HomeMy WebLinkAbout01-05997
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
GEORGE F. HEMPT and
GERALD L. HEMPT, Co-Executors of
the ESTATE OF MAX C. HEMPT,
Plaintiffs
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No. C> 1- .s'997
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THE CUMBERLAND VALLEY
SCHOOL DISTRICT,
Defendant
IN EQUITY
NOTICE
You have been sued in court. If you wish to defend aqainst the claims set forth in
the followinq paqes, you must take action within twenty (20) days after this complaint
and notice are served, by enterinq a written appearance personally or by attorney and
filinq in writinq with the court your defenses or objections to the claims set forth aqainst
you. You are warned that if you fail to do so the case may proceed without you and a
judqment may be entered aqainst 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. You
may lose money or property or other riqhts 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.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
2 Liberty Avenue
Carlisle, PA 17013
Phone 800-990-9108
McNEES WALLACE & NURICK LLC
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Lawrence R. Wieder
ID No. 16707
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5229
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Attorneys for Plaintiffs
George F. Hernpt and Gerald L.
Hempt, Co-Executors of the
Estate of Max C. Hempt
Dated: October J 5 ,2001
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
GEORGE F. HEMPT and
GERALD L. HEMPT, Co-Executors of
the ESTATE OF MAX C. HEMPT,
Plaintiffs
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No. 01- 5991
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THE CUMBERLAND VALLEY
SCHOOL DISTRICT,
Defendant
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IN EQUITY
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COMPLAINT
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AND NOW, come the Plaintiffs, George F. Hempt and Gerald L. Hempt, co-
executors of the Estate of Max C. Hempt, by their counsel, McNees, Wallace & Nurick
LLC, and file this Complaint in Equity and aver as follows:
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1. Plaintiffs are George F. Hempt and Gerald L. Hempt, co-executors of the
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Estate of Max C. Hempt (the "Hempts").
2. Defendant, Cumberland Valley School District ("Cumberland Valley") is a
municipal body, acting through its School Board, with administrative offices at 6746
Carlisle Pike, Mechanicsburg, Silver Spring Township, Pennsylvania, 17050-1796.
3. At all times relevant to this action, the Hempts were the owners of certain
real estate located along Route 11 in Silver Spring Twp, Cumberland County,
Pennsylvania.
4. Cumberland Valley operates an Educational Park directly across Route
11, from Plaintiff's property.
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5. The Educational Park consists of numerous schools, parking lots, athletic
areas and related facilities.
6. Prior to and during the calendar year 2000, Cumberland Valley planned
improvements to the High School located within the Educational Park.
7. As part of that planning process, Cumberland Valley caused studies to be
performed relative to increased storm water drainage, which would result from the
improvements.
8. In the course of planning those improvements, Cumberland Valley's
consulting engineers proposed to design certain storm water management facilities.
Among other things, those proposals contemplated that certain facilities of the
Education Park (including, for example, recreational fields), would also function as
storm water retention facilities, for the proper management of storm water.
9. In the Winter of 2000, representatives of Cumberland Valley approached
the Hempts and requested that the Hempts agree to permit the Educational Park to
discharge the additional storm water onto the Hempts' property, as an alternative or
supplement to on-site storm water facilities.
10. This relief requested by Cumberland Valley from the Hempts, if granted,
would permit the Educational Park to be more fully utilized, and would avoid the
burdens of locating more elaborate storm water management facilities without the
confines of the Educational Park.
11. The practical impact of the Cumberland Valley request, is to transfer the
burden, the cost and the risks and additional storm water flows (arising from new
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construction) from the Educational Park site to the adjoining and downhill property
owner, the Hempts.
12. Cumberland Valley proposed that storm water flows would be
concentrated into additional pipes, which would be placed under Route 11 and would
discharge onto the Hempts' land to the south.
13. That storm water would then flow across the Hempts' property and empty
into Hogestown Run, which abuts the Hempts' property.
14. The Hempts' property is used to breed and raise race horses, which
animals could be injured if water was to remain in the fields.
15. The additional storm water flow from the Educational Park requires
construction of various new facilities on the Hempts' land. Those additional facilities
include establishment of certain swails, regarding certain areas, and installation of a
certain culvert and other structures.
16. After numerous meetings, the parties reached an agreement, which was
memorialized as a Settlement Agreement (the "Agreement"). A true and correct copy of
that document is attached hereto as Exhibit "A". The Agreement set forth the parties'
commitments for the storm water facilities described above.
17. The Agreement was signed on or about June 15, 2000.
18. Once the Agreement was signed, Cumberland Valley proceeded with its
plan to improve the Educational Park.
19. Pursuant to the Agreement, Cumberland Valley caused new pipes to be
installed under Route 11, to channel, direct and concentrate the storm water flow,
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including additional flows from new construction in the Educational Park, onto the
Hempts' land.
20. Pursuant to the Agreement the Hempts deeded a portion of their property
to Silver Spring Township, to improve the intersection of Hempt Road and Route 11.
21. Pursuant to the Agreement, Cumberland Valley paid the Hempts $335,000
as consideration for various matters addressed in the Agreement..
