and direct Defendant Authority to accept the aforesaid sewer
agreement pursuant to its original terms in all respects, including
as to the reservation and rental charges or, alternatively, award
monetary damages of $139,304 (One Hundred Thirty-nine Thousand,
Three Hundred and Four Dollars) .
RESPECTFULLY SUBMITTED:
. 1
(~~
-------- ..
KOLLAS AND KENNEDY
1104 Fernwood Avenue
Camp Hill, Pennsylvania 17011
Phone: (717) 731-1600
~
DATED: March 5 ' 2003.
9
VERIFICATION
I verify that the statements made in the foregoing document
are true and correct to the best of my knowledge, information and
belief. I understand that false statements herein are made subject
to the penalties at 18 Pa.C.S. ~ 4904 relating to unsworn
//7
/- /d'
Wi~~ Costopoul08
falsification to authorities.
/
~.
DATED: March J , 2003.
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CENI~AL ~IA1~ ~ALIY
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STANDARD AGREEMENT FOR TIlE SALE GF VACttNT LAND
This form r~C'ulluncrlllcd .md approved fur, but nut rc."lrk:lcd 10 use by. the Jnelllbcrs of Ihe PCllOs)'lv.Ulia Assodalion of REAl TORS8 (PAR).
A1S- VL
~YI<:R'S BUSINf?t;S REI.A.: TIO~IIIP WITIII)A UCI~NSlm RROKIt:R
IlROKER (Company) L..e~ ";(/)Q.JJ ...J7"4'~_./r':!1I2c1'4 .v. PHONI~_;;? Yo" ~Q___
ADDRF..8S L.2::'_.3'nJ_::nE'~-L- SU IT:~p_C,,,,,p;q~~ I"AX -~r;Ld-.:i.3S CL_
B1~()KER IS TIlE A(;J~NT FOR IU1YRR IlL'SignatL..1 Agenl(s) r..r nllyer, ir applicable: ____
OR ____
Broker is NOT the Agent 'or nllyer and is II/an: 0 AGENT FOR Sm.I.~:R ~SUIlAG~:.NT ~'OR SJ.:LU:n 0 TRANSACTION I.JCENS~:E
... ---~'.
Wheo the same Broker is Agent for Seller and Agent for Buyer, Broker is" Dual Agent. All of Broker'slkcnsees arc also Dual Agents UNI.ESS
Ihere are sepa..."te IlcsiRnntcd Agenl(s) ror Ruyer and Seller. If the same Ucen.'ICC Is d...iglllllcd 1'01' Seller and nllyer, the I Jcensee is " Dual Agent.
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I. ["bis lIgreeme1)L daled_ /.)3 _~. .~. -::O.-;2i;{5.2?-.- _.___.___. is between
S~:U.EK(S) Cl/~{6mo r:. ~LL8.L~d:~ c... ~ "q,C-_~_l..d.t!. o.f__
__._~~~. C_.___C~~Q- .!!.L~__..__.... .__ __.___._._...... __..._..__.__ called "Seller." and
~~~.ER(S~~~I\ J: '!l'.kM~_~~
2. PROPERTY (1-98) eller herehy agrees to sell and convey to Buyer, who hcn:by agrees to purchase:
~TCER"fAIN~~eeeorgro:~th h~~rov;gjls th~~rc~~~.:t=~__ ._ ..
~1---21. __ ~u.?T~~nlbe.__.._.1~/ 0' ~~,
COllnty of ___..'Ut"'YY)Qe,./A..."1a ____ In the CommORw<:.aUb ..'Pennsylvallia. Zip Code ~il_._._______
Identification (e.g., Tax J[) #; l'areel #; Lot, Rlock, Deed Book, Page, Recording Dale) _._ _____._
_.__.__ called "Uuyer."
.._-~-
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3. TERMS (7-01)
(A) PurclUlse I'rice
U.S. Dollars
.,... ..... ,.... ~...... .,~ M "'-'of. ,} ( _ __~
1. Cash nO' check at signing this Agreemenl: ~.~~~ .
~: Cash Ilr check within -=:=_~~ys of lhe eXeCUlrOn of Ihis Agrceme . ~__
4. Cash, cllshier's or cCl1ified chL'Ck altime of settlement: _~
TOl'A L
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(II) [)~po5i's paid on accoulll nf purchase price to be held by Broker for Scller, unless otherwise Slated here:
(C) Seller's-~;:;lten appr:;v-;;;-;~ be~re' ~/tJ~~----
(D) Setllement to be on . ~I!' go , or befnre if Buyer and Seller agre~.
IEl Conveyance from Seller will be by fee simple deed of special warrdnty unlcss otherwise staled herc: .________
IF) PlIyment o:?7br laAft2'rbe';;ded ei'1o~~w~:e;7krller unless otherwise stated hcre: _____.
(0) AI time or selllement, the following will be adjusted pro.rala on a daily basis between Buyer and Seller, reimbursing where applicable:
laxes (see Noliccs and Information Regarding Tax Proration); reots; interest on mortgage assumptions; condominium fees and home.
owner associalion fees, if any; waler and/or sewer rces, if any, togelber with any olher lienable municipal services. The charges arc to
he pro.rated for the period(s) covered: Seller will pay lip 10 and including the datc of settlement; Buyer will pay for all days following
seulement, unless otherwise stated here: __
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4. FIXTURF..8 AND PI~RSONAI" PROPERTY (1-00)
(Al ~!l~!lhis sale/n IIrch~e a~~ itq~~_IY~:~}~l/~:i1{;l_td~Udcd:
(8) I.EASEDjle, (items not 0 ned1>ySell ~~ ~.._~_~~__&/-
Ie)
5. SPECIA~. CL IlSF.-S (7-01) ~U-l""'l se ~ . ? [7/1.1
(A) Re~ signlnglbisAg.--nent:-:ti, lu/./~ IJ)./fJ1L Jf/?~.IA.. 0( - (IC/
LlI B"ryer and Seller have received Ihe ~mer"ffutic7a. a,lop~;rb;~tate R",.I Estate Commiss;OI~ Code ~35.336.
llI"8y1er and Seller have received a stalemoot of tllc;r respective estimated closing costs_
llYBuyer has received the Deposil Moncy Notice (for cooperative sales when Broker for Seller is holding deposit money).
(8) Tbe following are a part of this Agreement if cllCCkcd:
o Tenant.Occupied Propeny Addendum (PAR Fonn TOP) 0
o 0
;] PLAINTIFF'S
I FHIBIT
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Buyerlniti..ls: &___
AIS- VI, Page I of I)
Seller InIUa/s:
m P....ylv_i. Auodatloa of
La REALTORS"'
AEI\lJOAIfI n.......""....bl....IIn~
COPYRIGHT PENNSVI.vANIA ASSOCIA'nON OF RIlAUURS" 19!>l1
001
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. .DATESlTIME IS OF THE F.ssENCE (5-01)
(A) 'The satd date for seltlemenl and "II olher dates and times referred 10 for Ihe perfonnance of any of Ihe obligalions of Ihis Agreemenl ",e
hcreby agreed 10 be of Ihe essence of Ihis Agreement and must be adhered to.
(B) For the purposes of this Agreement, number of days will be counted from the dale of execltlion, by exclflding Ihe day Ihis Agreement wa.'
execuled and including the last day of the time period.
(C) The dale of settlement is nol extended by any other provision of this Agrcemenl and may only be exlended by mulual written agreement of
the p8ltles.
7, FINANCING CONTINGENCY (7-01)
o WAIVED. This sale is NOT conlingent on financing.
o ELEC"ffiD
(A) This sale is ennlingenlupon Buyer obtaining financing as follows:
I. Annlllnt of loan $
2. Minimum Tern' years
3. Type: 0 Land Acquisition Only
OLand Acquisilion and Construction
o Other
4. lnlerest rule ____- %; however, Buyer agrees to accept tbe inlcrcst ralc as may be committed by tile lender, not 10 exceed
a maximum interest rate of - %.
s. Disc,"ml poinls, I"'tn origination, loan placement and OIher fees clulrged hy Ihe lender as a perccnlage of the Iemn (excluding any insllr-
,mee premiums and VA lunding fee) nOIto exceed ._ % of lbe loan. '
The intcrest rule and fees provisions required by Huyer are satisfied if a lender makes available 10 Buyer the righlto gllarantee an inleresl ralc
al or below the Maximum Interesl Rale specified herein witb the per~'enlalle fees at or below the amonnl specified herein. Buyer gives Sellel
the rigbl, at Soller's sole option and lIS permitted by Ihe lending instilation and applicable laws, to cUlllribute financially, withoUI pnllni"" "I
reimbursement, t" the Huyer and/or lender to make tbe ahove terms available to Buyer.
(B) Within 10 days of the execulion of this Agreement, Buyer will make a completed, wrillen financing application to a responsible lender accord-
ing lIlthe lerlllS above. 11ac Broker for Buyer. iJ' any, otherwise the Broker rur SeI\eI' is authorized 10 COmDUlIlicate witb tbe lender for
tbe purposes nf assisting In Ibe loan process.
(C) 1. Upon re,,,,ipt of a financing commitment, Buyer will promptly deliver a copy of the eonuniulIellt 10 Sellcr.
2. Financill!!, eommiunenl date . If n written commitmenl is nul reeeivod by SelicI' by the nbove d"l"-
Buyel' and Seller agree to extend the commitment dalc until Seller terminates tbis Agl'eement ill writillg. . .
3. Seller h,"' the option to lenninale this Agreement in wriling, on ",after tbe financing commilment d"le. if tbe timmcing COllllllillllCnl:
8. Is not valid untillhe dllte of sentcmenl. OR '
b. Is conditioned upon the sale and ~t of any other property, OR
e. Cuotains any olher coodition not specified in this Apeemenl.
4. In the event Seller does not tenninale Ihis Agreen,ent ns provided above. Huyer has the O\,lion Iu tenninalc tbis Agreemenl in writing if
Ihe financing commitment:
a. Is aot obtained by or valid until the dale of settlement, OR
h. Is cnndilioncd upon the sale lIDd settlement or any other property whicb do nol occur by OIC date of settlement, OR
c. COlllaills any olher c'Ondilion not speciflCd in Ihis Agreement which Buyer is unable to slItisfy by Ihe dllle uf selllemelll
s. If Ihis Agreemenl is terminated as specifted in paragraphs 7 (C) (2). (3) or (4), 1111 deposit monies paid nlllleemlOt of purchase price will
be relumet.! tn Buyer_ Buyer will be respon..ihle for any premiums for mechanics lien insurance and/or litle search. or rec fur eancellntion
01 same, if any; ANDIOR any premiums for flood inSOfllllCC, mine subsidellce insuolnce, and/nr fire insurance wilh extended cuverage.
insurance binder elulrges or eaneellatil)O Ii:e, if MY: AND/OR any appruisul fee.. and ehurges paid in ,nlvan"" 10 lender.
(D) SeDer Assist
o NOT APPLICABLE
o APPLICABLE. Seller will pay:
o $ , maximum, toward Buyer's closing COSL' as permiued by Ibe lender.
o
8. INSPECTIONS (1-96)
(A I Seller hereby ngfCCS In permil inspections by authorized appraisers. repUlable cerlifiers, inSllrel"s representatives, surveyors, municipal nfficials
and/or Buyer as may he 1'C<juired by lhe lending institutions, if any, or insuring agencies. Seller furlher agrees 10 permit allY other inspecliuns
required by or provided for in the lenuS of this Agreement.
(B) Buyer agrees thai Buyer, or anyone on lhe Property at Buyer's direclion or on Buyer's behalf, willleuve Ihe Property in its same condition. In
the case of damage, Buycr will bear the risk of restOling the Property or of reimbursing Seller for any loss of value.
(C) Buyer reserves Ihe right tu make a pre-settlenlCnt inspeelion of the Property. Bayer's righl to make Ihis inspoclion is not waived by any olher
pmvision of this Agreemenl.
9_ STATIlS OF WATER (7-01)
(A) An off-Property source of water ~
~.. nOl availablc for Ihe PropcI1Y. .// Q
is available for the Property through (Name of Service Provider) 'IuJr/lftU? rJO ro
C CTlON TO OFF-PROl'ERl'Y WATER SOURCE CONTINGE
WAIVED. Buyer acl<nowledges thai Boyer has the option 10 make this AglCCffiCllt contingenlnn delennining Ihallbe terms of connecting
the Property to an off-Property water source are accepI8ble to Buyer. Buyer WAIVES nuS omON and agrees 10 Ihe RELEASE set forth in
paragraph 24 of this Agreement.
o ELECTED. Buyer will, within _ days of the execllUon or this Agreement and at Buyer's expensc, delermine the terms of connecting
lhe Property to the water source. If the termS of connection are not acceptable to Buyer, Buyer will;
I . Accepllhe Property as is and agree to the RELEASE set forth in paragraph 24 of this Agreemenl, OR
2. Tenuinalc this Agreement in writing, in which case all depOSil monies paid on accounl of purchase price will he retumed promplly
to Buyer und this Agreement of Sale will he VOID.
~) Seller represents thai the Property is served by an on-sile water source.
o lTE WATER SERVICE INSPECTION CONTINGENCY
WAIVED- Buyer acknowledges thai Buyer has the option ID reqllesl an on-site water service inspection of tbe Property. BUYER WAIVES
THIS omON and agrees to the RELEASE set forth ill paragraph 24 of this Agreement.
o ELECTED
1. Buyer has the option,within _ days of the execulion oflhis Agreement and at Buyer'S expense,to deliver to Seller a wrillen inspec.
tioll report by a qualified, proressional water teStiJlg company of the quality and/or quantity or the on-site water service.
2. Seller agrees 10 locale and provide access to the on.slle (or Individual) water system, if applicable, at Sellel"s expense, if r"'1uircd by Ihl
inspection company.
3. If tbe report reveals that the waleI' service does nOI meelthe mlnimam standards of any applicable governmenlal authority and/or fails It
satisfy lhe requirements for quality and/or quantity as set by the lender, if any, then Seller will, wilbin - days of reeeipl of Ih
reporl, notify Buyer in writing of Seller's choice to:
a. Upgrtlde the water service 10 the minimum acceplable levels, before settlement. in which case Buyer accepts the Property an
agrees to the RELEASE. set forth in paragraph 24 of this Agreement, OR
b. Nol upgrade the walei' service.
4. If Seller chooses nolto apgrade the service 10 minimum acceptable levels, or fails to respond wltbln Ille time given, Bayer will, witb
_ days, either:
a. Accept the Property and the water service and, if required by the Icncler, if any, and/or any governmental aUlhorilY, upgrade Ihe wal
service before setdement or within the lime required by the lender, if any, and/or any governmental authority, at Buyer's expen
and with Seller's permission, which will nOI be unreasonably withheld, and agree to the RELEASE sel furth in paragraph 24 of ~
Agreemenl. If SeIter denies Buyer pennlssion to upgrade lhe water service, Buyer may, within 5 days of Seller's denial, tennin
Ihis Agreement. UHuyer terminates this Agreement, all deposil monic.. paid on account of purchaSe price will be returned p.-omp
to Buyer and this Agreement witl be VOID, OR
b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be relUrned promptly 10 Bu
and this Agreement will be VOID.
(e) 0 Buyer is aware that there is no developed waleI' source for the Property.
15
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133
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Buyer Inlllals:r
Seller Inilials:
A/S-VL Page 2 of 6
llN-SITE WATER SERVICE APPROVAL CONTINGENCY
.0 WAIVED. Buyer acknowledges tbat Buyer has the oplion 10 make Ihis Agreement contingent on receiving municipal approval for the instal-
lation of a well. BUYER WAIVES THIS OPTION and agrees to the RELEASE sct forth in paragraph 24 of this Agrccmenl.
o ELECTED. Wilhin 10 days of the execution of Ibis Agreement, Buyer will make a complllted, wrilleUllPplicalion for Ihe municipal approval
for Ibe inslallation of a well. This sale is conlingentupon Buyer obtaining, wilbin _ days of Ibe execution of this Agreement, munici-
pal approval for Ihe il1.<lallalion of a well. Buyer will pay all costs associated wilb lhe application for approval, including bul nol limited 10,
any municipal fees and ",st expenses. In the event Buyer is unable 10 secure approval for well installalion. Buyer will eilher:
I. Aceepllbe Property as is and agree 10 the RELEASE set forth in parngraph 24 of Ihis Agreement, OR
2. Terminate this Agl'eenlCnt, in which case all deposit monies paid on account of purchase price will be retuOled promptly to Buyer
~ Ibis Agreement will be VOID.
10. STATUS SEWER (7-01)
(A) Se r reprc.-ents Ihat Prop<.'rty is served by:
Off- Property Sewage Disposal System
o Individual On-Lot Sewage Disposal System (See Sewage Notice I)
o Individual On-Lot Sewage Disposal System in Proximity to Well (See Sewage Notice I; see Sewage Notice 4, if applicable)
o Ten-acre Permit Exemption (See Sewage Notice 2)
o Holding Tank (See Sewage Notice 3)
o None (See Sewage Notice l)
o None Available (See Sewage Notice 5 or Sewage Notice 6, as applicable)
o
(B) Connection to un off-Property sewage disposal syslem
o is not available for the PropertY.
o is available for the Property through (Name of Service Provider)
PUBLIC Sy,,"EM CONTINGRNCY
o WAIVED- Bnyer acknowledges that Buyer has the option to make this Agreement contingent on receiving municipal approval for the con-
nection of the Property to a sewage disposal syslem. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 24
of this Agreement.
o ELECTED. Within 10 days of the execution of this Agreement, Bnyer will make a completed, written application for the municipal approval
for the conneclion of the Propet1y to a sewage disposal sy.'lCm. This sale is contingent upon Bltyer obtaining, within - days of the exe-
cution of this Agreement, municipal approval for the connection of the Property to a sewage disposal system. Buyer will pay all.<;"sts associ-
ated with the applicalion for approval, including but not limited 10, any municipal fees and test expenses. In the event Buyer is unable to seenre
approval for sewer connection, Buyer will either.
I. Accept the Property as is and agree to lhe RELEASE set forth in paragraph 24 of this Agreement, OR
2. Tenninate Ibis Agreement, in which case all deposit monies paid on account of purchase pricc will he returned promptly to Buyer and this
~ Agreement will be VOID.
(C INDIVIDUA.L ON.I,OT SEWAGE DISPOSAL INSTALLATION CoNTINGENCY
WAIVED. BlIyer acknowledges Ibat Buyer has the option to lIll1ke Ibis Agreement contmllent on receiving all applicable government
approval for lite installation of an individual sewage system. BUYER WAIVES THIS 0P'I10N and agrees to lbe RELEASE set f0l1h in para-
graph 24 of this Agreement.
o ELECTED. Within _ days of Ihe exccntion of Ibis Agreement,
o Buyer
o Seller
willllll1ke a completed, written application to all appropriate authoriti.. for lhe installation of an on-lot sewage disposal system, and will pay
all costs associaled with Ibe application for approval, including but not limited to, any fees and percolation lest expenses. This sale is contin-
gent upon tlte receipt of all applicable government approval for the installation of un individual sewage system wilbin - days of the exe-
cotion of this Agreement. In the eventtesl results are unacceptable to Buyer or approval for an individual sewage syslem is unable 10 be secured,
Buyer will either:
I. Acceplthc Property ao; is and agree to the RELEASE set forth in paragraph 24 of Ibis Agreement, OR
2. Tenninate this Agreement, in which casc all deposit monies paid on aceOllnt of purchase price will be returned promptly to Buyer and Ibis
Agreement will be VOID. Buyer will promptly deliver all information and test "",ults acquired Ihrollgh Ihe approval process to Seller.
(P) ..)I<lDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECftON CONTINGENCY
I\V WAIVED. Buyer acknowledges that Buyer has the option to request an individual oo-Iot sewage disposal inspection oflbe Property. BUYER
WAIVES THIS omON and agrees to the RELEASE set forth in paragraph 24 of this Agreement.
o ELECTED
I. Buyer has the option, within _ days of the execution of Ibis Agreement and at Buyer's expense, to deliver to Seller a written inspec-
lion report by a qualified, professional inspector of the individual on-lot sewage disposal systeon.
2. Seller, at Seller's expense, agrees, if and as required by the inspection company, to locate, provide access to and empty the individual on-
lot ..wage disposal system. Seller also agrees to restore the Property, at Seller'. expense, prior to settlement.
3. If tbe report reveals defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, WIthin
_ days of receipt of the report, notify Buyer in writing of Seller's choice 10:
a. Correct tbe defects before scttlement, including retests, at Seller's expense. in which case Buyer accepts the Property and agrees 10
the RELEASE set forth in paragraph 24 of this Agreement, OR
b. Not correct the defects, or if Seller rails to respond within Ihe lime given, Buyer will, within - days, either:
I) Accept Ibe Properly and the syslem and, if required by the Ieoder, if any, andlor any governmental authority, correct the defects
before setlJernent or wllhln the time required by the lender. ir any, and/or any governmental authority, at Buyer'S sole expel1....
and wilb Seller'. permission, which will not he unreasonably withheld, and agree 10 the RELEASE set forth in paragraph 24
of Ibis Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 days of Seller's denial, tenni-
nate this Agreement. If Buyer terminates this Agreement, all deposlt monies paid on account of purchase price will be returned
pt-omptly to Buyer and Ihis Agreement will be VOID, OR
2) Terminale this Agreement in writing, In which case all deposit monies paid on account of purchase price will be retumed
promptly to Buyer and Ibis Agreement will be VOID.
4. If the report reveals lbe need to expand or replace Ibe existing individual on-lot sewage disposal syslem, Seller may, wilbin - days
of receipt of the report, submit a corrective proposal to Broker for Buyer, ir any, otherwise to BlIyer. The corrective proposal will include,
but aot be limited to,the name of the ternediation company; provisions for payment, including retests; and completion date for corrective
measures. Within 5 days of receiving Seller's correcIive proposal, or Ir no corrective proposal Is received wltbin lbe time given, Buyer
will:
a. Agree to the termS of lhe corrective proposal, if any, in writing, in which case Buyer accepts Ihe Property and agrees to the
RELEASE set forth in paragraph 24 of this Agreement, OR
b. Accept the Property and Ibe system and, if required by the lender, if any, and/or any governmental authority, correct the defec~
before sett\emellt or within the time required by the lender, if any, and/or any governmental authority, at Buyer's sole expense anI
with Seller's pennisslon, which will not be unreasonably withheld, and agree 10 Ibe RELEASE set forth in paragraph 24 of thi
Agreement. If Seller denies Buyer permission 10 correct the defects, Buyer may, wilbin 5 days of Seller's denial, lenninate thi
Agreement. If Buyer termlnales this Agreement, all deposillDOoies paid on ac<Xlunt of purchase price will be returned promptly t
Bttyer and this Agreement will be VOID, OR
c. Terminale Ihis Agreement in writing, in which case all deposit monie.< paid on account of purch.... price will be returned prompt!
to Buyer and this Agreemeot will be VOID.
11. ENVIRONMENTAL AUDrr & PRoPERTY INSPECTIONS (1-98)
(A) Sellcr represenlS and warrant. Ibat Seller bas no knowledge, except as listed below, of whether:
\. The Property has been contaminated by any substance in any manner which requires remediation;
2. The Property contains any wetlands, flood plains, or any other environmentally sensitive areas, development of which is limited or pI
eluded by law;
3. The Property contains any substance, the removal or disposal of which i. subject to any law or regulation;
4. Any law hall been violated in the handling or disposing of any material waste or the discharge of any malerial into the soil. air, surf,
water, or ground water;
5. The Property COfItains undergroUnd fuel or liquid storage tanks.
EXCEPTIONS:
I
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168
189
no
111
172
173
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175
116
111
118
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181
IS2
183
184
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166
181
108
189
t90
191
t92
193
194
19&
196
191
198
199
200
201
292
203
284
285
286
201
208
209
210
211
212
213
214
ns
216
211
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
231
238
239
249
241
242
243
244
245
248
241
248
249
250
251
25?
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254
255
256
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I
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Buyer Initials:
~
AIS- VL Page 3 of 6
Seller Initials:
1fiU
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162
16,
15'
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liij
HiIJ
166
1/0
HI
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173
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26
26
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AIS- VL Page" of Ii
Seller Initials:
259
260
261
262
263
Z64
255
266
267
268
269
270
271
272
273
274
275
2.16
271
278
279
200
281
282
283
28-1
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286
287
268
289
290
291
292
293
294
295
296
1.97
298
299
300
301
302
303
304
305
306
307
308
309
310
3.\'
312
313
311
31;
316
317
310
319
320
321
322
32:1
324
325
326
327
328
329
330
331
332
333
334
335
336
33"1
3:16
339
340
341
341
343
344
3015
346
347
348
349
3!111
361
352
353
354
350
366
J5
266
267
28a
268
270
271
272
273
274
275
276
277
278
279
2&0
2&1
2&2
2&3
284
285
286
287
268
288
200
291
292
293
294
295
286
2B7
288
289
300
301
302
303
304
305
306
307
308
30B
310
311
312
313
314
315
316
317
316
318
320
321
322
323
324
325
328
327
328
329
330
331
332
333
334
335
336
337
33B
339
340
341
342
343
344
345
346
347
348
349
350
361
352
353
354
355
358
J) Seller and Buyer acknowledge Ihat Broker:
I . Is a licensed real estate broker;
2. Is 1101 an expert in constrUClion. engineering, or environmental matters; and . '
3. Haa not made and will nol make any repreaentB1ions Dr warranties nor conduct investigations of the environmental condilion or suila-
bililY of lhe Property, Dr any adjacenl propcrt)'.
(aANVlRONMENTAL AUDIT/lNSPECTION CONTINGENCY
[J WAIVED. Buyer understands that Buyer has the option to request audits and inspections of the propeny. BUYER WAIVES THIS OPTION
and agrees to the RELEASE set fonh in paragraph 24 of this Agreement. Buyer reserves the right to make a pre-selllement inspection of the
Propeny.
o ELECTED. Within _ days of the execution of this Agreement, Buyer bas the option, al Buyer's expense, to have the following audits
or inspections completed by a licensed or otherWise qualified professional (check the inspections that Buycr will ooler):
o Environmental Hazards
o Underground Storage Tanks
o Property BoundarylSquare Footage Verifieation/Delineation
o Flood Plain Verification/Delineation
o Wetlands VerificationIDelineation
o Specific Property Inspection limited to
o
If Buyer is nol satisfied with any condition as stated in any written report Buyer receives pursuant to the alldits or inspections obtained under
this provision, Buyer will, within the time allotted for obtaining such audits or inspecticms:
1_ Accept the Property with the information stated in Ihe report(s) and agtee 10 the REI.EASE set forth in paragraph 24 of this AgreemCIlI,
OR
2. Tcnninnte Ihis Agteement in writing, in w1,ich case all deposit monies paid on accounl of purcha.o;e price will be returned promptly to
Bllyer and this Agreement will be VOID.
12. NOTICES 8< ASSESSMENTS (1-98)
(A) Seller tepre,.ents as of Seller's execution or lhis Agreement, Ihal no public improvement andlor homeowner association assessments have been
made against the Propeny which remain unpaid and thaI no notice by any government or public autbority has been served upon Seller or any-
one on Seller's behalf, including notices relating to violations of zoning, housing, building, safely or fire ordinances which remain uncorrected.
and that Seller knows of no condition Ihat would constitute violalion of any such ordinances which remain uncorrected. unless othelwise spec-
ified here:
(B) Seller lenows of no other polential notices (includilli violations) and assessments except as follows:
(C) In the event any notices (including violations) and _ssmen18 are received af1er execution of this Agreement and befnre settlement. Seller will
notify Buyer in writing, within 5 daya of receiving the nolice or assessment, that Seller will:
I. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees 10 the RELEASE Sel forth
in paragraph 24 of this Agreement, OR
2. NOT comply with notices and assessmenla at Seller's expense. in which case Buyer will notify Seller within 5 days in writing that Buyer will:
a. Comply with the notices and assessments at Buyer's expense and agree to the RELEASE set fonh in paragraph 24 of this Agreemem,
OR
b. Terminate this Agreemenl, In which ease all deposit monies paid on account Dr purchase price will be returned prompdy to Buyer
and this Agreement will be VOID.
If Buyer falIA to ntltIfy Sener wltbln the time given, Buyer accepts the Property and agrees to the RELEASE set forth In
p8ragrapb 24 of thin Agreement.
(D) Buyer is advised that access to a public road may require issuance of a highway occupancy permit f.'Om the Pennsylvania Depanment of
Transportation or appropriate authorily.
13. TITLE, SURVEYS, 8< COSTS (7-111)
(A) The Pmpeny is 10 be conveyed free and clear of all liens, encwnbrances, and ea.'lCll\Cnls, EXCEP'I'ING HOWEVER the following: existiag
deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, casements visible upon
the ground, easements of recool, privileges or rights of public service companies, if any; otherWise the title to the above described real estate
will be good and marketable and such as will be insured by a reputable TIlle Insurance Company nl the regular rales.
(B) In Ihe evenl Seller is unable to give a good and marl<elable title and such as will be insured by a reputable Title Company at the regular rales,
as specified in paragraph 13(A), Buyer will have the option of taking such tllle as Seller can give without changing the price. or being repaid
all monies paid by Buyer to Seller on account of the purchase price and Seller will reimburse Buyer for any costs incurred by Buycr for Ihose
items specified in paraaraph 13(e) and in paragraph 13(0) items (I), (2), (3); and in the latter event there will bc no furtber Iiabilily or obli-
galion on either of the parties hereto and this Agreement will become VOID.
(C) Any surveyor surveys which may be required by the 'TItle Insurance Company or the abstracting attorney, for the preparation of an adequate
legal descliplion of the Propeny (or the correction thereOf), will be secured and paid ror by Seller. However, any surveyor surveys desired by
Buyer or requil-ed by lender will be secured and paid for by Buyer.
(D) Buyer will pay for the following: (I) TItle search, title insurance andlor mechanics lien insurance or fee for cancellation of same, if any; (2)
Flood insurance, fire insurance with extended coverage, mine subsidence insurance, and cancellation fec._. if any; (3) Appraisal fees and
charges paid in advance to lender, If ) Buyer', CUSlOmary senlement costs and acernals.
14. ZONING CLASSWICATlON (1-98) ..
(A) Zoning CIll5Slficatlan
Failure of this Agreement 10 contain the zoning c assification (except in cases where the property (and ellch parcel thereof. if subdividable} is
zoned solely or primarily 10 permit single-family dwellings) shall render this Agreemenl voidable at the option of the Buyer, and, if voided.
any deposits tendered by Buyer shall be returned to the Buyer without any requirement for court nction.
(B) ZONING APPROVAL CONTINGENCY
o NOT APPLICABLE
o WAIVED. Buyer acknowledges tbat Buyer has the oplion 10 malee this Agreement contingenl on receiving muuicipal approval for the
intended use of the Property. BUYER WAIVES THIS omON and agrees to the RELEASE set forth in paragraph 24 of this AgreemenL
o ELEerED
l. This sale is conlingent on Bllyer receiving zoning approval, or variance, or special exception from
(municipalily) to use the Property as a (proposed use).
2. Application for the approval (or variance/special exception) will be made within _ days of the execution of this Agreement Buyer
will pay for applications, legal representadon, and any other costs associated wilh oblaining approval.
3. If the municipality requires the application to be signed by the current owner, Seller agrees to do so.
4. If final, unappealable approval is nol obtained by . Ihis Agreement will be VOID, in
which case all deposit monies paid on accollnt of purchase price will be returned promptly to Buyer.
15. LAND USE RESTRICTIONS OTHER THAN ZONING (N11)
(A) 0 Nooe Known
(8) 0 The PrOpclty, or a portion of it, is preferentially asses.'Ied for tax purposes under the following AC1S (See Land Use Restrictions Notices):
o Farmland and ForeSl Land Assessment Act (Clean and Green Program)
o Open Space Acl (an ACI enabling certain counties of the Commonwealth to covenant with land owners for preservation of land iu
farm, forest. water supply, or open space uses)
o Agricultural Area Sccurily Law, ACl43 of 1981. 3 P.S. t901 et seq. (Development Rights)
o Other
o Buyer and Seller have detemlined the consequences that may reslllt from the sale or a change in the use of the Propeny. or any portion
of it.
(e) 0 Seller has no knowledge of any covenanls. subdivision restrictions or other reslrictions affecting lbe Proper! y unless olherwise staled here:
(D) 0 Seller \1as no knowledge of any rights to timber, crops Dr minerals. excepl coal, that do not transfer wilb thc Property unless otherwise
srated here:
(E) 0 Buyer lIeknowledges lbat any land use restrictions associaled with the Property's enrollment in tbe Clean and Grecn Program or undol' lhe
Open Space Act Dr any other program identified in this paragraph 15, arc encumbrances npon the Preperty. BlIyer agrees lhst delivery of
title subject 10 lbese encumbrances will not violate Seller's duty under paragraph 13(A) of lhis Agreement.
Buyer Initials: ~-
..,._--....-.""".~~".._,,. .
C <;;OTlCE
fir~~ APPLICABLE
o APPLICABLE
Tills DOCUMENT MAY Nar SElJ., CONYEY. TRANSFIlR, INCLUDE OR INSlIRE1lIB 111Ul TO TIIB COAL AND RIGHTS 01' SIJI'I~)f(r UNDlJRNHATII THE SURFACE LAND
DESCRlBEI> OR RP.Pl!IlREI> TO HERIlIN. AND 'THB OWNER OR OWNERS OF SUCH COAL MAY HAYI! TIll! COMPl.B11l LBOAI. RlCniT TO RBM()YIl ALL SUCH COAl. AND
IN 'I1IATCONNI!C11ON, DAMAGI! MAY RESULTT011i1l SURIl'.CB OPTHIl LAND AND ANY HOUSE, IlUtLDINO OR onmR STRucruRE ON OR IN SUCH LAND. (This
nOlice is sel fonh in lhe manner provided in Section I of the Act of JI!ly 17, 1957, P.l. 984.) ''Buyer acknowledges thaI be may not be obtaining the
righl of protection against subsidence resulting from coal mining operations, and thaI the property described herein may he prolected from damage
due 10 mine subsidence hy a priVale contract with the owners of the CCl.lnomic inlereSls in Ihe coal. TIlis acknowledgmem is made for Ihe purpose
of complying wilh the provisions of Seclion 14 ofdlC Bituminous Mine Suhsidence amI the Land Conservation Acl of April 27, 1966." Buyer agrees
to sign the decd from Seller whicl1 deed will contain the aforesaid provision.
17. POSSESSION (7-01)
(A) Possession is 10 be delivered by deed, keys (if any) and:
1. Physical possession to vacant Property free of debris, with all structures hroom-c1ean, al day and lime of selllement, AND/OR
2. Assignment of existing lcasc(s), logether with any security deposits and interest, altime of settlemenl, if Property i. leased althe execu-
lion 01' Ibis Agreemenl or unless o!hetwise specified herein. Buyer will acknowledge existing leasels) by inilialing said lease(s) at time <If
execution of this Agreement
(B) Seller will not enler inlo any new leases, written extension of existing leases, if any, or additional leases for Ihe Property without the wriuen
CODl,,:nt of Buyer.
18. RECORDING (3-85) This Agreemenl will not be recorded in the Office for the Recording of Dceds or in any other office or place of public
record. and if Buyer causes or permits this Agreement to he recorded, Seller may elect to treat such aCl as a breach of this Agreement.
19. ASSIGNMENT (3-85) This Agreemenl will be binding upon !he parties, Iheir respective heirs. Ilersonal representatives, guardians and succcs-
sors, and to the extent assignable, on the assigns of the pBtties hereto. it being expressly understood, however, thai Buyer wlll notlransfer or assign
this Agreenlent wilhoutlhe written consent of Seller.
20. DEPOSIT & RECOVERY FUND (HI8)
(A) Deposits paid by Buyer wilhin 30 days of sclllement will be by cash, cashier's or certified check. Deposits. rellardless of Ihe form of payment
and tbe person designated as payee will be paid in U.S. Dollars, and will be paid to Broker or party identified in paragraph 3(B), who will relain
lhem in an escrow account until consllmmation or termination of this Agreement in confonnily wilh all applicable laws and regulalions. Any
uncashed check tendered as deposil may be held pending !he _eplllnce of Ihis offer.
(B) In the event of a dispute over entillement to deposit monies, a broker holding tile deposit is required by (he Rules and Regulations of dlc State
Rcul F.stule Comll\ill.~ina (49 Pa. Code 135.327) 10 retain Ihe monies in escrow until tho dispUIC is resolved. In Ihe event of liti'l!alillD for lhc
Iclum of depositlDooics, a hroker will distribute the monies as directed by a final ordcr of court or the wriUen Agreemcnt of Ihe partics. Buyer
and Seller agree that, in the event any broker or affilialed licensee is joined in litigation for the return of deposit monies, the allomeys' fees and
costs of the bmkcr(s) and licensee(s) will be paid by the party joining them.
(C) A Real Eslate Recovery Fund exists to reimburse any penons who bave obtaioed a final civil judgment against a Pennsylvania real eslale
licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collecl the judgment afte.' exhaust-
ing all legal and equitable remedies. For complete details abOlltlhe Fund, call (717) 783-3658, or 1-800-882-2113 (within PenllSylvania) and
(717) 783-4854 (olltside Pennsylvania).
21. PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RESALE ONLY (7-01)
o NOT APPLICABLE
o APPLICABLE
(A) Buyer acknowledges that the Property is part of a planned community as defined by the Uniform Planned Community Act. (See Deflllition of
Planncd Community Notice for the definition contained in the Act)
(B) fi5407(a) of the Act requires Seller to furnish Buyer wilh a copy or the Declannion (other than plats and plans). the bylaws, the Illles and reg-
ulations of the association. and a Certificate containing the provisions set fortb in ~5407(a) of the Act.
(C) Within _ days of lhe execution of this Agree.nent. Seller will submit a request to the association fo,' a Cenificate and the documents
necessary to enable Seller to comply with the Act. Tbe Act provides that the ...oeialion is required to provide Ihese documenls witbin 10 day.
of Seller's request.
(0) Under the Act, Seller is nOlliable to Buyer for the failure or delay of the associ.tion to provide the Certificate in a timely manner, nor is Seller
liable 10 Buyer for any erronCDus infonnalion provided by the Association and included in the Certificate.
(E) Buyer may declare the Agreement VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until
selllemenl, whichever occurs first. Bllyer's notice declaring the Agreement void must he in writing; thereafter all deposit monies will be
returned to Buyer.
(F) In Ihe event the association has the right to buy the Property (right of first refusal), and the associalion exercises thaI right, Seller will reim-
burse Buyer for all monies paid by Buyer on sceount of purchase price and for any costs incurred by Buyer for: (1 ) Title search. title insur-
ance and/or mechanics lien insurance or fee for cancellation of same, if any; (2) Flood insurance, fire insurance wilh extended coverage, mine
subsidence insurance, and cancellation fees, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if any; (4) Buyer's
custnmary settlement costs and llCClUals.
22. MAINTENANCE & RISK OF I,OSS (1-98)
(A) Seller will maintain the Property. grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal
wear and lear excepted.
(B) In the evenl any sys1<:m or appliance included in the sale of the Property fails and Seller does nol repair or replace thc item, Seller will promptly
notify Buyer in writing of Seller's choice to:
I. Repair or replace the fdiled system or appliance before settlement, or credit Buyer sl selllement for the fair market value of Ihe failed sys-
tem or appliance (this option DUlSt be acceptable to the lender. if any). In each case, Buyer accepts the Property and agrees 10 the
RElEASE set fonh in paragraph 2A or this Agreemenl, OR
2. Make no repairs or replacements and nol credit Buyer at settlement for the fair market value of the failed system or appliance. in which
case Buyer will mlliry Seller in writing within 5 day. or before selllemenl, whichever is sooner. Ihat Buyer will:
n. Acceplthe Property and agree to the RELEASE set fonh in paragraph 24 of Ihi. Agreemenl, OR
b. Terminate this Agreement, in which case all deposit mouies paid on account of purchase price will be returned promplly 10 Buyer
and Ihis Agreement will be VOID.
(C) Seller will hear risk of loss from fire or other casualties llntil time of selllement. In the event of damage by fire or other casualties to any prop-
eny included in lhis sale that is not repaired or replaced prior to selllement, Buyer will have the option of rescinding Ihis. Agreemenl and
promptly receiving nil moni"" pnid on nceount llf purchase price or of nccepling Ihe Propc.ty in ils lhen condillon tllgelher wilh lhe proceed,
of any insuI1Ince recovery obtainable by Seller. Buyer is hereby nutUied that Buyer may insure Rl1ycr~s I.:quitahlc intcrcsl in Ihis Properly us of
the time of execution of this Agreement.
23. WAIVER OF CONTINGENCmS (1-00)
In (he evenllhis Agreemenl is contingent on Bllyer's righl to inspect and/or repair the Propeny, Buyer's fllllure to exercise any of Buyel". options
within the time limits spedfted In the contingency provlslon(s) will constitute a WAIVER nf tbat contingency and Buyer accellts the
Property and agrees to the RELEASE set rortb In parallJ'llph 24 of this Agrument.
2A. RELEASE (1-00) Buyer hereby releases, quit elalnlS and forever dlsebarges SELLER, ALL BROKERS, their LICENSEES, EMPLOY-
EES, and any OFl''ICERor PARTNER or any one nfthem and any other PERSON, FffiM, or CORPORATION wbo may be liable by or
tllroUgb them, f.....n any and all dollllS, losses or denllU"ls, including, but not limited to, personal ioJuries llnd property damage "nd all or
the consequences thereo', wbether now known or not, wbleb may arise from the presence of environmental bazards, any dendencies in the
OD-&'1te water service system, or any defeets or conditions on !he Property. TIlls release will survive settlement
25. REPRESENTATIONS (1-00)
(A) Buyer unde"'lnnds .hatany representations. claims, advertising, promolionalactivities. brochure.. or plans of any kind made by Seller, Brokers,
their licensees, employees. officers, or partnen are nol a pstt of this Agreemenl, unless expressly incorporated or stated in this Agreement
(8) It Is understood tllat Buyer bas IlIlIpccted !he Property before oignlng this Agreement (Including nxtures and any I>crsonal propcrty
specifically scheduled herein), or b... waived the riabt to do so, and Iws aareed to purchase it In 11.8 present condition unless otherwise
staled In this Agreement. Bllyer acknowled&es that Brokers, their licensees, employees, omeees, or partners bave not made an
Independent examination or detennlnallon or the strueturallOUndnellS of the Property, tile age or condition of the components, envi-
ronmental conditions, the pennIUed uses, or of c:oudltlons exlstlnaln the locale where tlte Property is sltuatedj nor bave they made a
mecbanlcallnspectlon of au)' of the systems contained therein.
(C) II is further underslood thatlhis Agreement contains the whole agreemenl between Seller and Buyer and tbe... are no other terms, obligations.
covenants. representations. SUllemenlS or conditions, oral or otherwise of any kind whallloever concerning this sale. Furthermore, .his Agree-
ment will not he all"red, amended. changed, or modified except in writing execllted by the panies.
(D) The l1ending.~s, and line numbers in this Agreemenl are meant only to make it easier to find the pllrtlgraphs.
Buyer Initials: rL.J-.L~ AJS.VL Paae 5 or 6 Seller Initials:
Ji3
364
365
366
367
366
369
370
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ails
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4M
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357
358
30B
3.0
361
362
363
364
arlfl
,66
367
31i6
36B
370
311
372
373
374
375
376
3n
,76
3/9
389
3111
382
3U3
384
3R~
386
3R7
:i8R
389
3911
391
392
383
39.1
395
396
397
:\98
399
4Da
491
402
4113
404
405
4116
4117
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409
410
411
<12
413
414
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416
411
4lR
419
429
421
422
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424
42!,
426
427
418
429
.311
.\31
4:\2
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43.1
~35
43r.
4~17
4311
439
4,Ul
441
442
443
444
446
446
447
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449
.150
461
452
463
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456
"
/62
463
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467
468
469
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411
472
473
4'/4
475
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48B
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64 545
55 546
56 541
!i118
67 549
58 550
59 551
!is?.
DEFAULT (7-01)
Should Buyer:
(A) Fail to make any additional payments as specified in paragraph 3; OR . .
(B) Furnish false or incomplete infonnation to Seller. Broker(s), or the lender, if any. concerning Buyer's legal or financial status, or fail to coop-
erate in the processing of the fmancing application, which acts would result in the failure to obtain the approval of a financing commitment;
OR
(C) Violate or fail to fulfill and perfonn any other termS or conditions of this Agreement;
then in such case, Seller has the option of retaining all sums paid by Buyer, including the deposit monies, I) on account of purchase price,
or 2) as monies to he applied to Seller's damages, or 3) a.~ liquidated damages for such breach, as Seller may elect, ullless checked helow.
D Seller is Iimiled to reIlIining sums paid by Buyer, including deposit monies, as liquidated damages.
If Seller elects to retain all sums paid by Buyer, including deposit monies, as liquidated damages, Buyer and Seller will he released from
further liability or obligation and this Agreement will he VOID.
27. MEDIATION (7-96)
D NOT AVAILABLE
o WAIVED. Buyer and Seller understand that dley may choose to mediate at a later date, should a dispute arise, but that there will be no ob-
ligation on the part of any party to do so.
D ELECTED
(A) Buyer and Seller will try to resolve any dispute or claim that may arise from this Agreement through mediation, in accordance wiU, the
Rules aod Procedllres of the Home SellersIHorne Buyers Dispute Resolution Syslem. Any agreement reached Onough a mediation conference
and signed by the parties will be binding. .
(6) Buyer and Seller acknowledge that they have received, read, and understand the Rules snd Procedllres of the Home Sellers/Homc Buyers
Dispute Resolution System. (See Mediation Notice.)
(C) This agreement to mediate disputes arising from this Agreement will survive seUlement.
Buyer and Seller admowledge that they Ilave read and understand the notices and explanatory Infonoallon set forth In this Agreement.
Buyer acknowledges receiving a copy of this Agreement at the time 0' a\;lnIng.
DATE /-'Z-7-03
Home Phone
E-Ma~ U
WITNF$S ~ ~~
Buyer Name (print)
Mailing Address
Wade Phone
PAX #
~J1f~
SS#
/-97-03
DATE
BUYER
Work Pbone
FAX #
Home PIlone
E-Mail
DATE
BUYER
SS#
WITNESS
Buyer Name (print)
Mlliling Address
PAX II
nnme Ph()ne
E-Mail
Work Phone
Seller hereby approves the above contract this (date)
And in consideration of the services rendered in procuring the Buyer, Seller agrees to pay the named Broker for Seller a fee of
of/from the herein specified sale price. In the event Buyer deraulls hereunder, any monies paid on account will he divided ~
Seller, ' Broker for Seller, bllt in no event will the sum paid to dlC Broker for Seller he in excess of the above specified Broker's fee.
WlTNESS SELLER "
Seller Name (print) SS#
Mailing Address
Home Phone Work Phone PAX II
E-Mail
WITNESS SELLER
Seller Name (print) SS#
Mailing Address
Home Phone Work Phone. PAX #
E-Mail
WITNESS SELl.ER
Seller Name (print) SS#
Mamng Address
Home Phone Work Phone FAX #
E-Mail
DATE
DATE
DATE
The undersigned D Broker for Seller 0 Broker for Buyer agree to submit to mediation in accordance with paragraph 27 of this Agreement.
UROKER FOR SEU.ER (Company Name)
ACCEPTED BY
DATE
BROKER FOR BUYER (Company Name)
ACCEPTED BY
DATE
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ADDENDUM TO AGREEMENT OF SALE
This is an addendum to the agreement of sale dated January 27, 2003 for
the purchase of vacant land known as Phase II and Phase III of a
development in North Newton Township, Cumberland County, Newville PA
17241, known as -North Newton Hills" by and between William C. Kollas,
James C. Costopoulos & William C. Costopoulos known as the Sellers and
George J. and Tessie Mallios known as the Buyers. Seller and Buyers hereby
agree to the following:
[J Included in the sale are the following: All existing plans for final sub-
division that are now available.
[J Buyers are responsible for all costs for the sub-division including the
Sewer reservations by Newville Borough. The cost for the sewer
reservation is $28,732.00. Seller will purchase the sewer reservation
prior to settlement within the allotted time provided by the sewer
authority. Seller will transfer the sewer reservation to the Buyers at
time of settlement. Buyers will reimburse the Sellers for the cost of
t~e seweljreservation, $28,732.00, at time of settlement. 15 Y1u ~ ~
~~ ~s JU.~ ~~7~"'2-.Ct) ~ IS ~
Wu.
Dated, January 27, 2003
.1L.c-
Witness
~ PLAINTIFF'S
1*
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SEWER AGREEMENT
NEWVILLE BOROUGH WATER AND
SEWER AUTHORITY
PROJECT: NORTH NEWTON HILLS, SUBDIVISION PHASES II AND
III.
This Agreement is entered into this day of , 2002, by and
between the Newville Borough Water and Sewer Authority ('Authority'), a body existing by
virtue of the laws of the Commonwealth of Pennsylvania, with its principal office at 4 West
Street, Newville, Cumberland County, Pennsylvania, and George Mallios, 312 West Meadow
Drive, Mechanicsburg, Pennsylvania 17055 and Dean Bear 1133 A Harrisburg Pike ,Carlisle,
Pennsylvania 17013 (hereinafter jointly referred to as 'Applicant').
WHEREAS,
1. Authority owns and operates sewage collection and treatment facilities in the
Borough of Newville and West Pennsboro and North Newton Townships, Cumberland County,
Pennsylvania.
2. Applicant will develop a housing development known as North Newton Hills
Subdivision Phases II and ITI ('Project') to be located in North Newton Township. The lands for
the development are presently owned by William C. Kollas, William C. Costopoulus and James
Costopoulos.
3. Under an Intergovernmental Cooperation Agreement, dated May 3, 1993
between North Newton Township, the Authority and the Borough of Newville, the Authority is
to provide sewage collection and treatment services for the lands owned by William Kollas,
William Costopoulos and James Costopoulos and to be developed and subdivided as the land
development known as North Newton Hills.
4. For Phase IT, eighteen (18) homes will be built by the Applicant and for Phase
III, twenty-six (26) homes will be built by the Applicant. For the purposes of this Agreement,
one home will be assumed to equate to one EDD ('equivalent dwelling unit').
5. As part of the Project, Applicant will construct, at their own cost and expense
and by their own contractor, a sewer main to be an extension to the existing sewage system,
owned and operated by the Authority, to serve the homes to be built by Applicant in Phases II
and III. Upon completion of the sewer system extension, Applicant will offer for dedication the
extension to the Authority. The Authority's acceptance of the dedication is contingent upon the
extension being constructed in conformance with the Project Documents.
~
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If
!
I
PLAINTIFF'S
EXHIBIT
C
I
-..... ............ --...... -................<C-~I.I .-.
6 Sewage generated by the homes to be built in Phases II and III will be
transported in the Authority's sewage collection system and be treated at the Authority's
wastewater treatment plant.
7. Applicant desires to reserve sanitary sewer system capacity in the Authority's
sewage collection and treatment system and to pay reservation charges beginning from the date
of purchase of such capacity until the capacity is used.
8. By resolution adopted September 22, 1999, the Authority under its authority
under the Municipality Authorities Act imposed a charge for sewage service capacity of$503 per
EDU for tapping fees and a $150 connection fee for inspection and administrative costs for each
connection.
9. Such sewage capacity reserved for Applicant shall remain unavailable to
others who may have immediate need of the same.
10. For the above stated reasons, the Authority has deemed it in the best interest
of the public, existing users of the sanitary sewage system, and potential users without reserved
capacity, that Applicant, desiring to reserve sewage capacity, pay a charge designed and
calculated to amortize the cost of that portion of the system allocated to and reserved by it.
11. The parties hereto are desirous of specifically delineating their respective
rights and obligations for reserving capacity at the Authority's wastewater treatment plant and in
the collection system in accordance with applicable provisions of the Municipalities Planning
Code, the Municipality Authorities Act and the Authority's Rules and Regulations and any other
applicable laws and/or regulations.
NOW THEREFORE, in consideration of the above recitals and of the mutual covenants,
obligations, undertakings and agreements contained herein, subject to the conditions contained
herein and intending to be legally bound hereby, the parties do mutually agree as follows:
PART A - DEFINITIONS. Unless the context specifically indicates otherwise, the
following terms and phrases, as used in this Agreement, shall have the meanings hereinafter
designated:
a) DEP shall mean the Pennsylvania Department of Environmental Protection or
its successors in authority.
b) EDU (equivalent dwelling unit) shall mean the unit of service by which a
charge or charges shall be imposed, as determined by this Agreement and any resolutions of the
Authority, which shall be deemed to constitute the equivalent amount of sanitary sewage
discharged by an average single family dwelling unit, as determined by the Authority's engineer.
The number of EDD's required for Applicant's Project will be determined by the Authority,
based on estimated wastewater to be generated.
2
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c) ENGINEER shall mean the person or organization duly employed by the
Authority as consultant and authorized to review, inspect, and comment on the information,
documentation and work associated with a request for approval of reservation of sewer capacity
by Applicant or its agents.
d) LAND DEVELOPMENT shall mean the improvement of lands for the
purpose of constructing buildings and any other associated support structures to include streets,
water and sewer mains.
e) PROmCT DOCUMENfS shall mean all detailed plans showing the sewer
collection facilities, specifications and permit applications for the proposed extension to the
sewage collection system of the Authority.
f) PERSON shall mean any individual, partnership, company, association,
society, trust, cOIporation or other group or entity, public or private.
g) PROJECT shall mean a subdivision, land development or any other manner
of improvement to real ~state being made or caused to be made by Applicant for the use or uses
designated herein.
h) PROPERTY OWNER shall mean the owner of any improved or unimproved
lot or tract of land within the area to be served by the Authority which is not immediately
connected to the sewer system, but which could be connected to such system.
i) RECORD DRA WINGS shall mean drawings prepared in conformance with
the specifications showing the sewage extension facilities as constructed.
j) RESERVED CAPACITY shall mean the volume of sewage capacity allocated
to and reserved by Applicant.
k) RESERVATION CHARGE means the initial fee the Authority has agreed to
accept and the Applicant, has agreed to pay in order to reserve the sewage capacity in favor of
the Applicant as more fully set forth herein.
I) RESERVATION RENTAL CHARGE means the quarterly fee the Authority
has agreed to accept and the Applicant has agreed to pay in order to reserve the sewage capacity
as more fully set forth herein_
m) SEWER EXTENSION shall mean a sanitary sewer main to be constructed by
Applicant at its own cost and expense and by its own contractors for connection into the existing
sewage collection system as per the terms of this Agreement.
n) SEWAGE SYSTEM or SEWER SYSTEM shall mean all sewers, all pumping
stations, all force mains, all sewage treatment works, and all other sewage facilities owned by,
leased to, and/or operated by the Authority for the collection, transportation and treatment of
sanitary sewage and industrial waste, together with their appurtenances, and any additions,
3
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extensions or improvements thereto. Said terms shall also include sewers within the Authority's
service area which serve one or more properties discharging into the sewer system even though
such sewers may not have been constructed by the Authority and are not owned or maintained by
the Authority. It shall not include storm sewers or culverts which have been constructed for the
sole purpose of carrying stonn and surface runoff. discharge for which is not and does not
become tributary to the sewage treatment facilities.
0) SPECIFICATIONS mean a detailed plan containing sewer system design
specifications and characteristic descriptions of all components and attributes of Applicant's
proposed sewer system extension and its connection to the existing sewer system.
p) TAPPING FEE means that particular fee as set forth in the Municipality
Authorities Act of 2001. Act of June 19, 2001. P.L. 287, as amended. 53 Pa. C.S.A. 95601 et
seq., and as set forth in the Authority's Resolution establishing said tapping fee.
q) USE shall mean the specific purpose for which Applicant's Project IS
designated, arranged, intended or for which it is or may be occupied or maintained.
PART B - RESERVATION OF CAPACITY
I. Applicant desires to reserve and Authority hereby grants to Applicant sanitary sewage
capacity for 44 EDUs to construct the Project. For this reserved capacity, Applicant agrees to
pay a reservation charge of $28,732.00 or $653 per EDU upon execution of this Agreement.
This reservation shall continue until such time the capacity is used or this Agreement is
tenninated as provided herein.
2. Applicant also agrees to pay a reservation rental charge for the 44 EDUs of$I,168.20
per quarter. or $4.672.80 per year. which was calculated based on 50% of the Borough's lowest
quarterly sewer rate of$53.10 as ofthe date of this Agreement.
3. The above fees are based on eighteen (18) residences being constructed in Phase II,
and twenty-six (26) residences being constructed in Phase III.
4. The rate for the reservation rental charge shall be subject to change at the Authority's
sole discretion. In the event of such a reservation rental charge rate change. the Authority shall
notify Applicant in writing of the change on the first quarterly billing following the adoption of
the Authority's resolution implementing such change.
5. This Agreement does not replace or eliminate any other fees that the Authority may
lawfully charge Applicant under the Municipality Authorities Act, as amended (hereinafter the
"Act").
6. (a) Applicant agrees to submit to the Authority for its review and approval by the
Engineer, specifications, plans and drawings for the Project and to pay $5.000.00 associated with
the Authority's review of the Project Documents and inspection of the sewer extension
construction and connections. Such money will be held in escrow and will be used by the
4
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Authority as such fees are incurred by the Authority for its cost of reviewing plans, construction
inspections, administrative, legal and engineering services. Any time the balance in the escrow
account falls below $1,000.00, the Authority will notify Applicant and Applicant shall add to the
escrow monies determined by the Authority to complete the Authority's review of the
specifications and plans, and inspection of the construction. Upon completion of the Project, any
balance remaining shall be refunded in full to Applicant.
(b) Schedule of rates for Authority, its Engineer and its solicitor for review of plans,
inspection of construction, administrative, legal, and engineering services:
1. Authority's inspector - $15.61 per hour
2. Engineer
a. construction inspection - $32 - 35.00 per hour
b. construction coordinator - $51.00 per hour
c. professional engineer - $78.00 per hour
3. Authority's solicitor - $70.00 per hour
7. The Authority reserves the right to inspect the construction and testing of the sewer
extension and connections to the homes and such construction and testing shall be to the
approval of the Engineer. Financial costs associated with the Authority's inspection and testing
shall be borne by the Applicant.
8. Applicant agrees and understands that a penalty of one and one-half percent (1.5%)
per month shall be added thirty (30) days after the date upon which a payment is due and remains
unpaid. Applicant further understands that the Authority shall not issue a sewer connection
permit where a payment is due and has remained unpaid for thirty (30) days.
9. Applicant understands and agrees that should any payment owed to the Authority be
due and remain unpaid for a period of over ninety (90) days, the Authority may enter a lien
pursuant to law against the real estate of Applicant for which such charges were unpaid. Further,
Applicant agrees and understands that the Authority, may cancel at its discretion, all or any
portion of the remaining reserve capacity of Applicant for which a payment shall be due and
remain unpaid for a period of over ninety (90) days.
10. Applicant may upon written application to the Authority cancel all or any portion of
the reserved capacity allocated to and reserved by it. Such cancellation shall be effective
providing that the application shall have been made at least fifteen (15) days prior thereto. There
will be no refund of previously paid reservation charges on said canceled reserved capacity.
Connection to the sewer system following applicable Authority procedures shall be considered
an automatic cancellation as to that reservation of capacity so connected.
11. If the capacity reserved by Applicant should be determined to be insufficient during
the term of this Agreement, it may request additional reserve capacity. Such request will be
processed as a new application requiring additional reserve capacity.
12. This Agreement is for a term of five (5) years from the date first executed. Ifafter
5
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five (5) years from the date that Applicant's first payment became due, Applicant is still in need
of and has not used all or any portion of the capacity originally reserved under this Agreement, it
shall make application to the Authority for continued reserve capacity, and shall be granted an
additional three-year extension of this Agreement provided it has complied with the terms of all
provisions of this Agreement. Said extension request shall be made in writing six (6) months
prior to the termination of this Agreement. Said extension shall not be unreasonably withheld.
13. Reserved capacity shall not be sold, transferred or assigned to any other person,
without the express written approval of the Authority.
14. Applicant agrees and understands that the reserved capacity hereby allocated to and
reserved by it in the Authority's sewer system is conditioned upon Applicant's use of the lan.d
being that set forth in the Project Documents. Use of the property in any manner other than that
set forth in the Project Documents shall be considered a default under this Agreement. Should
Applicant, its representatives, successors or assigns, wish to alter the use of the property from
that set forth in this Agreement, a written request to do so must be submitted to the Authority,
setting forth the proposed new use and the estimated capacity required for said use. Such
Application may be processed as a new application.
15. This Agreement shall terminate upon the occurrence of any of the following events:
(a) The total reserved capacity has been utilized or consumed by Applicant.
(b) All unused reserved capacity has been canceled by Applicant for whom it was
reserved, or by the Authority as provided in this Agreement.
(c) A period offive (5) years shall have expired from the date of execution of this
Agreement, and Applicant has not received an additional three (3) year
extension.
(d) Applicant defaults as set forth hereunder.
16. Should Applicant default on any of its responsibilities and obligations set forth in any
part of this Agreement, including, but not limited to, timely payment of all fees and costs
required by the Authority in any part of this Agreement, it shall no longer be entitled to the
reserved capacity allocated herein, and said reserved capacity, and any remaining unused portion
thereof, may be canceled at the Authority's discretion. In the event of any such default by
Applicant, the Authority may pursue, at its discretion, any and all remedies set forth in this
Agreement, and all other rights, claims, actions or cause of action available to the Authority
under law or equity.
17(a). If for any reason the Authority is unable to provide all or any portion of the
capacity reserved by Applicant for a period of time, the Authority will so notify Applicant in
writing within sixty (60) days of the Authority becoming aware of such circumstances. If the
Authority cannot provide the capacity reserved by Applicant on a permanent basis or for a period
oftime in excess of six (6) months, the Authority will, upon written demand by Applicant, retum
the reservation charges paid by it for the reserved capacity that the Authority is unable to
provide.
6
-.... .-..... -...... ---.... -"'-1--'111 r. ~~t"
(b). If the Authority is unable to provide the capacity reserved by Applicant for a period
of less than six (6) months, Applicant may choose to continue to hold said reserved capacity until
the Authority is again able to provide the same. The Authority will notify Applicant in writing
when reserved capacity is again available. Should Applicant choose to cancel the capacity
reserved by it, it shall send the Authority written notice of its decision to do so and the applicable
provisions of Paragraph 1 0 shall apply.
(c). Applicant understands and agrees that the above provided refund and suspension of
reserved capacity shall be its only recourse remedy for the Authority's inability to provide the
reserved capacity allocated and reserved by it under this Agreement.
18. In the event the DEP shall cancel, revoke or stay the effectiveness of any permit for
any reason, or should it for any reason impose a ban on connections or extensions to the sanitary
sewer system, the Authority shall not as a result thereof incur any liability of any nature to
Applicant who has been allocated reserve capacity unless said actions by the DEP were solely
due to the Authority's willful, wanton, and malicious conduct.
PART C - CONSTRUCTION AND DEDICATION OF SANITARY SEWER
SYSTEM EXTENSION
1. Applicant, at its own cost and expense will cause to be prepared by qualified
professional engineering personnel, specifications and drawings for the proposed extension to the
sewage collection system of the Authority. The Project Documents consisting of specifications
and drawings shall be reviewed. by the Authority's Engineer. If required to secure approval of
the Authority, the Applicant will revise or amend the specifications and drawings. Upon receipt
by Applicant of all required approvals of such regulatory agencies as are required by law and
upon compliance by the Applicant with all applicable local ordinances and regulations, the
Applicant will notify the Authority. Applicant may not start work on the construction of the
extension until it is notified to do so by the Authority.
2. The Applicant shall hire, employ and pay its own contractor, contractors or
subcontractors to construct the extension according to the aforesaid approved specifications and
plans, and the Authority shall have no responsibility or liability for payment of any part of the
costs or expenses arising out of or relating to said construction or the labor, materials, and
equipment used therein or thereon.
3. The Applicant at all times, shall indemnify and save harmless the Authority and
Engineer and all their officers, agents and employees, from all claims, liabilities, suits,
judgments, verdicts, actions or proceedings at law or equity of any kind whatsoever arising out
of, connected with or caused. by any operation or matter in, of, or related to the sewer extension
which is the subject of this Agreement, including among other things, injury to property, and
injury to and sickness and death of each and every person or persons whatsoever, including
without limitation, members of the public and officers, agents and employees of the Applicant,
the Applicant's contractors, or sub-contractors. The Applicant shall, if required by the Authority
or Engineer, produce evidence of settlement of any such claims, suits, liabilities, judgments,
7
--. --............... .............. .....-......... ..
verdicts, suits, actions or proceedings, groundless or not, which may be commenced against the
Authority or Engineer or their officers, agents and employees, and the Applicant shall payor
cause to be paid any and all judgments which may be secured in any such actions, claims,
liabilities, judgments, verdicts, proceedings or suits, and the Applicant shall defray or cause to be
defrayed any and all expenses, including costs and attorney's fees, which may be incurred in or
by reason of such actions, claims, liabilities, judgments, verdicts, proceedings or suits. Such
defense and indemnification shall be provided by including the Authority and Engineer and all
of their officers, agents and employees as additional insureds under the policies of the Applicant,
its contractors and subcontractors which pertain to this Project. The Applicant and its contactor
shall be solely responsible for construction site safety, practices, supervision, direction of
personnel, use of equipment and the means, methods and manner of construction employed by
the contractor.
The Applicant shall be required to include this Paragraph In all agreements or
contracts with its contractor, contractors, or sub-contractors.
4. During the course of construction, all materials, workmanship, compliance with the
approved plans shall be subject to the inspection of the Authority's Engineer or an authorized
agent of the Authority. The Authority and Engineer will not perform or be responsible for any
hiring, firing, supervision, superintendence, direction of personnel, use of equipment,
construction site safety, safety programs or the direction ofthe manner or method of construction
employed by the contractors, their sub-contractors, agents, servants or employees; nor will the
Authority or Engineer be liable for any matters or claims arising therefrom. The Authority and
Engineer shall be under no obligation or liability arising from the work of or injuries to the
contractors, their subcontractors, agents, servants or employees on said Project.
In the event the materials and/or workmanship are found by the Engineer or the
Authority to be in noncompliance with the previously described specifications and drawings, the
Authority will revoke its approval to proceed with construction. The Applicant hereby agrees to
immediately cease construction operations and replace and/or correct the noncompliant materials
and/or workmanship. The approval to proceed with construction will be reissued only upon
receipt of written procedures from the Applicant to prevent future noncompliant occurrences.
The Applicant shall also be responsible for compliance with inspection requirements of
applicable governmental agencies, utility companies and property owners in connection with the
construction. Upon completion of the construction of the extension and prior to individual
connections thereto, the Engineer for the Authority will certify the satisfactory completion
thereof to the Authority.
5. Upon completion of the extension, the Applicant shall notify the Authority in writing
that the extension has been completed and is ready for final inspection.
6. Upon completion of the extension, but not longer than sixty (60) days after
completion, the Applicant shall:
(a) Cause to be prepared and furnished to the Authority, at the expense of the
Applicant, record drawings of the completed extension project as detailed in the
8
--"_-,."--,---~,~""..,
ilU....'L...LrIJtJO lJtJ;:::JIi'll::..lLJ-l111 r-. \C.ICCl~
specifications and drawings. Record drawings shall be the same scale and plan size as
standard to the Authority.
(b) Cause to be prepared, executed, acknowledged and delivered to the Authority
ready for recording, at the sole expense of the Applicant, a deed of conveyance for the
said entire extension project, its pipes, manholes, and all of its appurtenances, as well as
all rights, liberties, and privileges appurtenant thereto including rights-of-way over the
streets and other thoroughfares and private lands necessary for the existence and future
maintenance thereof
7. The Applicant shall and does hereby for a period of one year or longer if required by
a permitting agency following the delivery of said deed of conveyance and acceptance by the
Authority, guarantee the said sewer system as to workmanship and materials, and shall furnish to
the Authority a maintenance security as described in Paragraph 9. Upon receipt and recording of
said deed of conveyance, the extension project and all parts and appurtenances thereof as above
described shall be, become, and remain the sole, absolute, permanent property of the Authority
or its assigns free and clear of any lien, obligation, other liability in favor of the Applicant, its
successors or assigns, its contractor or contractors, its and their laborers and materialmen and any
of their creditors, or in favor of any other person or corporation, to the same end and effect as if
the Authority had constructed the extension project with its own labor and at its own expense.
Thereafter, the Authority shall maintain, repair, rebuild and otherwise act toward said extension
as its own property and its own cost and expense. Nothing herein shall be construed to discharge
or dilute the contractual obligations of the contractor, contractors, or sub-contractors of the
Applicant to guarantee their workmanship.
8. Prior to the Authority notifying the Applicant that work can begin on the project
hereof, the Applicant shall deliver to the Authority either:
(a) "Performance Bond" covering faithful and satisfactory performance ofthe\
work herein described in an amount not less than one hundred ten (110) percent of the
construction costs; and a "Payment Bond" in an amount not less than one hundred ten
(110) percent of the construction costs covering payment in full for all services (including
reasonable rentals of equipment for certain periods) rendered, materials furnished, and
labor supplied or performed. The above noted construction costs shall be based upon the
bona fide bids made on the project or an estimate prepared by the Authority's Engineer.
The same Surety must execute both Bonds. The Bonds shall be issued by a Surety
Company, authorized to transact business in the Commonwealth of Pennsylvania.
(b) Financial security to be in the fonn of cash, certified check, or irrecovable letter
of credit or restrictive or escrow account in a Federal or commonwealth chartered lending
institution authorized to conduct such business within the Commonwealth of
Pennsylvania. Such financial security for this project shall be in an amount of one
hundred ten (110) percent of the construction costs as determined by the method specified
in (a) above.
9
~----,~.._~,,+,..._.., ,.,"
The above funds shall be used to reimburse the Authority for all costs and expenses
incurred by it (as evidenced by itemized bills thereof), in completion of the extension to the
Authority's sewage system in the event that:
(a) Applicant becomes insolvent before completing the extension; or
(b) Apphcant does not complete the extension within twelve (12) months after the
Authority notifies the Applicant that work can begin; or
(c) Applicant fails to pay any deficiency or projected deficiency occurring in the
escrow account within 30 days of said request of payment by the Authority.
As construction of the extension proceeds, the Applicant may request the Authority to
release, from time to time, such portions of the financial security necessary for payment
to the contractor, contractors, or sub-contractors performing the work. Any such request
shall be in writing addressed to the Authority, and the Authority shall have forty-five
days, from receipt of such request, within which to allow the Authority's Engineer to
certify, in writing, to the Authority that such portion of the work upon the project has
been completed in accordance with this Agreement. Upon such certification, the
Authority shall release or authorize release by the lending institution of an amount as
estimated by the Authority's Engineer which fairly represents the value of the project
completed. The Authority may, prior to final release at the time of completion and
certification by its Engineer, require retention of ten per centum of the estimated cost of
the aforesaid extension.
9. With the deed of conveyance Applicant shall deliver to the Authority additional
financial security to secure structural integrity of the project, as well as the functioning of the
project in accordance with this Agreement for a period of one (1) year or longer if required by a
pennitting agency from the date of receipt of the deed of conveyance. Such financial security
shall be of the same type as set forth for the Payment Bond and Performance Bond. This
financial security shall be in the amount of fifteen per centum of the construction costs.
PART D - MISCELLANEOUS
1. Nothing contained herein will relieve Applicant from complying with any applicable
requirements of any federal or state statue or regulation or ordinances of the Newville Borough
Water and Sewer Authority, or of the Rules and Regulations of the Authority or the rate
schedules of the Authority as amended from time to time. Applicant specifically agrees to
comply with all Authority rules, regulations, specifications, and rates presently in effect and as
amended or supplemented from time to time without notice to Applicant.
2. This Agreement may not be assigned by either party without the prior written consent
of the other, except that the Authority without the consent of Applicant, may assign its rights, but
not its obligations, under this Agreement, to the trustee under any indenture and supplements
thereto securing such Authority bonds as may be outstanding from time to time.
10
3. All notices required under this Agreement shall be sent to an address provided to the
Authority by Applicant, and shall be deemed to have been given when mailed by certified mail
or delivered by hand.
4. The construction of this Agreement and the fights and remedies of the parties hereto,
shall be governed by the laws of the Commonwealth of Pennsylvania.
5. The Authority shall not issue a sewer connection permit to or for the use of Applicant
until such time as all fees required under this Agreement and the Authority's Rules and
Regulations have been paid in full.
6. Unless otherWise provided herein, no recourse on any obligation, covenant, or
agreement contained herein shall be had against any past, present, or future member, officer,
employee, engineer or counsel of the Authority. It is expressly agreed and understood that this
Agreement and the obligations hereunder are solely corporate obligations, and that no personal
liability whatsoever shall attach to or shall be incurred by any such members, officers, or
employees of the Authority by reason of any of the obligations, covenants, or agreements
contained in this Agreement.
7. No modification, anaendment, change or addition to this Agreement shall be binding
on the parties unless reduced in writing and signed by their authorized representatives.
8. This Agreement contains the entire understanding between the parties and supersedes
any prior written or oral agreements between the parties respecting the within subject matter.
There are no representations, agreements, arrangements or understandings between the parties
hereto relating to the subject of this Agreement which are not fully expressed herein.
9. If any terms or provisions or portions thereof of this Agreement or application thereof
become invalid, the remainder of said term or provision and/or portion thereof of this Agreement
shall not be affected thereby; and, to this end, the parties hereto agree that the terms and
provisions of this Agreement are severable.
10. This Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute but one and the same
instrument.
11
BOROUGH OF NEWVILLE
CUMBERLAND COUNTY
BOROUGH OFFICE: 4 WEST STREET, NEWVILLE, PENNSYLVANIA 17241
TELEPHONE (717) 776-7633 FAX (717) 776-9317
November 22, 2002
Mr. Norman J. Dellinger
Central State Realty
15 State Avenue, Suite 103
Carlisle, PA 17013
Dear Mr. Dellinger:
This letter is to confnun that the Newville Water and Sewer Authority at
their regular monthly meeting held on November 20, 2002, agreed to provide
reserve capacity to George Mallios and Dean Bear for the development of 44
new homes in the North Newton Hills Subdivision, Phases II and III.
The Assistant Authority Solicitor Mr. Thompson, is presently in the
process of revising the necessary agreement and he will be forwarding the
agreement to you for your review and signing by the appropriate parties.
A copy of this correspondence will be forwarded to the North Newton
Township Board of Supervisors to confmn that you have reached agreement
with the Newville Water and Sewer Authority to provide water and sewer
services to the proposed development.
Please contact me at 776-7633 should you have any further questions.
FOR THE NEWVILLE WATER AND
SEWER AUTHORITY
Sincerely yours,
Cc: William Thompson, Esquire
Asst Authority Solicitor
BOROUGH COUNCIL
MAINTENANCE BUILDING
(717) 776-6601
Fred A. Potzer
Borough Manager
NEWVILLE WATER AND SEWER
ZONING HEARINGBOARD
PLANNING COMMISSION
WASTEWATER TREATMENT PLANT
(717) 776-5633
WATER PLANT
(717) 776-6305
SALZMANN,
G. BRYAN SALZMANN, ESQ.
STEVEN J. FISHMAN, ESQ.
ANN F. DEP^ULI$, ESQ.
NORMA J. BAR'I'KO, ESQ.'
WILLIAM W. THOMPgON, ESQ.'
MELISSA K. D~VELY, ESQ.
*AL~ AdmiRed to Maryland Bar
DEPAULIS & FISHMAN, P.C.
Paralegak
PAMEI.~ R. KOHLER
BARBARA J. MO$1OR
LAURIE J. PORTER
TRICIA L. BAILEY
REPLY TO,
,~55 PHOENIX DRIV£ oSuFI-EAo CHAMBERSBi ~RG, PA 17201
OI7) 2.63-212! FAX (7 I'/) 263.066'~
(7 i 7) Z4~6.}3 ] FAX (717) Z,~9-7334
105 NORTH FRONT STREffF~'SUITE 401 · HARRISBURG, PA 17101
(717) Z37,-9420 FAX (717) 232,-1970
December 19, 2002
VIA FACSIMILE (717) 243-1330 and REGUL~ MAIL
Norman Dellinger
Central State Realty
15 State Avenue
Carlisle, PA 17013
RE: North Newton Hills Subdivision Phases II and HI
Dear Mr. Dellinger:
Please be advised that the Board for the Newville Water and Sewer Authority at its December 18. 2002
meeting by resolution adopted a Capital Charges Study for the Sewer System that updates the fees for
connecting to the Authority's sewer system. For one EDU (equivalent dwelling unit), the fees increased fi'om
$653.00 to $1,041.00.
If the Sewer Agreement is not executed and the reservation charge of $28,732.00 is not received by the
Authority by its next meeting on January 22, 2003, the Sewer Agreement that was provided to you on
November 25 is void and Phases II and III will be subject to the fees adopted December 18, 2002.
Should you have emy questions concerning this matter, please contact the Borough Manager, Mr. Fred
Potzer, at (71.7) 776-7633.
WWT/lam
CC:
By:
Very truly yours,
William W. Thompson, Esquire
vt.
Fred Potzer, Newville Water and Sewer Authority
CONCENTRATING IN ENVIRONMENTAL. LAND USE, BUSINESS, REAL ESTATE, AND MUNICIPAL LAW
WILLIAM C. KOLLAS
JAMES W. KOLLAS
LAW OFFICES OF
KOLLAS AND KENNEDY
1104 FERNWOOD AVENUE
CAMP HILL, PENNSYLVANIA 17011
January 21, 2003
OF COUNSEL
MARY KOLLAS KENNEDY
TELEPHONE NO. (717) 731-1600
FAX NO. (717) 731-1460
Fred Potzer
Newville Water and Sewer Authority
Newville, PA
RE: North Newton Subdivision - Phases II and III
Dear Mr. Potzer:
VIA FACSIMILE ONLY
Please be advised that William C. Kollas, William C. Costopoulos and James C.
Costopoulos, owners of the remaining ground in North Newton Hills Subdivision Phases II and
III will exercise the reser,'ation of the sewer capacity for North Newton Hills and will remit to
you the sum of $28,732.00 on or before January 28, 2003. In the interim, we will have a sewer
agreement executed by these gentlemen or their assigns and sent to you as well.
Very truly yours,
KOLLAS AND KENNEDY
William C. Kollas
WCK/deb
SALZMANN,
O. BRYAN SALT. MANN, ESQ.
STEVEN J. FISHMAN, ESQ.
ANN F. DEPAULIS, ESQ.
NORMA J. BART'KO, ESQ.-
WILL/AM W. THOMPSON, ESQ.*
MELISSA K. DIVELY, ESQ.
'Also Admitted to Maryland Bar
DEPAULIS & I'SHMAN, P.C. '
Paralegals REPLY TO,
PAMELA R. KOHLER
BARBARA J. MC~IOR 455 PHOENLX DRIVE. SUITE A. CHAMBERSBURG, PA ! 7201
LAURIE J. PORTER (717) 263-212.1 FAX (717) 263.0663
TRIGIA L. BAILEY 95 ALEXANDER SPRING ROAD- SUITE 3 · CARLISLE, PA 17013
' (717) 249-6333 FAX (717) 249-7334
105 NORTH FRONT STREET. SUITE 4OI ,, HARRISBURG, PA 17 I01
(717) 232-9420 FAX(717) 232-1970
January 23, 2003
William C. Kollas, Esquire
Kollas and Kennedy
1104 Femwood Avenue
Camp Hill, PA 17011
RE: North Newton Subdivision - Phases II and III
Dear Mr. Kollas:
At last night's meeting of the Newville Water and Sewer Authority, the Board denied your request for
reservation of sewer capacity. Since the Sewer Agreement and reservation charge was not received by the
Authority by last night's meeting, the Sewer Agreement provided to you previously is void.
If you would like to enter into negotiations for a new agreement, please do not hesitate to contact me.
However, any agreement would be subject to the new rate of $3,166.00 per EDU.
Thank you for your interest.
GBS/lam
cc: Norman Dellinge/
Fred Potzer
NWSA Board
By:
Very truly yours,
G. Bryan Salzmann, Esquire
Solicitor for Newville Water and Sewer Authority
CONCENTRATING IN ENVIRONMENTAL, LAND USE, BUSINESS, REAL ESTATE, AND MUNICIPAL LAW
WILLIAM C. KOLLAS
JAMES W. KOLLAS
'.AW c3 ¢Es'oF
KOLLAS AND KENNEDY
1104 FERNWOOD AVENUE
CAMP HILL, PENNSYLVANIA 17011
OF COUNSEL
MARY KOLLAS KENNEDY
TELEPHONE NO. (717) 731-1600
FAX NO. (717) 731-1460
January28,2003
G. Bryan Salzmann, Esquire
Salzmann, DePaulis & Fishman, P.C.
455 Phoenix Drive, Suite A
Chambersburg, PA 17201
RE: North Newton Subdivision - Phase H and lII
Dear Mr. Salzmann:
I received your letter dated January 23, 2003, and discussed the same with my two joint
venturers in this project, William C. Costopoulos and James C. Costopoulos at a meeting we held
on January 28, 2003. We reviewed the contract for reservation of the sewer capacity prepared by
your office. We further reviewed your correspondence to Norm Dellinger dated December 19,
2002, and Fred Potzer's correspondence to Mr. Dellinger dated November 22, 2002, copies of
which are enclosed. We also discussed my correspondence to Fred Potzer dated January 21,
2003. Mr. Potzer advised both George Mallios and me that so long as we exercised our option to
reserve the sewer capacity and paid the sum of money within seven (7) days or on or before
January 28, 2003, we would have complied with the Sewer Agreement which had been given to
Mr. Mallios. There were some errors in the Sewer Agreement that had to be corrected and the
Sewer Agreement was not executed.
However, we feel that based on the representations made to us and our exercise of the
reservation of the sewer capacity by facsimile dated January 21, that you are bound to honor your
commitment as set forth in your letter, to Norm Dellinger on December 19, 2002. You will note
in your letter of December 19, you told Mr. Dellinger that if there were any questions, Mr. Fred
Potzer should be contacted. That is exactly what we did, and we followed his instructions
thereafter. Hence, we are requesting that you honor your commitment as set forth in the Sewer
Agreement which your solicitor drafted, namely, a deposit in the amount of $28,732.00 for the
reservation of 44 EDUs and the quarterly payment orS1,168.20 thereafter until such time as other
users relieve us of this liability. As the users tap on, we will be relieved of the quarterly charge at
the rate of $53.10 per tap-on per quarter. The Agreement is in error in saying that there are 26
residences in Phase III and 18 residences in Phase II. As a matter of fact, it is the reverse of that.
Phase II has 26 residences and Phase III has 18. It is our sincere hope that further action be not
necessary. However, be advised that we are prepared to pursue this matter legally if need be.
G. Bryan Salzmarm, Esquire
January 28, 2003
Page Two
In the past, we have always cooperated with the Authority. We have struggled to make
this project work. We have represented to the Cumberland County Housing Authority that we
will have lots available for them in the furore, and we anticipate fulfilling this representation. We
are asking you to reconsider your position so that no further action will be necessary. If you
would be so kind to give us the courtesy of your action in this matter, we will then be able to
determine our course of action.
WCK/WCC/deb
Enclosures
Very truly yours,
William C. Kollas
William C. Costopoulos
BOROUGH OF NEWVILLE
CUMBERLAND COUNTY
BOROUGH OFFICE: 4 WEST STREET, NEWVILLE, PENNSYLVANIA
TELEPHONE (717) 776-7633 FAX (717) 776-9317
17241
February 21, 2003
William C. Kollas, Esquire
Kollas & Kennedy
1104 Fernwood Avenue
Camp Hill, PA 1701 I
RE: North Newton Hills Subclivksion - Pha~e ri and 1TI
Dear Mr. Kollas:
This correspondence is in response to your letters addressed to the Authority Solicitor, G.
Bryan Salzmann, Esquire dated January 28, 2003 and February I0, 2003. The Authority
perceived your letter dated January 28, 2003 as a potential threat of litigation concerning the
reservation of sewer capacity for the North Newton Hills Subdivision. The Authority took action
to stand on its previous decision concerning reserve sewer capacity for North Newton Hills for
numerous reasons, including the following:
1. The request for sewer capacity was presented by Mr. Norm Dellinger and the
proposed draft Sewer Agreement was drafted between the Authority and Mr. George Mallios and
Mr. Dean Bear. Therefore, William C. Costopolous, James C. Costopolous and yourself are
simply not parties to the agreement, nor did you or your "joint venturers" ever make the request
to reserve sewer capacity for North Newton Hills. Please note that the correspondence to you
from our Solicitor, dated January 23, 2003 was incorrect in that the correspondence should not
have been forwarded to you, but should have been forwarded to the persons who made the
request which were Mr. George Mallios and Mr. Dean Bear.
2. The Authority stands by its decision to charge the tapping fee adopted by resolution in
January 2003 to apply to all persons making a request for reserve sewer capacity. The Authority
believes that every applicant should be treated equally.
3. Mr. George Mallios and Mr. Dean Bear were clearly informed that the only method to
reserve sewer capacity was to provide an executed agreement and full payment of the applicable
tapping fees, neither of which have ever been provided to the Authority. Thus, there is no
executed agreement between the Authority and Mr. Mallios and Mr. Bear and no consideration
has ever been paid by Mr. Mallios and Mr. Bear.
BOROUGH COUNCIL
MAINTENANCE BUILDING
(717) 776-6601
IiPLAINTIFF'S ·
EXH rr I
NEWVILLE WATER. AND SEWER~i -- ,~ INING
PLANNING COMMISSI
HEARING BOARD
WATER PLANT
(717) 776-6305
4. Between the December and January meetings of the Authority, you contacted the
Authority Manager Mr. Fred Potzer and notified Mr. Potzer that you had several changes that
would be required to the draft Sewer Agreement, Therefore, it is clear that the Agreement was
not acceptable in its form and thus, no contract has been or was entered into between the
Authority and Mr. Bear and Mr. Mallios. Furthermore, the time frame has simply passed
concerning the draft agreement.
5. It is the Authority's understanding that the Authority Manager Mr. Fred Potzer
discussed with you the potential for an extension of time between the Authority's December
meeting and January meeting. Mr. Potzer was not authorized by the Authority to grant any
extension of time as the Authority was quite clear in its motion concerning Mr. Bear and Mr.
Mallios' request for reserve capacity mandating that the Agreement be executed in its existing
form and consideration paid on or before the Authority's meeting in January.
6. The Authority believes it would be unfair and unjust to all other users on the system to
not apply the tapping fees adopted by the Authority at its meeting in January 2003. The
Authority has treated your threat of potential litigation as misplaced and seeking to be treated
differently from all other ratepayers which is not in the best interest of the Authority nor is in the
best interest of all other users or potential users of the Authority's system.
Thank you for your kind attention to this matter. Any and all communications
concerning this matter should be forwarded directly to the Authority's Solicitor, G. Bryan
Salzmann, Esquire. With respect to your perceived threat of litigation, I sincerely hope that you
will reconsider your views based upon the above factors, however, if litigation is brought, the
Authority intends to vigorously defend the same.
Very truly yours,
Newville Water & Sewer Authority
CC-'
G. Bryan Salzmann, Esquire
NWSA Board Members
Fred Potzer, Authority Manager
~, ~ ~/) t to-t)~:~ol (717) 776-5633 (717) 776-6305
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-01022 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KOLLAS WILLIAM C ET AL
VS
NEWVILLE WATER AND SEWER AUTHO
JASON VIORAL , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT '- EQUITY was served upon
NEWVILLE WATER AND SEWER AUTHORITY the
DEFENDANT , at 1530:00 HOURS, on the llth day of March
at 4 WEST STREET
NEWVILLE, PA 17241
FRED POTZER, BOROUGH MANAGER
a true and attested copy of COMPLAINT - EQUITY
, 2003
by handing to
ADULT IN CHARGE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18 00
7 59
00
10 00
00
35 59
Sworn and Subscribed to before
me this [~ day of
~2/b~_, ~072~ A.D.
~ P~ot~on~ot ary /J
So Answers:
R. Thomas Kline
03/12/2003
COSTOPOULOS FOSTER FIELDS
By:
eriff
WILLIAM C. KOLLAs,
WILLIAM C. COSTOPOULos,
JAMES C. COSTOPOULos,
GEORGE j. MALLIos and
TESSIE MALLIoS,
Plaintiffs
V.
NEWVILLE
AUTHORiTyTATER AND SEWER
Defendant
· IN THE COURT OF COMMON PLEAs OF
.: CUMBERLAND COUNTY, PENNSYLVANIA
.' NO. 2003-1022 Equity
CIVIL ACTION . EQUITY
TO:
William C. Ko/las, William C. Costopoulos,
James C. Costopoulos, George ~r. Mallios and Tessie Mallios
You are hereby notified to file a written response to the enclosed Preliminary Objections
to the Complaint within twenty (20) days from service hereof or a judgment may be entered
against you.
Date:-~.~~
SALZMANN, DEPAULIS & FISHMAN, p.c.
95 Alexander Spring Road, ,Suite 3
Carlisle, PA 17013
Tel: (717) 249-6333
Fax: (717) 249-7334
WILLIAM C. KOLLAs,
WILLIAM C. COSTOPOULos,
JAMES C. COSTOPOULos,
GEORGE j. MALL/oS and
TESSIE MALLIOS,
Plaintiffs
V.
NEWVILLE WATER AND
AUTHORITy, SEWER
Defendant
· IN THE COURT OF COMMON PLEAS OF
i CUMBER]LAND COUNTy, PENNSYLVANIA
· NO. 2003-1022 Equity
CIVIL ACTION _ EQUITY
AND NOW, COmes Defendant Newville Water and Sewer Authority ("NWSA"), by and
through its COUnsel, G. Bryan Salzmann, Esq. of the/aw firm ofSalzmann, DePaulis 8,: Fishman,
P.C., who submits these Preliminary Objections to the Plaintiffs' Complaint and in support thereof,
states the following:
1. The subject °fPlaintiffKollas, et al's (hereinafter collectively referred to as "Plaintiffs")
Complaint is a draft of an agreement entitled a Sewer Agreement whereby NWSA would, in return
for Compensation including payment of the appropriate tapping fees oft he NWSA, reserve capacity
for a certain Period of time at its wastewater treatment plant for Phases II and III of the North Newton
Hills Subdivision· Complaint, Exh. C.
2. Capacity at a wastewater treatment plant is administered on a first COme first served basis
and reserving capacity is not mandated by NWSA but is an option for a developer where the
developer desires to insure that there is apPropriate capacity at the wastewater treatment plant for
h/s/her entire development· Complaint, Exh. C,, 'Whereas'_ Paras. 7, 9
3. As set forth in Plaintiffs' Complaint, Mr. George Mallios and Mr. Dean Bear were the only
parties who requested reserved sewer capacity from Defendant NWSA for the aforesaid development
and NWSA and Mr. Mallios and Mr. Bear are the only named parties in the draft of the Sewer
Agreement. Complaint, Exh. C.
4. The Sewer Agreement has not been executed by either the applicants or NWSA and the
compensation to reserve the sewer capacity has never been paid to NWSA. Complaint, Para. 21.
5. The Sewer Agreement is alleged to have errors that need correction before it can be
executed by Mr. Mallios and Mr. Bear. Complaint, Para. 17; E'xh. H.
6. Acceptance of an offer must be unconditional and absolute. ~, 703 A. 2d
535 (Pa. Super. 1997),. see also, E. Allan Farnsworth Contracts, 3f3.20 (1982) (an attempt to add to
or change the terms of the offer tums the offeree's response from an acceptance into a counteroffer
and a rejection of the offer).
7. The offer of NWSA to reserve sewer capacity for the applicants was in the form of the
Sewer Agreement where upon execution by the applicants and NWSA, applicants would pay
$28,732.00 to NWSA and NWSA would reserve sewer capacity for Phases II and III of the North
Newton Hills Subdivision. Complaint, Exh. C.
8. Applicants will not execute the Sewer Agreement unless the Agreement is revised.
Complaint, Para. 17.
9. By their demand to revise the Sewer Agreement before execution, applicants rejected the
Sewer Agreement and counteroffered with a revised agreement which Plaintiffs have not alleged was
accepted by NWSA, or which was even provided to NWSA.
10. Scenario of conditional acceptance without parties' mutual agreement to such conditions,
cannot be basis of 'meeting of the minds' or intent to be mutually bound. ~,
729 A. 2d 1239 (Pa. Super. 1999).
11. Because of the rejection of the Sewer Agreement by applicants, there is simply no
agreement for this Honorable Court to enforce.
12. Plaintiffs are essentially requesting this Honorable Court to allow them to pay tapping fees
for reserved capacity which is substantially less than the tapping fees which everyone else on the
NWSA system is required to pay. Complaint, Exh. I, Para. 6.
WHEREFORE, Defendant respectfully requests this Ho~aorable Court to sustain the
preliminary objection and dismiss the Complaint with prejudice.
B. Lack of'urisdiction over the sub'ect matter Pa.R. Civ. P. ]~
a necessa ar Pa.R. Civ. P. No. 1028 a 5.
13. Paragraphs 1 through 12 are incorporated herein by reference as if fully set forth herein.
14. Mr. Dean Bear has not been named as a Plaintiff in this matter.
15. As applicant, Mr. Dean Bear has a joint interest with Mr. George Mallios in the
obligations, duties and rights under the Sewer Agreement.
16. Plaintiffs in their c/aim for relief seek to enforce the Sewer Agreement. Complaint, p. 9.
17. If this Honorable Court grants Plaintiffs their requested relief, Mr. Dean Bear as a party
to the Agreement will be bound by its terms.
18. Having a joint interest in the Sewer Agreement, Mr. Dean Bear is an indispensable and
necessary party because no decree can be made without impairing his rights under the Agreement.
Montella v. Berkheimer Assoc., 690 A.2d 802 (Pa. Cmwlth. 1997).
19. Because Mr. Dean Bear has not been joined, this Honorable Court acting in equity can
not grant relief. Guthrie Clinic, Ltd. V. Me er, ! 62 Pa. Cmwlth. 152, 638 A.2d 400 (1994~).
20. Mr. Dean Bear having a joint interest in the Sewer Agreement with Plaintiff George
Mallios must be joined as a plaintiff. Pa.R. Civ. P. No. 2227(a).
21. Failure to join an indispensable party deprives the court ofjurisd/ction. ~
~, 795 A.2d 495 (Pa. Cmwlth. 2002).
WHEREFORE, Defendant respectfully requests this Honorable Court to sustain the
preliminary objection and dismiss the Complaint with prejudice.
C. Lack of ca aei to she Pa.R. Civ. P. iNo. 1028 a 5.
22. Paragraphs 1 through 21 are incorporated herein by reference as if fully set forth herein.
23. Plaintiffs William C. Ko/las, William C. Costopoulos, James C. Costopoulos and Tessie
Mallios are not parties to the Sewer Agreement. Complaint, Exh. C.
24. The Sewer Agreement at Para. 13, Part-B and Para. 2, Part-D requires the approval of
NWSA for the sale, transfer or assignment of the reserved sewer capacity. Complaint, Exh. C
25. Part D, Paragraph 2 of the Sewer Agreement specifically provides that "This Agreement
may not be assigned by either party without the prior written consent of the other...". Complaint
Exh. C, Part D~ Para. 2, p. 10. ·
26. The Complaint does not aver that the Sewer Agreement 'was assigned to Plaintiffs Kollas,
William C. Costpoulos, James C. Costopoulos and Tessie Mallios.
27. Without an assignment of the Sewer Agreement, Plaintifl~ Kollas, William C.
Costopoulos, James C. Costopoulos and Tessie Mallios do not have an interest in the Sewer
Agreement.
28. Alternatively, Plaintiffs Kollas, William C. Costopoulos, James C. Costopoulos and
Tessie Mallios are not third party beneficiaries of the Sewer Agreement.
29. To be a third party beneficiary entitled to recover on a contract, both parties to the
contract must intend and must indicate that a third person be a beneficiary; the obligation to the third
person must be created and must affirmatively appear in the contract itself. State Public School
~137 Pa. Cmwlth. 252, 585 A. 2d l136 (1991).
30. Because the Sewer Agreement was created in November 2002 (Complaint, Para. 7)
before the Agreement of Sale was executed in January 2003 (Complaint, Exh. A), there was no intent
of the parties to the Sewer Agreement that Plaintiffs Ko/las, Will:lam C. Costopoulos, James C.
Costopoulos and Tessie Mallios be third party beneficiaries of the, Sewer Agreement.
31. The only reference in the Sewer Agreement to Plaint/ffs Ko/las, William C. Costopoulos
and James C. Costopoulos is in Para. 2 of the 'Whereas' section w~here the site of the Phase II and III
development is noted to be owned by them.
32. The Sewer Agreement does not indicate that Plaintiffs Ko/las, William C. Costopoulos,
and James C. Costopoulos were intended to be beneficiaries under the Sewer Agreement.
33. The Sewer Agreement does not contain any reference to Plaintiff Tessie Mallios.
WHEREFORE, Defendant respectfully requests this Honora~,le Court to sustain the
preliminary objection to the Complaint and dismiss the Complaint with prejudice.
D. Insufficient s ecifici Pa.R. Civ.p. No. 1028 a 3.
34. Paragraphs 1 through 33 are incorporated herein by reference as if fully set forth herein.
35. In the Complaint's claim for relief and at Para. 23, Plaintiffs in the alternative, request an
award of $139,304, the reservation charge in effect for all other ratepayers on NWSA's wastewater
system.
36. The Complaint fails to aver material facts to provide a basis for Plaintiffs' alleged
damages of $139,304.
37. The material facts on which a cause of action is based shall be stated in a Concise and
SUmmary form. Pa.R. Civ. P. No. 1019(a).
38. Pursuant to the Sewer Agreement and the Municipality Authorities Act, 53 Pa.C.S.A.
§5601 et. seq., to connect to NWSA's sewage collection system requires payment ora fee for tapping
and connect/on which together is referred to as the reservation charge. Complaint, Exh. C., Para. 8-
'Whereas 'section.
39. Under the Sewer Agreement, the reservation charge was $28,732.00 Complaint, Exh. C.,
Para. 1-Part B.
40. Plaintiffs have not paid nor have Plaintiffs ever tendered to NWSA the reservation charge
°f$28,732.00 Complaint, Para. 21.
41. If this Honorable Court orders NWSA to accept the Sewer Agreement, Plaintiffs will be
required to pay $28,732.00 to NWSA for reservation of the requested sewer capacity.
42. If this Honorable Court grants Plaintiffs their alternative claim for relief and awards them
$~39,304.00 Plaintiffs would pay nothing to cOnnect to NWSA's sewer system.
43. Damages should not place the promisee in a better position than performance of the
promise would have placed him. 2Cravers v. Cameron Coun School ~
544 A. 2d 547 (1987) (quoting Restatment 9i~st., !17 Pa. Cmwlth. 606,
(Sec°nd)of Contracts, ~90, crnt. d).
WHEREFORE, Defendant respectfully requests this Honorable Court to sustain the
preliminary objection and dismiss the Complaint with prejudice, or in the alternative, require
Plaintiffs to plead with specificity their basis of claim for damages.
44. Paragraphs 1 through 43 are incorporated herein by reference as if fully set forth herein.
45. The Complaint in the caption states 'Civil Action ._ Law/Equity,.
46. Promissory estoppel is an equitable cause of action.
47. Under Pa.R. Civ. P. No. 1508, the plaintiff may state two or more causes of action
cognizable in equity.
48. Rule 1508 bars the joining of legal and equitable causes of action.
49. Because promissory estoppel is on the equity side of the Court, this matter can not also be
on the law side of the Court.
50. The Complaint in the caption also demands a jury trial..
51. For Cases cognizable in equity, there is no Constitutional r/ght to a jury tr/al. ~
~, 276Pa. SUper 203, 419 A. 2d 167 (1980.
52. As stated in the 'And Now' clause at the beginn/ng of the Complaint, Plaintiffs
individually are proceeding pro se.
53. A pleading ora party not represented by an attorney shall be signed by the party.
Pa.R. Civ.p. No. 1023.1(b).
54. Because SOme of the Pla/ntiffs appear to be not represented by an attorney, each of the
pro se Plaintiffs must sign the pleading.
55. The Complaint is signed by only the Plaintiff William C. Costopoulos.
WHEREFORE, Defendant respectfully requests this Honorable Court to sustain the
preliminary objection and dismiss the Complaint with prejudice.
Respectfidly Submitted,
Dated: March ~"~, 2003
SALZMtLNN, DEPAULIS & FISHMAN, P.C.
Attorney~o. 61935~
William W. Thompson, Esquire
Attorney ID No. 624g2
95 Alexander Spring Road; Suite 3
Carlisle, PA 17013
Telephone: (717) 249-6333
Facsimile: (717) 249-7334
Attorneys for Defendant Newville Water and
Sewer Authority
.VERIFICATION
I verify that all the statements made in the foregoing Preliminary Objections are true and
correct to the best of my knowledge, information and belief, and that any false statements made are
subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
NEWVILLE WATER & SEWER AUTHORITY
Fred Potzer, Manager
CERTIFICATE OF SERVICE
I hereby certify that on the.2~'~ day of/L4a~e.~ , 2003, I served a true and correct copy of
the foregoing document via United States mail, first class, postage prepaid, addressed as follows:
William C. Kollas
William C. Costopoulos
James C. Costopoulos
c/o Kollas & Kennedy
1104 Femwood Ave, Suite 104
Camp Hill, Pa 17011-6912
George J. Mallios
Tessie Mallios
312 West Meadow Drive
Mechanicsburg, PA 17055
Respectfully submitted,
Salzmann,. DePaulis & Fishman, P.C.
William W. Thompson, Esquit/e
Counsel for Defendant
WILLIAM C. KOLLAS,
WILLIAM C. COSTOPOULOS
JAMES C. COSTOPOULOS,
GEORGE J. MALLIOS AND
TESSIE MALLIOS,
Plaintiffs
NEWVILLE WATER AND
SEWER AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2003 - 1022 Equity
CIVIL ACTION - LAW/EQUITY
JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO DEFENDANT'S PRELIMINARY OBJECTION~
AND NOW come the Plaintiffs, William C. Kollas, William C.
Costopoulos, James C. Costopoulos, George J. Mallios and Tessie
Mallios, pro se, and respectfully answer as follows:
A. Leqal Insufficiency of Pleadinq
1. Admitted.
2. After reasonable investigation, Plaintiffs are without
sufficient knowledge or information to form a belief as to the
truth of this averment and thus same is denied.
3. Admitted in part; denied in part. Ir'is admitted that
George Mallios and Dean Bear requested reserved sewer capacity and
that they are the only named parties in the draft of the sewer
agreement. By way of further answer, George Mallios and Dean Bear
did so on behalf of all the other Plaintiffs. The remainder of
this averment, and any legal inferences therefrom, are denied
specifically.
4. Admitted in part; denied in part. It is admitted only
that the sewer agreement was not executed by the Plaintiffs or
Defendant and the compensation to reserve the sewer capacity had
not been paid to Defendant. By way of further answer, as set forth
in the complaint, the sewer agreement provided the Plaintiffs could
not be executed because it contained errors and no compensation
could be paid Defendant until the errors were corrected, hence
Defendant's grant of an extension of time until the errors were
corrected. Any adverse
denied.
5.
6.
legal inference to the Plaintiffs is
Admitted.
This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
7. Admitted.
8. Admitted in part; denied in part. It is admitted only
that the Plaintiffs could not execute the sewer agreement until it
was corrected, hence Defendant's grant of an extension of time
until the errors were corrected. Any adverse legal inference to
the Plaintiffs is denied.
9. Denied. It is specifically denied that the Plaintiffs
demanded the revision of the sewer agreement before execution, that
they rejected the sewer agreement and that they counteroffered with
a revised agreement that was accepted or provided to Defendant. To
the contrary, the sewer agreement contained errors that had to be
2
corrected before it could be executed by the Plaintiffs, hence the
extension of time granted by Defendant.
10. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
11. This averment sets forth a legal conclusion to which no
response is required. To the extent a response.is required, the
same is denied.
12. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
B. Lack of Jurisdiction Over Subject Matter and Non-Joinder of ~
Necessary Party
13. No response required.
14. Admitted.
15. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
16. Admitted.
17. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
18. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
3
same is denied.
19. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
20. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
21. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
C. Lack of Capacity to Sue
22. No response required.
23. Admitted in part; denied in part. It is admitted only
that Plaintiffs William C. Kollas, William C. Costopoulos, James C.
Costopoulos and Tessie Mallios are not named as parties in the
sewer agreement. It is specifically denied that they are not
parties to the sewer agreement. To the contrary, by virtue of the
agreement of sale between them as set forth in more detail in the
complaint, they are parties to the sewer agreement and/or third-
party beneficiaries of same.
24.
itself.
25.
itself.
No response required. The sewer agreement speaks for
To the extent a response is required, same is denied.
No response required. The sewer agreement speaks for
To the extent a response is required, same is denied.
4
26.
27.
response is required.
same is denied.
Admitted.
This averment sets forth a legal conclusion to which no
To the extent a response is required, the
28. Denied. It is specifically denied that Plaintiffs
William C. Kollas, William C. Costopoulos, James C. Costopoulos and
Tessie Mallios are not third-party beneficiaries of the sewer
agreement. To the contrary, if it is concluded that they are not
parties to the sewer agreement, they are third-party beneficiaries
to it.
29. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
30. Denied. It is specifically denied that there was no
intent of the parties to the sewer agreement that Plaintiffs
William C. Kollas, William C. Costopoulos, James C. Costopoulos and
Tessie Mallios be third-party beneficiaries to the sewer agreement.
To the contrary, the aforesaid parties knew that said Plaintiffs
were and intended them to be third-party beneficiaries to the sewer
agreement.
31.
itself.
32.
No response required. The sewer agreement speaks for
No response required. The sewer agreement speaks for
itself.
5
33. No response required.
itself.
D. Insufficient Specificity
34. No response required.
Admitted.
35.
36.
The sewer agreement speaks for
Denied. It is specifically denied that the complaint
fails to aver material facts to provide a basis for Plaintiffs'
damages of $139,034. To the contrary, the damages of $139,304 are
calculated based on the most recent connection fees imposed by the
Defendant, which the Plaintiffs will be required to pay should the
agreement and promise of extension not be enforced.
37. No response required.
38. No response required. The sewer agreement and
Municipality Authorities Act speak for themselves.
39. No response required. The sewer agreement speaks for
itself.
40. Admitted. By way of further answer, Plaintiffs could not
pay or tender the reservation charge to Defendant because the sewer
agreement contained errors, hence Defendant's grant of an extension
of time.
41. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
42. This averment sets forth a legal conclusion to which no
6
response is required. To the extent a response is required, the
same is denied.
43. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
E. Failure of Pleadinq to Conform to Law
44. No response required.
45. No response required. The complaint speaks for itself.
46. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
47. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
48. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
49. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
50. No response required. The complaint speaks for itself.
51. This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
7
52.
53.
54.
No response required. The complaint speaks for itself.
No response required.
This averment sets forth a legal conclusion to which no
response is required. To the extent a response is required, the
same is denied.
55. No response required. The complaint speaks for itself.
WHEREFORE, Plaintiffs respectfully request that Your Honorable
Court deny and dismiss the preliminary objections of Defendant.
RESPECTFULLY SUBMITTED:
William C. Kollas
William C. Costopoulos -
James C. Costopoulos
George J. Mallios
Tessie Mallios
KOLLAS AND KENNEDY
1104 Fernwood Avenue
Camp Hill, Pennsylvania 17011
Phone: (717) 731-1600
DATED: May 7, 2003.
VERIFICATION
On behalf of all Plaintiffs, I verify that the statements made
in the foregoing document are true and correct to the best of my
knowledge, information and belief. I understand that false
statements herein are made subject to the penalties at 18 Pa.C.S.
§ 4904 relating to unsworn falsification to aut~Qrities.
William C. Costopoulos
DATED: May 7, 2003.
9
Certificate of Service
I, William C. Costopoulos, Esquire, on behalf of all
Plaintiffs, do hereby certify that a true and correct copy of this
RESPONSE was served upon the Defendant by placing same in the
United States Mail, first class postage prepaid, on the below date
and addressed as follows to counsel:
G. Bryan Salzmann, Esq.
95 Alexander Springs Road
Carlisle, PA 17013
W 1/i~am C. Costopoulos
Esquire
DATED: May 7, 2003.
10
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Pl~ge ]ist thewithinmatterforthe next;~tCourt.
CAPTION OF CASE
(entire caption must be stated in ~l]])
William C. Kollas,William C. Costopoulos,
James C.Costopoulos, GeorGe J. Mallios,
and Tessie Mallios
(Plaintiff)
Newville Water and Sewer Authority
( Defendant )
No2003- 1022 Civil 19
State matter to be arcjued (i.e., plaintiff's motion for new tr~a], defendant's
d~J~i~-l: to c~,~l~nt, etc. ):
Defendant's Preliminary Objections
Identify counselwhowill argue case:
(a) for plaintiff:William C. CostoDoulos,
/u%~ess: 83~ Market STreet
P.O. Box 222
Lemoyne,PA 17043
(b) for defer~l~nt: G. Bryan Salzmann, Esquire
~]d~ess: 95 Alexander Spring Road~
Carlisle, PA ~7013
ESquire
Suite 3
3. I wi 11 notify al 1 parties in writing within two days that ~ ~e has
been listed for ~t.
4. Argument Court Date:
July 23, 2003
WILLIAM C. KOLLAS : IN THE COURT OF COMMON PLEAS OF
WILLIAM COSTOPOULOS: CUMBERLAND COUNTY, PENNSYLVANIA
JAMES C. COSTOPOULOS:
GEORGE J. MALLIOS
AND TESSIE MALLIOS NO. 2003-1022 EQUITY
NEWVILLE WATER : CIVIL ACTION - EQUITY
AND SEWER AUTHORITY:
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY, GUIDO, JJ'_.
ORDER OF COURT
AND NOW, this ~l/'~__ da3, of DECEMBER, 2003, for the reasons set forth in
the accompanying opinion, it is hereby ordered and directed as follows:
1 .) Defendant's Preliminary Objections in the nature of a demurrer, those
questioning the standing of the plaintiffs and those challenging the specificity
of the complaint are DENIED.
2.) The Preliminary Objection alleging that the complaint fails to conform to law
is GRANTED in part and DENiED in part. It is granted insofar as the caption
shall delete any reference to "Law" since this is an equity cause of action. In
all other respects it is DENIED.
3.) The Preliminary Objection alleging the nonjoinder of a necessary party is
GRANTED. This action shall be dismissed unless Dean Bear is joined as a
party within twenty (20) days.
Edward E. Guido, J.
v'William C. Costopoulos, Esquire
831 Market Street
P.O. Box 222
Lemoyne, Pa. 17043
· ~. Bryan Salzmann, Esquire
455 Phoenix Drive
Chambersburg, Pa. 17201
:sld
12- 31-
WILLIAM C. KOLLAS : IN THE COURT OF COMMON PLEAS OF
WILLIAM COSTOPOULOS: CUMBERLAND COUNTY, PENNSYLVANIA
JAMES C. COSTOPOULOS:
GEORGE J. MALLIOS
AND TESSIE MALLIOS NO. 2003-1022 EQUITY
NEWVILLE WATER : CIVIL ACTION - EQUITY
AND SEWER AUTHORITY:
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY, GUIDO, JJ'_.
OPINION AND ORDER
Currently before us are several preliminary objections which have been filed by
the defendant. Before we address the objections, we will review the facts as set forth in
the complaint.
FACTUAL BACKGROUND
Plaintiffs William Costopoulos, James Costopoulos and William Kollas
(hereinafter "Owners") own the North Newton Hills Subdivision located in Newville,
Cumberland County, Pennsylvania. 1 Defendant Newville Water and Sewer authority is a
governmental authority of the Borough ofNewville.2
The development rights to Phases II and III of the subdivision had been listed for
sale with a local real estate firm. On November 22, 2002, the Defendant advised the
Owners' realtor that it had "agreed to provide reserve capacity to George Mallios and
~ See Complaint, paragraph 4. Although the complaint lists the location as Newville, the exhibits refer to
the location as North Newton Township.
: See Complaint, paragraph 3.
NO. 2003-1022 EQUITY
Dean Bear for the development of 44 new homes in the North Newton Hills Subdivision,
Phases II and III" (emphasis added).3 Shortly thereafter, Defendant's attorney sent a
draft "Sewer Agreement" to the Owners' realtor. It listed George Mallios and Dean
Bear "jointly" as the "Applicant".4 The agreement provided, inter alia, that "Applicant
will develop a housing development known as North Newton Hills, Subdivision Phases II
and III" on lands "presently owned by William C. Kollas, William C. Costopoulos and
James Costopoulos? It went on to provide that defendant would reserve sewage
capacity for "44 EDU's" in return for "a reservation charge of $28,732 or $653 per
EDU.''6 The agreement also set an annual reservation rental charge of $4,672.80 for the
44 EDU's.7 Finally, the agreement provided that it could not be assigned "by either party
without the prior written consent of the other...".8
On December 19, 2002, Defendant's attorney sent a letter to the Owners' realtor
to advise him that Defendant had increased its fees. It went on to state:
If the Sewer Agreement is not executed and the reservation charge
of $28,732.00 is not received by the Authority by its next meeting on
January 22, 2003, the Sewer Agreement that was provided to you on
November 25, is void and Phases II and III will be subject to the fees
adopted December 18, 2002.
Should you have any questions concerning this matter, please
contact the Borough Manager, Mr. Fred Potzer, at (717) 776-7633.0
Exhibit D to the Complaint.
Exhibit C to the Complaint.
Exhibit C to the Complaint.
Exhibit C to the Complaint.
Exhibit C to the Complaint.
Exhibit C to the Complaint.
Exhibit E to the Complaint. Fred Potzer was also Defendant's Manager.
NO. 2003-1022 EQUITY
Pursuant to a telephone conference with Fred Potzer on January 21, 2003,
Plaintiffs Kollas and George Mallios received an extension to January 28, 2003 to meet
the aforementioned requirements,l° On that same date, PlaintiffKollas faxed a letter to
Fred Potzer which stated in relevant part:
Please be advised that William C. Kollas, William C. Costopoulos and
James C. Costopoulos, owners of the remaining ground in North
Newton Subdivision Phases II and III will exercise the reservation of
the sewer capacity for North Newton Hills and will remit to you the
sum of $28,732.00 on or before January 28, 2003. In the interim, we
will have a sewer agreement executed by these gentlemen or their
assigns and sent to you as well.~
On January 23, 2003, Defendant advised Plaintiff Kollas that "the Board denied
your request for reservation of sewer capacity.''~2 (emphasis added). He was also told
that the Sewer Agreement was void since it had not been signed and forwarded along
with the reservation fee? The letter concluded by stating that "any new agreement
would be subject to the new rate of $3166.00 per EDU."~4
On January 27, 2003, the Owners agreed to sell Phases II and III to the remaining
plaintiffs herein, George Mallios and Tessie Mallios. The sales agreement provided,
inter alia, that the Mallios' would reimburse Sellers for the cost of the sewer reservation
fee at the time of settlement? It also provided that if the cost exceeded $28,732, the
agreement would be void.~6
to Complaint paragraph 14.
n Exhibit F to the Complaint.
~2 Exhibit G to the Complaint.
~3 Exhibit G to the Complaint.
~4 Exhibit G to the Complaint.
ts Exhibit B to the Complaint.
~6 Exhibit B to the Complaint.
NO. 2003-1022 EQUITY
On January 28, 2003, Plaintiff Kollas requested that Defendant honor "our
exercise of the reservation of the sewer capacity"? The Defendant responded that it
would not honor the request, explaining:
The request for sewer capacity was presented by Mr. Norm Dellinger
and the proposed draft Sewer Agreement was drafted between the
Authority and Mr. George Mallios and Mr. Dean Bear. Therefore,
William C. Costopoulous, James C. Costopolous and yourself are
simply not parties to the agreement, nor did you.., ever make the
request to reserve sewer capacity for North Newton Hills.
(emphasis added). 18
Thereafter Plaintiffs instituted the instant action in promissory estoppel. They
allege that they relied upon the extension granted by Mr. Potzer. Therefore, they contend
that "the promise of the Defendant Authority should be enforced,''~9 and that this Court
"direct Defendant Authority to accept the aforesaid sewer agreement pursuant to its
original terms in all respects...,,.20
DISCUSSION
Defendant has filed five separate preliminary objections. They are 1) demurrer;
2) failure to join a necessary party; 3) lack of standing of all plaintiffs except George
Mallios, 4) insufficient specificity; and 5) failure of the pleading to conform to law. We
will grant the second preliminary objection because we are satisfied that Dean Bear is an
indispensable party to this action. We will dismiss preliminary objections 1 and 4
without discussion because, in our view, they are clearly without merit. For the reasons
~7 Exhibit H to the Complaint.
~8 Exhibit I to the Complaint.
~9 Complaint, paragraph 23.
20 Complaint, "Wherefore" clause.
NO. 2003-1022 EQUITY
hereinafter set forth, we will dismiss the majority of the remaining preliminary
objections?
Indispensable Party.
Defendant contends that Dean Bear is an indispensable party to this action? To
the extent that the complaint seeks to enforce the Sewer Agreement, we agree.
The general rule is that "a party in an equity action is indispensable when he has
such an interest that a final decree cannot be made without affecting it, or leaving the
controversy in such a condition that a final determination may be wholly inconsistent
with equity and good conscience." Mechanicsburg Area School Dist. V. Kline, 494 Pa.
476, 481,431 A.2d 953,956 (1981) (citations omitted). In other words, "his presence as
a party is indispensable where his rights are so connected with the claims of the litigants
that no decree can be made between them without impairing such rights." Id. The
determination
of this issue involves considering the following questions:
1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent
parties?
In the instant case, Dean Bear is a joint applicant and party to the proposed Sewer
2~ We address the remaining preliminary objections so that they need not be relifigated in the event Dean
Bear is joined as a party plaintiff.
22 This preliminary objection is based upon Pa. Rule of Civil Procedure 2227(a) which provides:
"Persons having only a joint interest in the subject matter of an action must be j oined on the same
side as plaintiffs or defendants."
NO. 2003-1022 EQUITY
Agreement. His rights and obligations under, and interest in, that agreement cannot be
separated from those of George Mallios. The Defendant would be entitled to look to both
Dean Bear and George Mallios for the performance of the applicants' numerous
obligations thereunder. Since any order directing that the agreement be enforced would
significantly impact Dean Bear, he is clearly an indispensable party to this action. The
failure to join an indispensable party deprives us of subject matter jurisdiction. Huston v.
Campanini, 464 Pa. 147,346 A.2d 258 (1975). Therefore, Defendant's request that this
action be dismissed for failure to join an indispensable party must be granted unless Dean
Bear is joined as a party Plaintiff.
Standing of the Plaintiffs.
Defendant next contends that none of the plaintiffs, except George Mallios, have
standing to bring the instant action. We disagree.
The doctrine of standing "is a prudential, judicially-created tool meant to winnow
out those matters in which the litigants have no direct interest in pursuing the matters."
In re: Hickson, 821 A.2d 1238, 1243 (Pa. 2003). The requirement of standing is
"critical" to ensure that there is a "legitimate controversy before the Court." Id.
(citations omitted). The Hickson Court went on to state:
In practical terms, we are assured that there is a legitimate controversy
if the proponent of a legal action has somehow been "aggrieved" by
the matter he seeks to challenge. A litigant can establish that he has
been "aggrieved" if he can show that he has a substantial, direct and
immediate interest in the outcome of the litigation in order to be
deemed to have standing. "A 'substantial' interest is an interest in the
outcome of the litigation which surpasses the common interest of all
citizens in procuring obedience to the law. A 'direct' interest requires
a showing that the matter complained of caused harm to the party's
interest. An 'immediate' interest involves the nature of the causal
NO. 2003-1022 EQUITY
connection between the action complained of and the injury to the
party challenging it." Yet, if that person "is not adversely affected in
any way by the matter he seeks to challenge [, he] is not 'aggrieved'
thereby and has no standing to obtain a judicial resolution of his
challenge. In particular, it is not sufficient for the person claiming to
be 'aggrieved' to assert the common interest of all citizens in
procuring obedience to the law."
821 A.2d at 1243 (citations omitted).
Applying the criteria set forth in Hick~on, we are satisfied that all plaintiffs have
standing. The owners are referenced in the Sewer Agreement and will clearly benefit by
its implementation. Further, they, along with Tessie Mallios, are parties to an Agreement
of Sale which is contingent upon the enforcement of the reservation fee contained in the
Sewer Agreement. Under these circumstances, all of the plaintiffs are aggrieved by the
Defendant's failure to abide by the terms of the proposed agreement. Consequently, the
preliminary objections challenging standing are without merit.
Failure of the Complaint to Conform to Law.
In its last preliminary obi ection Defendant alleges several instances in which the
complaint fails to conform to law. We are satisfied that they are all without merit except
one. The caption lists the complaint as "Civil Action - Law/Equity". Defendant
correctly points out that a cause of action for promissory estoppel is addressed to the
equity side of the Court. Crouse v. Cyclops Industries, 560 Pa. 394, 403, 745 A.2d 606,
610 (2002). In the event Plaintiffs file an amended complaint, this particular preliminary
objection should be remedied.
NO. 2003-1022 EQUITY
ORDER OF COURT
AND NOW, this 31sT day of DECEMBER, 2003, for the reasons set forth in the
accompanying opinion, it is hereby ordered and directed as follows:
1 .) Defendant's Preliminary Objections in the nature of a demurrer, those
questioning the standing of the plaintiffs and those challenging the specificity
of the complaint are DENIED.
2.) The Preliminary Objection alleging that the complaint fails to conform to law
is GRANTED in part and DENIED in part. It is granted insofar as the caption
shall delete any reference to "Law" since this is an equity cause of action. In
all other respects it is DENIED.
3.) The Preliminary Objection alleging the nonjoinder of a necessary party is
GRANTED. This action shall be dismissed unless Dean Bear is joined as a
party within twenty (20) days.
By the Court,
William C. Costopoulos, Esquire
G. Bryan Salzmann, Esquire
:sld
/s/Edward E. Guido
Edward E. Guido, J.
WILLIAM C. KOLLAS,
WILLIAM C. COSTOPOULOS
JAMES C. COSTOPOULOS,
GEORGE J. MALLIOS,
TESSIE MALLIOS and
DEAN BEAR,
Plaintiffs
NEWVILLE WATER AND
SEWER AUTHORITY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2003 - 1022 EQUITY
CIVIL ACTION - EQUITY
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff(s). You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Phone: (717) 249-3166
WILLIAM C. KOLLAS,
WILLIAM C. COSTOPOULOS
JAMES C. COSTOPOULOS,
GEORGE J. M3~LLIOS,
TESSIE MALLIOS and
DEAN BEAR,
Plaintiffs
NEWVILLE WATER AND
SEWER AUTHORITY,
Defendant
PLAINTIFFS'
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2003 - 1022 EQUITY
CIVIL ACTION - EQUITY
AMENDED COMPLAINT
AND NOW come the Plaintiffs, William C. Kollas, William C.
Costopoulos, James C. Costopoulos, George J. Mallios, Tessie
Mallios and Dean Bear, by and through their attorney,
Costopoulos, Esquire, and respectfully represent as
support of this Amended Complaint:
Parties
1. Plaintiffs, William C. Kollas,
William C.
follows in
William C. Costopoulos and
James C. Costopoulos, are adult individuals with a primary place of
business located at COSTOPOULOS, FOSTER & FIELDS, 831 Market
Street, Lemoyne, Cumberland County, Pennsylvania 17011.
2. Plaintiffs, George J. Mallios and Tessie Mallios, husband
and wife, are adult individuals residing at 312 West Meadow Drive,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. Plaintiff, Dean Bear, is an adult individual residing at
1133-A Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania
17013.
4. Defendant, Newville Water and Sewer Authority, is a
governmental authority of the Borough of Newville, with its primary
place of business located at the Borough Office, 4 West Street,
Newville, Cumberland County, Pennsylvania 17241.
Facts Common to All Counts
5. Plaintiffs Kollas, Costopoulos and Costopoulos own certain
real property in North Newton Township, Cumberland County,
Pennsylvania, known as the North Newton Hills Subdivision, which
has been in the process of development for a number of years.
6. Plaintiffs Kollas, Costopoulos and Costopoulos have
entered into an agreement of sale with Plaintiffs George J. Mallios
and Tessie Mallios for the purchase of the aforesaid real property.
See agreement of sale, marked Plaintiffs' Exhibit "A", attached
hereto and made a part hereof.
7. According to the addendum to the aforesaid agreement of
sale:
Buyers are responsible for all costs for the sub-division
including the Sewer reservations by Newville Borough.
The cost for the sewer reservation is $28,732.00. Seller
will purchase the sewer reservation prior to settlement
within the allotted time provided by the sewer authority.
Seller will transfer the sewer reservation to the Buyers
at time of settlement. Buyers will reimburse the Sellers
for the cost of the sewer reservation, $28,732.00, at
time of settlement. If the sewer reservation costs
exceed $28732.00, this agreement is null and void.
See addendum to agreement of sale, marked Plaintiffs' Exhibit "B",
attached hereto and made a part hereof.
2
Esquire,
Agreement
On or about Noveraber 20, 2002, William W. Thompson,
assistant solicitor for Defendant, faxed a draft "Sewer
- Newville Borough Water and Sewer Authority -- Project:
North Newton Hills, Subdivision Phases II and III" to Norman
Dellinger, the real estate agent handling the sale of the aforesaid
real property. See draft sewer agreement, marked Plaintiffs'
Exhibit "C", attached hereto and made a part hereof.
9. The aforesaid draft sewer agreement references as the
applicants Plaintiffs George Mallios and Dean Bear, who intend to
develop a housing development known as North Newton Hills
Subdivision Phases II and III to be located in North Newton
Township, Cumberland County, on the real property that is currently
owned by Plaintiffs Kollas, Costopoulos and Costopoulos. See draft
sewer agreement, page 1, paragraph 2, Exhibit "C".
10o According to the aforesaid draft sewer agreement, the
Defendant Authority granted reserve sanitary sewage capacity for 44
(forty-four) EDUs (equivalent dwelling units) at $653 (Six Hundred
Fifty-three Dollars) per unit for a total of $28,732.00 (Twenty-
eight Thousand, Seven Hundred and thirty-two Dollars and No Cents).
See draft sewer agreement, Part B, paragraph 1, page 4, Exhibit
11. Also, according to the aforesaid draft sewer agreement,
the Defendant Authority set a reservation rental charge for the 44
(forty-four) EDUs at $1,168.20 (One Thousand, One Hundred sixty-
3
eight Dollars and Twenty Cents) or $4,672.80 (Four Thousand, Six
Hundred seventy-two Dollars and Eighty Cents)·
agreement, Part B, paragraph 2, page 4, Exhibit
12. Plaintiffs Kollas, Costopoulos and
See draft sewer
~;C;I ·
Costopoulos are
referenced in paragraph 2 of the aforesaid draft agreement as the
current owners of the "[1lands for the development." See draft
sewer agreement, paragraph 2, page 1, Exhibit "C".
13. At all times relevant herein, Fred A. Potzer, Newville
Borough Manager, was an agent, servant and/or employee of Defendant
Authority with the title of "Authority Manager" and acted within
the scope of its authority and in the course of its agency,
servitude and/or employment.
14. By letter dated November 22, 2002, Fred A. Potzer, "FOR
THE NEWVILLE WATER AND SEWER AUTHORITY," wrote to Norman Dellinger,
the real estate agent handling the sale between the Plaintiffs, and
informed him that the Defendant Authority, at its meeting of
November 20, 2002, agreed to preserve reserve capacity for 44
(forty-four) new homes in the North Newton Hills Subdivision
(phases II and III); that the authority's assistant solicitor,
William Thompson, was in the process of revising the necessary
agreement and would be forwarding it to him for signature by the
parties; and that a copy of the letter was being forwarded "to the
North Newtown Township Board to Supervisors to confirm that you
have reached agreement with the Newville Water and Sewer Authority
4
to provide water and sewer services to the proposed development."
See letter of November 22, 2002, marked Exhibit "D", attached
hereto and made a part hereof.
15. By letter dated December 19, 2002, William Thompson,
assistant solicitor for the Defendant Authority, informed Norman
Dellinger, the real estate agent, that the Defendant Authority, at
its December 18, 2002 meeting, adopted a resolution significantly
increasing the connector fee to the sewer system from $653 (Six
Hundred Fifty-three Dollars) to $1,041 (One Thousand Forty-one
Dollars) per EDU (equivalent dwelling unit); that if the aforesaid
sewer agreement was not executed and the reservation charge of
$28,732.00 (Twenty-eight Thousand, Seven Hundred and thirty-two
Dollars and No Cents) was not received by January 22, 2003, the
aforesaid sewer agreement would be void and the subdivision would
be subject to the fees adopted on December 18, 2002; and that any
questions should be referred to Fred Potzer, the borough manager.
The letter indicated that a copy of the letter was sent to "Fred
Potzer, Water and Sewer Authority." See letter of December 19,
2002, marked Exhibit "E", attached hereto and made a part hereof.
16. On January 21, 2003, Plaintiffs Kollas and George
Mallios, pursuant to the directive of Authority Assistant Solicitor
Thompson, telephonically contacted Fred Potzer in his capacity as
manager of the Defendant Authority, requested an extension from the
Defendant Authority to execute the aforesaid sewer agreement and to
5
remit the reservation charge of $28,732.00 (Twenty-eight Thousand,
Seven Hundred and thirty-two Dollars and No Cents), and received
from the Defendant Authority an extension until January 28, 2003 to
accomplish same.
17. Plaintiffs Kollas and George Mallios confirmed the
aforesaid extension from the Defendant Authority by fax letter to
Fred Potzer of the Defendant Authority on January 21, 2003:
Please be advised that William C. Kollas, William C.
Costopoulos and James C. Costopoulos, owners of the
remaining ground in North Newton Hills Subdivision Phases
II and III[,] will exercise the reservation of the sewer
capacity for North Newton Hills and will remit to you the
sum of $28,732.00 on or before January 28, 2003. In the
interim, we will have a sewer agreement executed by these
gentlemen or their assigns and sent to you as well.
See letter of January 21, 2003, marked Exhibit "F",
and made a part hereof.
18. By letter dated January 23,
solicitor for the Defendant Authority,
attached hereto
2003, G. Bryan Salzmann,
notified Plaintiff Kollas
that the Defendant Authority, at its meeting of January 22, 2003,
had denied their request for reservation of sewer capacity; that
since the sewer agreement and reservation charge were not received
by Defendant Authority at that meeting, the sewer agreement was
void; and that Defendant Authority would enter into new
negotiations for an agreement subject to the new rate of $3,166.00
(Three Thousand, One Hundred and Sixty-six Dollars and No Cents)
per EDU. See letter of January 23, 2003, marked Exhibit "G",
attached hereto and made a part hereof.
19. By letter dated January 28, 2003, Plaintiff Kollas
outlined the above history to Defendant Authority Solicitor
Salzmann; pointed out to him that Fred Potzer had advised him and
George Mallios that so long as they exercised their option to
reserve sewer capacity and paid the reservation charge on or before
January 28, 2003, they would have complied with the sewer agreement
given to Mr. Mallios; stated that some errors were in the draft
sewer agreement that had to be corrected and so it could not be
executed by January 21, 2003 regardless (e.g., it stated that there
are 26 residences in Phase III and 18 residences in Phase II when
it is the reverse); and requested that Defendant Authority honor
the terms of its commitment as set forth in the sewer agreement.
See letter of January 28, 2003, marked Exhibit "H", attached hereto
and made a part hereof.
20. By letter dated February 21, 2003, Leroy Finkey, chairman
of Defendant Authority, informed Plaintiff Kollas that Defendant
Authority had denied their request for reconsideration; that
Plaintiffs Kollas, Costopoulos and Costopoulos were never parties
to the sewer agreement; that the new January 2003 tapping fee was
in effect for all applicants; and that Defendant Authority Manager
Potzer was not authorized to grant the extension of time to
Plaintiffs. See letter of February 21, 2003, marked Exhibit "I",
attached hereto and made a part hereof.
7
Promissory EstopDe]
21. The averments set forth in paragraph 1 through 20 above
are incorporated herein by reference.
22. Defendant Authority promised Plaintiffs that they could
have a seven (7) day extension to execute the aforesaid sewer
agreement and to remit the reservation charge of $28,732.00
(Twenty-eight Thousand, Seven Hundred and thirty-two Dollars and No
Cents), that is, until January 28, 2003, which promise Defendant
Authority should have reasonably expected would induce Plaintiffs
not to do so before that date as opposed to January 21, 2003, the
original date.
23. In point of fact, Plaintiffs refrained from executing the
aforesaid agreement and remitting the reservation charge of
$28,732.00 (Twenty-eight Thousand, Seven Hundred and thirty-two
Dollars and No Cents) on or before January 21, 2003 based on the 7
(seven) day extension of time granted them by Defendant Authority.
24. Had Defendant Authority not given the extension of time,
Plaintiffs would have executed the aforesaid sewer agreement and
remitted the reservation charge on January 21, 2003.
25. As a result of the detrimental and foreseeable reliance
of Plaintiffs, the promise of Defendant Authority should be
enforced or, alternatively, monetary damages should be awarded
Plaintiffs based on the latest connection fees, that is, a total of
$139,304 (One Hundred Thirty-nine Thousand, Three Hundred and Four
Dollars) (44 EDUs at $3,166.00 per EDU).
WHEREFORE, Plaintiffs hereby demand judgment against Defendant
Authority and this Honorable Court is respectfully asked to order
and direct Defendant Authority to accept the aforesaid sewer
agreement pursuant to its original terms in all respects, including
as to the reservation and rental charges or, alternatively, award
monetary damages of $139,304 (One Hundred Thirty-nine Thousand,
Three Hundred and Four Dollars).
RE~F~MITTED:
William C. Costopoulos, Esquire
COSTOPOULOS, FOSTER & FIELDS
831 Market Street/P.O. Box 222
Lemoyne, PA 17043
Phone: (717) 761-2121
ATTORNEY FOR PLAINTIFFS
DATED: January 13, 2004.
9
~-ERIFICATION
I verify that the statements made in the foregoing document
are true and correct to the best of my knowledge, information and
belief. I understand that false statements herein are made subject
to the penalties at 18 Pa.C.S. ~ 4904 relating to unsworn
falsification to authorities.
William C. Kollas
DATED: January 13, 2004.
10
· STANDARD AGREEMENT FOR TIIE SALE OF VACANT LAND A/S-VL
BROKER IS 'l'l I~: A(;E~F FOR SELLER ~a~t ~ Age~(s) f~ller, if apld~: ............. . _._J
lafie~ o1' a well BUYER WAIV~ q~c[l S (?~flg.,N,an? ~ Bu-~ will rake a com~, ~ttn, a~iic~fi~ for dz mun~ral "PPm . t6Z
ADDENDUM TO AGREEMENT OF 5ALE
This is an addendum to the agreement of sale dated ~Tanuary 27, Z003 for
the purchase of vacant land known as Phase ~ and Phase ~ of a
development in Nocth Newton Township, Cumberland County, Newville PA
ZTZ41, known as "North Newton Hills" by and between William C. Kollas,
~Tames C. Costopoulos & William C. Costopoulos known as the Sellers and
Geocge ,T. and Tassie Mallias known as the Buyers. Seller and Buyers hereby
agree to the following:
a ];ncluded in the s~le are the following: All existing plans for final sub-
division that are now available.
a Buyers ar~ responsible for all costs foe the sub-division including the
Sewer reservations by Newville Borough. The cost foe the sewer
~eservation is $28,732.00. Seller will poechase fhe sewer reservatian
prior to settlement within the allotted time provided by the sewer
authoeity. Seller will transfer the se~er reservation tothe Buyers at
time of settlement. Buyers will ~eimburse the Sellers for the cost of
the sewer r,aservatian, $28,732.00, at time of set.tlement. I~ ~ ~
~'"'""'- ' ~, ~eo'~e 3'. Mallio$
Seller,' "'~'"~'ilha"~m C.~Costopoulos ~ _
PROJECT:
IH.
SEWER AGREEMENT
NEWVILLE BOROUGH WATER AND
SEWER/1 UTHORITY
NORTH NEWTON HILLS, SUBDMSION PHASES II AND
This Agreement is entered into this __ day of , 2002, by and
between the Newville Borough Water and Sewer Authority ('Authority'), a body existing by
virtue of the laws of the Commonwealth of Pennsylvania, with its principal offioe at 4 West
Street, Newville, Cumberland County, Pennsylvania, and George Mal]ios, 312 West Meadow
Drive, Mechanicsburg, Pennsylvania 17055 and Dean Bear 1133 A Harrisburg Pike ~Carlisle,
Pennsylvania 17013 (hereinafter jointly referred to as 'Applicant').
1. Authority owns and operates sewage collection and treatment facilities in the
Borough of Newville and West Pennsboro and North Newton Townships, Cumberland County,
Pennsylvarfia.
2. Applicant will develop a housing development known as North Newton Hills
Subdivision Phases II and ffl ('Project') to be located in North Newton Township. The lands for
the development are presently owned by William C. Kollas, William C. Costopoulus and James
Costopoalos.
3. Under an Intergovernmental Cooperation Agreement, dated May 3, 1993
between North Newton Township, the Authority and the Borough of Newville, the Authority is
to provide sewage collection and treatment servic~ for the lands owned by William Kollas,
William Costopeulos and James Costopoulos and to be developed and subdivided as the land
development known as North Newton Hills.
4. For Phase II, eighteen (18) homos will be built by the Applicant and for Phase
Ill, twenty-six (26) homes will be built by the Applicant. For the purposes of this Agreement,
one home will be assumed to equate to one EDU ('equivalent dwelling unit').
5. As part of the Project, Applicant will construct, at their own cost and expense
and by their own contractor, a sewer main to be an extension to the existing sewage system,
owned and operated by the Authority, to serve the homes to be built by Applicant in Phases II
and III. Upon completion of the sewer system extension, Applicant will offer for dedication the
extension to the Authority. The Authori 's aec tan
ty op ce of the dedication ia contingent upon the
extension being constructed in conformance with tho Project Documents.
6 Sewage generated by the homes to be built in Phases II and III will be
transported in the Authority's sewage collection system and be treated at the Authority's
wastewater treatment plant.
· . .7. Applicant desil~ to reserve sanitary sewer systean capacity in the A. uthority's
sewage conection and treatment system and to pay reservation charges beginning from the date
ofpttrehase of such capacity until the capacity is used.
8. By resolution adopted September 22, 1999, the Authority under its authority
under the Municipality Authoritie~ Act imposed a charge for sewage service capacity of $503 per
EDU for tapping fees and a $150 connection foe for inspection and administrative costs for each
connection.
9. Such sewage capacity reserved for Applicant shall remain unavailable to
others who may have immediate need of the same.
10. For the above stated reasons, the Authority has deemed it in the bea~ interest
of the public, existing me. rs of the sanitary sewage system, and potential users without reserved
capacity, that Applicant, desiring to re.a-ye sewage capacity, pay a charge designed and
calculated to amortize the cost of that portion of the system allocated to and re~erved by it.
11. The parties hereto are desirous of specifically delineating their respective
' rights and obhgnfions for reserving capacity at the Authofity's wastewater treatment plant and in
the collection system in aecordanoe with applicable provisions of the Municipalities Planning
Code, the Municipality Authorities Act and the Authority's Rules and Regulations and any other
applicable laws and/or regulations.
NOW THEILEFORE, in consideration of the above recitals and of the mutual covenants,
obligations, undertakings and agreements contained herein, subject to the conditions contained
herein and intending to be legally bound hereby, the parties do mutually agree as follows:
PART A - DEFINITIONS. Unless the context specifically indicates otherwise, the
following terms and phrases, as used in this Agreement, shall have the meanings hereinafter
designated:
a) DEP shall mean the Pennsylvania Department of Environmental Protection or
its successors in authority.
b) EDU (equivalent dwelling unit) shall mean the unit of service by which a
charge or charges shall be imposed, as determined by this Agreement and any resolutions of the
Authority, which shall be deemed to constitute the equivalent amount of sanitary sewage
discharged by an average single family dwelling unit, as determined b '
y the Authority s engineer.
The number of EDU's required for Applicant's Project will be determined by the Authority,
based on estimated wastewater to be generated.
2
c) ENGINEER shall mean the person or organization duly employed by the
Authority as consultant and authorized to review, inspect, and comment on the information,
documentation and work associated with a request for approval of reservation of sewer capacity
by Applicant or its agents.
d) LAND DEVELOPMENT shall mean the improvement of lands for the
pta-pose of constructing buildings and any other associated support structures to include streets,
water and sewer mains.
e) PROJBCT DOCUMENTS shall mean MI detailed plans showing the sewer
collection facilities, specifications and permit applications for the proposed extension to the
sewage collection system of the Authority.
f) PERSON shall mean any individual, partnership, company, association,
society, trust, corporation or other group or entity, public or private.
g) PROJECT shall mcan a subdiviMml, land development or any other manner
of improvement to real ,estate being made or caused to be made by Applicant for the usc or uses
designated herein.
h) PROPERTY OWNER shall mean the owner of any improved or unimproved
lot or tract of land within the area to be served by the Authority which is not immediately
connected to the sewer system, but which could be connected to such system.
i) RECORD DRAWINGS shall mean drawings prepared in conformance with
the specifications showing the sewage extension facilities as constructed.
j) RF_~ERVED CAPACITY shall mean the volume of sewage capacity allocated
to and reserved by Applicant.
k) RESERVATION CHARGE means the initial fee the Authority has agreed to
accept and the Applicant, has agreed to pay in order to reserve the sewage capacity in favor of
the Applicant as more fully set forth herein.
1) RESERVATION RENTAL CHARGE means the quarterly fee the Authority
has agreed to accept and the Applicant has agreed to pay in order to reserve the sewage capacity
as more fully set forth herein.
m) SEWER EXTENSION shall mean a sanitary sewer main to be constructed by
Applicant at its own cost and expense and by its own contractors for connection into the existing
sewage collection system as per the terms of this Agreement.
n) SEWAGE SYSTEM or SEWER SYSTEM shall mean all sewers, all pumping
stations, all force mains, all sewage treatment works, and all other sewage facilities owned by,
leased to, and/or operated by tho Authority for the collection, transportation and treatment of
sanitary sewage and industrial waste, together with their appurtenances, and any additions,
extensions or improvements thereto. Said terms shall also include sewers within the Authority's
service area which serve one or more properties discharging into the sewer system even though
such sewers may not have boon constructed by the Authority and are not owned or maintained by
the Authority. It shall not include storm sewers or culverts which have been constxucted for the
sole purpose of carrying storm and surface nmoff, discharge for which is not and does not
become tributary to the sewage treatment facilities.
o) SPECIFICATIONS mean a detailed plan containing sewer system design
specifications and characteristic descriptions of all components and attxibutes of Applicant's
proposed sewer system extension and its couneetion to the existing sewer system.
p) TAPPING FEE means that particular fee as set forth in the Municipality
Authorities Act of 2001, Act of June 19, 2001, P.L. 287, as amended, 53 Pa. C.S.A. §5601 et
seq., and as set forth in the Authority's Resolution establishing said tapping fee.
q) USE shall moan the specific purpose for which Applicant's Project is
designated, arranged, intended or for which it is or may be occupied or maintained.
PART B - RESERVATION OF CAPACITY
1. Applicant desires to reserve and Authority hereby grants to Applicant sanitary sewage
capacity for 44 EDUs to construct the Project. For this reserved capacity, Applicant agrees to
pay a reservation charge of $28,732.00 or $653 per EDU upon execution of this Agreement.
This reservation shall continue until such time the capacity is used or this Agreement is
terminated as provided herein.
2. Applicant also agrees to pay a reservation rental charge for the 44 EDUs of $1,168.20
per quarter, or $4,672.80 per year, which was calculated based on 50% of the Borough's lowest
quarterly sewer rote of $$3.10 as of the date of this Agreement.
3. The above fees are based on eighteen (18) residences being constructed in Phase II,
and twenty-six (26) residences being constructed in Phase HI.
4. The rate for the reservation rental charge shall be subject to change at the Authofity's
sole discretion. In the event of such a reservation rental charge' rote change, the Authority shall
notify Applicant in writing of the change on the first quarterly billing following the adoption of
the Authority's resolution implementing such change.
5. This Agreement does not replace or eliminate any other fees that the Authority may
lawfully charge Applicant under the Municipality Authorities Act, as amended (hereinafter the
"Act").
6. (a) Applicant agrees to submit to the Authority for its review and approval by the
Engineer, specifications, plans and drawings for the Project and to pay $5,000.00 associated with
the Authority's review of the Project Documents and inspection of the sewer extension
construction and connections. Such money will be held in eecrow and will be used by the
4
Authority as such fees are incurred by the Authority for its cost of reviewing plans, construction
inspections, adm/nistrative, legal and engineering services. Any time the balance in the escrow
account falls below $1,000.00, the Authority will notify Appficant and Applicant shall add to the
escrow monies determined by the Authority to complete the Authority's review of the
specifications and plans, and inspection of the construction. Upon completion of the Project, any
balance remaining shall be refunded in full to Applicant.
Co) Schedule of rates for Authority, its Engineer and its solicitor for review of plans,
inspection of construction, administrative, legal, and engineering services:
1. Auth0rity's inspector ~ $15.61 per hour
2. Engineer
~ construction inspection - $32 - 35.00 per hour
b. construction coordinator - $51.00 per hour
c. professional engineer - $7g.00 per hour
3. Authority's solicitor - $70.00 per hour
7. The Authority reserves the right to inspect the ennslmction and testing of the sewer
extension and connections to the homes and such constxuction and testing shall be to the
approval of the Engineer. Financial ensts associated with the Authority's inspection and testing
shall be borne by the Applicant.
8. Applicant agrees and understands that a penalty of one and one-half percent (1.5%)
per month shall be added thirty 00) days aRer the date upon which a payment is due and remains
unpaid. Applicant further understands that the Authority shall not issue a sewer connection
permit where a payment is due and has remained unpaid for thirty (30) days.
9. Applicant understands and agrees that should any payment owed to the Authority be
due and remain unpaid for a period of over ninety (90) days, the Authority may enter a lien
pursuant to law against the real estate of Applicant for which such charges were unpaid. Further,
Applicant agrees and understands that the Authority, may cancel at its discretion, all or any
portion of the remaining reserve capacity of Applicant for which a payment shall be due and
remain unpaid for a period of over ninety (90) days.
10. Applicant may upon written application to the Authority cancel all or any portion of
the reserved capacity allocated to and reserved by it. Such cancellation shall be effective
providing that the application shall have been made at least fifteen (15) days prior thereto. There
will be no refund of previously paid reservation charges on said canceled reserved capacity.
Connection to the sewer system following applicable Authority procedures shall be considered
an automatic cancellation as to t/hat reservation of capacity so connected.
11. If the capacity reserved by Applicant should be determined to be insufficiem during
the term of this Agreement, it may request additional reserve capacity. Such request will be
processed as a new applioation requiring additional reserve capacity.
12. This Agreement is for a term of five (5) years from the date first executed. If after
five (5) years from the date that Applicant's first payment became due, Applicant is still in need
of and has not used all or any portion of the capacity originally reserved under this Agreement, it
shall make application to the Authority for continued reserve capacity, and shall be granted an
additional three-yeac extension of this Agreement provided it has complied with the terms of all
provisions of this Agreement. Said extension request shall be made in writing six (6) months
prior to the termination of this Agreement. Said extension shall not be unreasonably withheld.
13. Reserved capacity shall not be sold, transferred or assigned to any other pemon,
without thc express written approval of the Authority.
14. Applicant agrees and understands that the reserved capacity hereby allocated to and
reserved by it in the Authofity's sewer system is conditioned upon Applicant's use of the land
being that set forth in the Project Documents. Use of the propetW in any manner other than that
set forth in the Project Documents shall be considered a default under this Agreement. Should
Applicant, its representatives, sueeessom or assigns, wish to alter the use of the property from
that set forth in this Agreement, a written request to do so must be submitted to the Authority,
setting forth the proposed new use and the estimated capacity required for said use. Such
Application may be p~ as a now application.
15. This Agreememt shall temainate upon the occurrence of any of the following events:
(a) The total reserved capacity has been utilized or eomumed by Applicant.
(b) All unused reserved capacity has been canceled by Applicant for whom it was
reserved, or by the Authority as provided in this Agreement.
(c) A period of five (5) years shall have expired from the date of execution of this
Agreement, and Applicant has not received an additional three (3) year
extension.
(d) Applicant defaults as set forth hereunder.
16. Should Applicant default on any of its responsibilities and obligations set forth in any
part of this Agreement, including, but not limited to, timely payment of ail fees and costs
required by the Authority in any part of this Agreement, it shall no longer be entitled to the
reserved capacity allocated herein, and said reserved capacity, and any remaining unused portion
thereof, may be canceled at the Authority's discretion. In the event of any such default by
Applicant, the Authority may pursue, at its discretion, any and all remedies set forth in this
Agreement, and all other rights, claims, aetious or muse of action available to the Authority
under law or equity.
17(a). If for any reason the Authority is unable to provide all or any portion of the
capacity reserved by Applicant for a period of time, the Authority will so notify Applicant in
writing within sixty (60) days of the Authority becoming aware of such cimumstances. If the
Authority cannot provide the capacity reserved by Applicant on a permanent basis or for a period
of time in excess of six (6) months, the Authority will, upon written demand by Applicant, return
the reservation charges paid by it for the reserved capacity that the Authority is unable to
provide.
6
(b). If the Authority is unable to provide the capacity resen, ed by Applicant for a period
of less than six (6) months, Applicant may choose to continue to hold said reserved capacity until
the Authority is again able to provide the same. The Authority will notify Applicant in writing
when reserved capacity is again available. Should Applicant choose to cancel the capacity
reserved by it, it shall send the Authority written notice of its decision to do so and the applicable
provisions of Paragraph 10 shall apply.
(c). Applicant undomtands and agrees that the above provided refund and suspension of
reserved capacity shall be its only rec, our~e remedy for the Authority's inability to provide the
re~erved capacity allocated and reserved by it under this Agreement.
18. In the event'the DI~P ~hall cancel, revoke or stay the effectiveness of any permit for
any reason, or should it for any reason impose a ban on ~onneetions or extensions to the sanitary
sewer system, the Authority shall not aa a result then:of incur any liability of any nature to
Applicant who has been allocated reserve capacity unless said actions by the DEP were solely
due to the Authority's willful, wanton, and malieions conduct.
PART C- CONSTRIICTION AND DEDICATION OF SANITARy SEWER
SYSi'EM EXTENSION
1. Applicant, at its own coat and exl~uso will cau~ to be prepared by qualified
professional engia~ring personnel, ~pecifieations and drawings for the proposed extension to the
sewage collection syat~m oftbe Authority. The Project Docoments consisting of spesifieations
and drawings shall be reviewed by the Authority's Engineer. If required to secure approval of
the Authority, the Applicant will revise or amend the specifications and drawings. Upon receipt
by Applicant of all required approvals of such regulatory agencies as are required by law and
upon compliance by the Applicant with all applicable local ordinances and regulations, the
Applicant will notify the Authority. Applicant may not start work on the construction of the
extension until it is notified to do so by the Authority.
2. The Applicant shall hire, employ and pay its own contractor, contractors or
subcontractors to construct the ~xtension according to the aforesaid approved ~ifications and
plans, and the Authority shall have no responsibility or liability for payment of any pa~t of the
costs or expenses arising out of or relating to said eonmuction or the labor, materials, and
equipment used therein or thereon.
3. The Applicant at all times, shall indemnify and save harmless the Authority and
Engineer and all their officers, agents and employees, from all claims, liabilities, suits,
judgments, verdicts, actions or proceedings at law or equity of any kind whatsoever arising out
of, connected with or caused by any operation or matter in, of, or related to the sewer extension
which is the subject of this Agreement, including among other things, injury to property, and
injury to and sickness and death of each and every person or persons whatsoever, including
without limitation, members of the public and officers, agents and employees of the Applicant,
the Applicant's contractors, or sub-contractors. The Applicant shall, if required by the Authority
or Engineer, produce evidence of settlement of any such claim.s, suite, liabilities, judgments,
verdicts, suits, actions or proceedings, groundless or not, which may be commenced against the
Authority or Engineer or their officers, agents and employees, and the Applicant shall pay or
cause to be paid any and all judgments which may be secured in any such actions, claims,
liabilities, judgments, verdicts, proceedings or suits, and the Applicant shall defray or cause to be
· defrayed any and all expemes, including costs and attorney's fees, which may be incmTed in or
by mason of such actions, claim.% liabilities, judgments, verdicts, proceedings or suits. Such
defense and indemnification shall be provided by including the Authority and Engineer and all
.of their officers, agents and employees as additional insure& under the policies of the Applicant,
ats contractors and subcontractors which pertain to this Project. The Applicant and its contactor
shall be solely responsible for construction site safety, practices, supervision, direction of
personnel, use of oquipmcat and the means, methods and manner of construction employed by
the contractor.
The Applicant shall be required to include this Paragraph in all agreements or
contracts with its contractor, contractors, or sub-contractors.
4. During the course ofcoastrucfion, all raaterials, workmanship, compliance with the
approved plans shall be subject to the inspection of the Authority's F_aaginoer or an authorized
agent of the Authority. The Authority and Engineer will not perform or be re~onslble for any
hiring, firing, supervisi~ superintendence, direction of por~nnol, use of equipment,
construction site safety, safety programs or the direction of the manner or method of conslmcfiun
employed by the contractors, their sub-centractors, agents, servants or employees; nor will the
Authority or Engineer be liable for any matters or claims arising therefrom. The Authority and
Engineer shall be under no obligation or liability arising from the work of or injuries to the
contractors, their subcontractors, agents, servants or employees on said Project.
In the event the materials and/or workraanship are found by the Engineer or the
Authority to be in noncompliance with the previously described specifications and drawings, the
Authority will revoke its approval to proceed with construction. The Applicant hereby agrees to
immediately cease construction operations and replace and/or correct the noncompliant materials
and/or workmanship. The approval to proceed with construction will be reissued only upon
receipt of written procedures from the Applicant to prevent future noncompliant occurrences.
The Applicant shall also be responsible for compliance with inspection requirements of
applicable governmental agencies, utility companies and property owners in connection with the
construction. Upon completion of the construction of the extension and prior to individual
connections thereto, the Engineer for the Authority will certify the satisfactory completion
thereof to the Authority.
5. Upon completion of the extension, the Applicant shall notify the Authority in writing
that the extension has been completed and is ready for final inspection.
6. Upon completion of the extension, but not longer than sixty (60) days after
completion, the Applicant shall:
(a) Cause to bc prepared and furnished to the Authority, at the expense of the
Applicant, record drawings of the completed extension project as detailed in the
8
specilications and drawings. Record drawings shall be the same scale and plan size as
standard to the Authority.
(b) Cause to be prepared, executed, acknowledged and delivered to the Authority
ready for recording, at the sole expense of the Applicant, a deed of conveyance for the
said entire extension project, its pipes, manholes, and all of its appurtenances, as well as
all rights, libe~ies, and privileges appurtenant thereto including rights-of-way over the
streets and other thoroughfares and private lands nece~ary for the existence and furore
maintenance thereof.
7. The Applicant shall and doe~ hereby for a period of one year or longer if reqaired by
a permitting agency following the delivery of said deed of conveyance and acceptance by the
Authority, guarantee the said sewer system as to workmanship and materials, and shall furnish to
the Authority a maintenance security as described in Paragraph 9. Upon receipt and recording of
said deed of conveyance, the extension project and all parts and appurtanances therenf as above
described shall be, become, and i-~iiain the sole, absolute,, permanent property of the Authority
or its assigns free and clear of any lion, obligation, oth~r liability in favor of the Applicant, its
successors or assigns, its contractor or oontractora, ils and their laborers and materiahnen and any
of their creditors, or in favor of any other person or corporation, to the same end and effect as if
the Authority had constructed the extension project with its own labor and at its own expense.
Thereafter, tile Authority shall maintain, repair~ rebuild and otherwise act toward said extension
as its own property and its own cost and expense. Nothing heroin shall be construed to discharge
or dilute the contractual obligations of the contractor, contractors, or subcontractors of the
Applicant to guarantee their workmanship.
8. Prior to the Authority notifying the Applicant that work can begin on the project
hereof, the Applicant shall deliver to the Authority either:
(a) "Performance Bond" covering faithful and aati~faetory performance of the\
work herein de~eribod in an mount not less than one hundred ten (110) percent of the
construction costs; and a "Payment Bond" in an amount not less than one hundred ten
(110) percent of the construction costs coveting payment in full for all services (including
reasonable rentals of equipment for certain periods) rendered, materials furnished, and
labor supplied or performed. The above noted construction costs shall be based upon the
bona fido bids made on the project or an estimate prepared by the Authority's Engineer.
The same Surety must execute both Bonds. The Bonds shall be issued by a Surety
Company, authorized to transact business in the Commonwealth of Pennsylvania.
(b) Financial security to be in the form of cash, ceflified check, or irrecovable letter
of credit or restrictive or escrow aceoant in a Federal or commonwealth chartered lending
restitution authorized to enndust ~ueh business within the Commonwealth of
Pennsylvania. Such financial security for this project shall be in an amount of one
hundred ten (110) percent of the construction costs aa determined by the method specified
in (a) above.
The above funds shall be used to reimburse the Authority for all costs and expenses
incurred by it (as evidenced by itemized bills thereol), in enmpletion of the extension to the
Authority's sewage system in the event that:
(a) Applicant becomes insolvent before completing the extension; or
(b) Applicant does not complete the extension within twelve (12) months after the
Authority notifies the Applicant that work can begin; or
(c) Applicant fidis to pay any deficiency or pmjeeted deficiency occurring in the
escrow account within 30 days of said request of payment by the Authority.
As construction of the extension pmcecda, the Applieamt may request the Authority to
release, from time to time, such portions of the financial security necessary for payment
to the contractor, enntractors, or sub-contractors performing the work. Any such request
shall be in writing addressed to the Authority, and the Authority shall have forty-five
days, from receipt of such request, within which to allow the Authofity's En4gineer to
certify, in writing, to the Authority that sush portion of the work upon the project has
been completed in accordaneo with this Agreement. Upon such eerlifieation, the
Authority shall release or authorize release by the lending institution of au amount as
estimated by the Authority's Engineer which fairly represents the value of the project
completed. The Authority may, prior to final release at the time of completion and
certification by its Engineer, require retention of ten per eentum of the estimated cost of
the aforesaid extension.
9. With the deed of conveyance Applicant shall deliver to the Authority additional
financial security to se~u-e structural integrity of the project, as well as the functioning of the
project in accordance with this Agreement for a period of one (1) year or longer if required by a
pemaitting agency from the date of receipt of the deed of conveyance. Such financial security
shall be of the same type as set forth for the Payment Bond and Performance Bond. This
financial security shall be in the amount of fifieen per c/mann of the construction costs.
PARTD-MISCELLANEoUS
1. Nothing contained herein will relieve Applicant from complying with any applicable
requirements of any federal or state statue or regulation or ordinances of the Newville Borough
Water and Sewer Authority, or of the Rules and Regulations of the Authority or the rate
schedules of the Authority as amended from time to time. Applicant specifically agrees to
comply with all Authority roles, regulations, specifications, and rates presently in effect and as
amended or supplemented from time to time without notice to Applicant.
2. This Agreement may not be assigned by either pan'y without the prior written consent
of the other, except that the Authority without the consent of Applicant, may assign its rights, but
not its obligations, under this Agreement, to the trustee under any indenture and supplements
thereto securing such Authority bonds as may be outstanding from time to time.
10
3. All notices required under this Agreement sb~l be sent to an address provided to the
Authority by Applicant, and shall be deemed to have been given when mailed by certified mail
or delivered by hand.
4. The construction of this Agreemeat and the rights and remedies of the parties hereto,
shall be governed by the laws of the Commonwendth of Pennsylvania.
5. The Authority shall not issue a sewer cennection permit to or for the use of Applicant
until such time as all fees required under this Agreement and the Authority's Rules and
Regulations have been paid in full.
6. Unless otherwise provided heroin, no recourse on any obligation, covenant, or
agreement contained herein shaft be had again.~ any past, present, or future member, officer,
employee, engineer or counsel of the Authority. It is expressly agreed and understood that this
Agxvoment and the obligations hereunder are solely corporate obligations, and that no personal
liability whatsoever shall attach to or shall be incurred by any such meambers, officers, or
employees of the Authority by reason of any of the obligations, covenants, or agreements
contained in this Agreement.
7. No modification, amendment, change or addition to this Agreement shall be binding
on the parties unless reduced in writing and signed by their authorized representatives.
8. This greement contmns the enttre understanding between the parties and supersedes
any prior written or oral agreements between the parties respecting the within subject matter.
There are no representations, agreements, arrangements or understandings between the parties
hereto relating to the subject of this Agreement which are not fully expressed herein.
9. Ifauyterms or provisions or portions thereef of this Agreement or application therecf '
become invalid, ~he remainder of said tom or provision and/or portion thereof of this Agreement
shall not be affected thereby; and, to this end, tho pa~es hereto agree that the terms and
provisions of this Agreement are severable.
10. This Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute but one and the same
instrument.
11
BOROUGH OF NEWVILLE
CUMBERLAND COUNTY
BOROUGH OFFICE: 4 WF. STSTREET, NE~VVILLE, PENNSYLVANIA 17241
TELEPHONE (717) 776-7633 FAX (717) 776-9317
November 22, 2002
Mr. Norman J. Dellinger
Central State Realt~
15 State Avenue, Suite 103
Carlisle, PA 17013
Dear Mr. Dellinger:
This letter is to confn-m that the Newville Water and Sewer Authority at
their regular monthly meeting held on November 20, 2002, agreed to provide
reserve capacity to George Mallios and Dean Bear for the development of 44
new homes in the North Newton ]:Jills Subdivision, Phases II and III.
The Assistant Authority Solicitor Mr. Thompson, is presently in the
proeess of revising the necessary agreement and he will be forwarding the
agreement to you for your review and signing by the appropriate parties.
A copy of thi.~ correspondence will be forwarded to the North Newton
Township Board of Supervisors to confum that you have reached agreement
with the Newville Water and Sewer Authority to provide water and sewer
services to the proposed development.
Please contact me at 776-7633 should you have any further questions.
FOR THE. NEWVH .1 .~. WATER/LND
SEWER AUTHORITY
Sincerely yours,
~C: l~111~m ~aompsol~ ~quir~
Assr Authority ~olieitor
BOROUGH COUNCIL
Fred A. Potzer
Borough Manager
NEWVILLE WATER AND SEWER
ZONING HEARING BOARD
PLANNING COMMISSION
MAINTENANCE BUILDING WASTEWATER TREATMENT PLANT WATER pLANT
(717) 776-6601 , (717) 776-5633 (717) 776-6305
SALZMANN,
G. BRYAN SALZMANN. ESQ. ,/'
ST~W~ 1. FtSHiViA~, ESQ.
ANN F D~^Ut~, ESQ.
NOR~ J. BART~O. ESD.'
WILLI~ W. 'Iq4OMVSON. ESO.'
DEPAULIS & FISHMAN, P.C.
PAMEt~ R. KO~4LER
I. AU~J.
I~PLyTO~
Decenaber 19, 2002
VIA FACSIMILE (717) 243-! 330 and REGULAR Mu~IL
Norman Dellinger
Central State Realty
15 Stat~ Avenue
Carlisle, PA 17013
RE: North Newton Hills Subdivision Pha.~s II and/II
Dear Mr. Dellingor:
Please be advised that the Board for the Newville Water and Sewer Authority at its December 18, 2002
meeting by resolution adopted a Capital Charges Study for the Sewer System that updates the fee~ for
connecting to the Authority's sewer ~tstom. For one EDU (equivalent dwelling unit), the fees increased from
$653.00 to $1,041.00.
If the Sewer Agreement is not executed and the reservation charge of $28,732.00 is not received by the
Authority by its next m~ting on January 22, 2003, the Sower Agreement that was provided to you on
November 25 is void and Phases II and III will be subject to the fees adopted December 18, 2002.
Should you have any questions concerning this matter, please contact the Borough Manager, Mr. Fred
Porzer, at (717) 776-76_33.
By:
Very truly yours,
William W. Thompson, Esquire
WWT/lam
cc: Fred Potzer, Newville Water and Sewor Authority ~
CONCENTRATING IN I~IVIRONMENTAL, LAND USE, [3UsIIq ESS, REA1. ESTATE, AND MUNICIPAl.
WILLIAM C. KOU_AS
~S W. KOLLAS
LAW OFF/CES OF
KOLLAS AND KENNEDY
I 104 FERNWOOD AVENUE
CAMPHILL, PENNSYLVANIA 17011
January21, ~003
MARY KOIJ_AS KENNEDY'
'IELEPHONE NO. (717) 731-1600
FAX NO. (717) 731.1460
VIA FACSIMII,E ONLY
Fred Potzer
Newville Water and Sewer Authority
Newville, PA
RE: North Newton Subdivision - Phases H and III
Dear Mr. Potzer:
Please be advised that William C. Kollas, William C. Costopoulos and James C.
Costopoulos, owners of the remaining ground in North Newton Hills Subdivision Phases II and
III will exercise the reservation of the sewer capacity for North Newton Hills and will remit to
you the sum of $28,732.00 on or before January 28, 2003. In the interim, we will have a sewer
agreement executed by these gentlemen or their assigns and sent to you as well.
Very truly yours,
KOLLAS AND KENNEDY
William C. Kollas
WCK/deb
'Also Admitled to Maryland Bar
PAMELA R, KOHLER
BARBARA J. M(~JlOR
LAURI£ J. PO~TER
& FISHMAN_,__P.C.
RI~LY TO~ ~
455 PHOENIX DRIVE · SUITE A · CHA~BIiRSBURO, p^ 17~1
~17) 2652121 F~ ~ID 26~3
95 ~DER S~INO R~ SUI~ 3 · ~R~ PA 17013
' ~17) ~333 F~ (71D 24~73~
I~ N~ ~*SUI~ ~1 + ~R~RO, PA 17101
January 23, 2003
William C. Kollas, Esquire
Kollas and Kennedy
1104 Fernwood Avenue
Camp Hill, PA 17011
RE: North Newton Subdivision - Phases H and HI
Dear Mr. Kollas:
At last night's meeting of the Newville Water and Sewer Authority, the Board denied your request for
reservation of sewer capacity. Since the Sewer Agreement and reservation charge was not received by the
Authority by last night's meeting, the Sewer Agreement provided to you previously is void.
If you would like to enter into negotiations for a new agreement, please do not hesitate to contact me.
However, any agreement would be subject to the new rate of $3,166.00 per EDU.
Thank you for your interest.
GBS/Iam
cc: Norman Dellinge/
Fred Potzer
NWSA Board
By:
Very truly yours,
G. Bryan Salzmann, Esquir~
Solicitor for Newville Water and Sewer Authority
CONCENTRATING IN ENVIRONMENTAL, LAND USE, BUSINESS, REAL ESYATE, AND MUNICIPAL LAW
LAW OFFICES OF
KOLLASAND KENNEDY
1104 FERNWOOD AVENUE
CAMP HILL, PENNSYLVANIA 17011
January 28, 2003
OF COONSr_L
MARY KOI. I. AS KENNEDy
TELEPHONE NO. [717) 731-~600
FAX NO. (717) 731-14~0
G. Bryan Salzmann, Esquire
Salzmann, DePaulis & Fishman, P.C.
455 Phoenix Ddve, Suite A
Chambersburg, PA 17201
RE: North Newton Subdivision - Phase H and IH
Dear Mr. Salzmann:
I received your letter dated January 23, 2003, and discussed the same with my two joint
venturers in this project, William C. Costopoulus and James C. Costopoulos at a meeting we held
on January 28, 2003. We reviewed the contract for reservation of the sewer capacity prepared by
your office. We further reviewed your correspondence to Norm Dellinger dated December 19,
2002, and Fred Potzer's correspondence to Mr. Dellinger dated November 22, 2002, copies of
which are enclosed. We also discussed my correspondence to Fred Potzer dated January 21,
2003. Mx. Potzer advised both George Mallios and me that so long as we exercised' our option to
reserve the sewer capacity and paid the sum of money within seven (7) days or on or before
January 28, 2003, we would have complied with the Sewer Agreement which had been given to
Mr. Mallios. There were some errors in the Sewer Agreement that had to be corrected and the
Sewer Agreement was not executed.
However, we feel that based on the representations made to us and our exercise of the
reservation of the sewer capacity by facsimile dated January 2 I, that you are boUnd to honor your
commitment as set forth in your letter, to Norm Deilinger on December 19, 2002. You will note
in your letter of December 19, you told Mr. Dellinger that if there were any questions, Mr. Fred
Potzer should be contacted. That is exactly what we did, and we followed his instructions
thereafter. Hence, we are requesting that you honor your commitment as set forth in the Sewer
Agreement which your solicitor dralted, namely, a deposit in the amount of $28,732.00 for the
reservation of 44 F_-DUs and the quarterly payment of $1,168.20 thereafter until such time as other
users relieve us of this liability. As the users tap on, we will be relieved of the quarterly charge at
the rate of $53.10 per tap-on per quarter. The Agreement is in error in saying that there are 26
residences in Phase HI and 18 residences in Phase H. As a matter of fact, it is the reverse of that.
Phase II has 26 residences and Phase III has 18. It is our sincere hope that further action be not
necessary. However, be advised that we are prepared to pursue this matter legally if need be.
G. Bryan Salz~aarlll, Esquire
January 28, 2003
Page Two
/n the past, we have always cooperated with the Authority. We have struggled to make
this project work. We have represented to the Cumberland County Housing Authority that we
will have lots available for them in the future, and we anticipate fulfilliag this representation. We
are asking you to reconsider your position so that no further action will be necessary. If you
would be so kind to give us the courtesy of your action in this matter, we will then be able to
determine our course of action.
WCK/WCC/deb
Enclosures
Very truly yours,
W'flliam C. Kollas
William C. Costopoulos
BOROUGH OF NEWVILLE
CUMBERLAND COUNTY
BOROUGH OFFICE: 4 WEST STREET, NEWVILLE, PENNSYLVANIA 17241
TELEPHONE (717) 776-7633 FAX (717) 776-9317
February 21, 2003
William C. Kollas, Esquire
Kollas & Kennedy
1104 Ferawood Avenue
Camp Hill, PA 1701 1
RE: North Newton Hills Subdivi.~ic, n _ Phase ii and 111
Dear Mr. Kollas:
This correspondence is in response to your letters addressed to the Authority Solicitor, G.
Bryan Salzmann, Esquire dated January 28, 2003 and February I0, 2003. The Authority
perceived your letter dated January 28, 2003 a~ a potential throat of litigation concerning the
reservation of sewer capacity for the North Newton Hills Subdivision. The Authority took action
to stand on its previous decision concerning reserve sewer capacity for North Newton Hills for
numerous masons, including the following:
1. The request for sewer capacity was presented by Mr. Norm Dellinger and the
proposed draft Sewer Agreement was drafted between the Authority and Mr. George Mallios and
Mr. Dean Bear. Therefore, William C. Cestopoloua, James C. Costopolous and youmelf are
simply not parties to the agreement, nor did you or your "joint venturers" ever make the request
· um January z~, 21103 was incorrect m that the correspondence should not
have been forwarded to you, but should have been forwarded to the perSOns who made the
request Which were Mr. George MalliOs and Mr. Dean Bear.
2. The Authority stands by its decision to charge the tapping fee adopted by resolution in
January 2003 to apply to all persons making a n:a:luest for reserve sewer capacity. The Authority
believes that every applicant should be treated equally.
3. Mr. George Mallios and Mr. Dean Bear were clearly informed that the only method to
reserve sewer capacity was to provide an executed agnmment and full payment of the applicable
tapping fees, neither of which have ever been provided to the Authority. Thus, there is no
executed agmernent between the Authority and Mr, Mallies and Mr. Bear and no consideration
has ever been paid by Mr. Mallios and Mr. Bear.
BOROUGH COUNCIL
MAINTENANCE BUILDING
(717) 776-6601
WASTEWATER TREATMENT PLANT
(717) 776-5633
HEARING BOARD
WATER PLANT
(717) 776-6305
4. Between the December and January meetings of the Authority, you contacted the
Authority Manager Mr. Fred Potzer and notified Mr. Potzer that you had several changes that
would be required to the draft Sewer Agreement. Therefore, it is clear that the Ag~ement was
not acceptable in its form and thus, no contract has been or was entered into between the
Authority and Mr. Bear and Mr. Mallios. Furthermore, the time frame has simply passed
concerning thc dsaft agreement.
5. It is thc Authority's understanding that the Authority Manager Mr. Fred Pot'zer
discussed with'you thc potential for an extension of time between the Authority's December
meeting and January meeting. Mr. Potzer was not authorized by the Authority to grant any
extension of time as the Authority was quite clear in its motion concerning Mr. Bear and Mr.
Mallios' request for reserve capacity mandating that the Agreement be executed in its existing
form and consideration paid on or before the Authority's meeting in January.
6. The Authority believes it would be unfair and unjust to all other users on the system to
not apply the tapping fees adopted by the Authority at its meeting in January 2003. The
Authority has treated your threat of potential litigation as misplaced and seeking to be treated
differently from all other ratcpayers which is not in the best interest of the Authority nor is in the
best interest of all other users or potential users of the Authority's system.
Thank you for your kind attention to this matter. Any and all communications
concerning this matter should be forwarded directly to the Authority's Solicitor, G. Bryan
Salzmann, Esquire. With respect to your perceived threat of litigation, I sincerely hope that you
will reconsider your views based upon the above factors, however, if litigation is brought, the
Authority intends to vigorously defend the same.
Very truly yours,
Ncwville Water & Sewer Authority
cc.'
G. Bryan Salzmann, Esquire
NWSA Board Members
Fred Potzer, Authority Manager
~,/~/) //o-olyol (717) 776-5633 (717) 776-6305