22. With respect to planning, engineering and construction of the storm water
management facilities, paragraph 2(a)-(b) of the Agreement provides:
2. Hempt Farm Property.
a. CV will retain Derck & Edson Associates, LLP
to finalize the previously referenced preliminary design plan,
which mandates the installation of one or more concrete box
culverts to replace the Hempt Rd. Triple Culvert, so that the
flow of drainage from west to east under Hempt Rd. will be
improved to the greatest extent reasonably possible by
means of the concrete box culvert(s). CV will be responsible
for obtaining the requisite Township and governmental
approvals and permits, if any, necessary for the installation
of the concrete box culvert(s).
b. CV will retain Derck & Edson Associates, LLP
to finalize the previously referenced preliminary design plan,
which mandates the regrading of the main channel east of
the Hempt R. Triple Culvert to convey storm water drainage
to Hogestown Run at the access drive, all on the Hempt
Farm Property, by means of the reinstallation of the pipe(s)
from the Hempt Rd. Triple Culvert. The proposed culvert(s)
under the access drive will have an invert elevation of the
headwall of approximately 400.8 and an invert elevation at
the endwall of approximately 400.4. CV will be responsible
for obtaining the requisite Township and governmental
permits and approvals if necessary for the installation of the
drainage channel and the re-installation of the pipe from the
Hempt Rd. Triple Culvert, which will empty into the
Hogestown Run.
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23. On or about March 28, 2001, counsel for the Hempts communicated with
counsel for Cumberland Valley as to the status of work that it was required to perform
pursuant to paragraph 2 of the Agreement. A true and correct copy of the
correspondence is attached hereto as Exhibit "S".
24. No response was provided by Cumberland Valley's counsel.
25. In April of 2001, counsel for the Hempts again communicated with counsel
for Cumberland Valley as to the status of work that Cumberland Valley was to perform
pursuant to paragraph 2 of the Agreement, and particularly the obtaining of, all requisite
permits and approvals to permit work to proceed on the Hempts' property.
26. Again, no response was provided by counsel for Cumberland Valley.
27. On August 21,2001, counsel for the Hempts wrote to counsel for
Cumberland Valley requesting confirmation that Cumberland Valley was proceeding
with its obligations under the Agreement. A true and correct copy of that
correspondence is attached as Exhibit "C".
28. Again, no response was provided by counsel for Cumberland Valley.
29. Cumberland Valley has failed to perform its obligations under Paragraph 2
of the Agreement.
30. Cumberland Valley has received the benefits, if sought under the
Agreement, in that additional storm water will be channeled from its property and
concentrated and discharged onto the Hempts' property.
31. The Hempts have not received the benefits to which they were entitled,
under the Agreement, as the facilities to accommodate the increased volume of storm
water drainage cannot be constructed without needed permits and approvals.
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32. If the storm water is allowed to discharge into the fields of the Hempts'
property without construction of needed facilities, it will damage the Hempts, so that the
Hempts cannot utilize their property to breed and raise horses.
33. Without the planned storm water management facilities, the value of the
Hempts' property will be materially impaired by the additional storm water discharge
from Cumberland Valley's Educational Park.
COUNT I - SPECIFIC PERFORMANCE
34. Paragraphs 1-33 are incorporated herein by reference as if fully set forth.
35. Cumberland Valley has failed to meet its obligations to the Hempts under
the Agreement in that it has not:
a. Obtained "the requisite Township and governmental approvals and
permits, if any, necessary for the installation of the concrete box
culvert(s)" as required by 2a of the Agreement
b. Obtained "the requisite Township and governmental permits and
approvals if necessary for the installation of the drainage channel
and re-installation of the pipe from the Hempt Rd. Triple Culvert,
which will empty into the Hogestown Run." as required by 2b.
36. The Hempts have no adequate remedy at law for the failure of
Cumberland Valley to meet its obligations under the agreement.
WHEREFORE, the Hempts pray your Honorable Court enter an Order requiring
Cumberland Valley to specifically perform its obligations pursuant to the Agreement of
June 15, 2000.
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COUNT II - SPECIAL RELIEF
37. Paragraphs 1-36 are incorporated herein by reference as if fully set forth.
38. The Hempts did not consent under the Agreement to the discharge of
additional concentrated storm water from the Educational Park construction onto the
land, without having adequate facilities in place on Hempt land to convey that water to
Hogestown Run.
39. The Hempts cannot obtain those adequate facilities without prompt
performance by Cumberland Valley on its obligations under the Agreement.
40. The construction of the additional facilities of the Educational Park and the
discharge of additional, concentrated storm water onto the Hempts' lands constitutes,
under these circumstances, a nuisance which should be subject to injunctive relief until
abated by Cumberland Valley's completion of its agreed performance.
41. In the alternative, the construction of those facilities and the discharge of
additional, concentrated storm water onto the Hempts' lands, under these
circumstances, constitutes a physical trespass subject to injunctive relief until abated by
Cumberland Valley's completion of its agreed performance.
42. Under the circumstances, equitable relief should require Cumberland
Valley to provide complete and adequate storm water management facilities on its own
site, and not to concentrate and discharge storm water onto the Hempts' property.
43. Until such time as Cumberland Valley complies with its obligations under
the Agreement, it should be required to block the newly installed pipes under Route 11,
which are designed to carry storm water drainage from the Cumberland Valley property
to the Hempts' tract.
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WHEREFORE, the Hempts pray your Honorable Court enter its Order enjoining
Cumberland Valley from using the newly installed pipes under Route 11, for the
concentration and conduct of storm water drainage from the Cumberland Valley
property onto the Hempts' tract.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
By
Lawrence R. Wieder
ID No. 16707
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5229
Attorneys for Plaintiffs
George F. Hempt and Gerald L.
Hempt, Co-Executors of the
Estate of Max C. Hernpt
Dated: October 15 , 2001
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VERIFICATION
I, George F. Hempt 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 of 18 Pa.C.S. 94904,
relating to unsworn falsification to authorities.
Dated: October 1;< ,2001
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Settlement Agreement
THIS SETTLEMENT AGREEMENT, made and entered into this /5'J4day of June, 2000,
by and between CUMBERLAND VALLEY SCHOOL DISTRICT, a school district of the
Commonwealth of Pennsylvania, of Cumberland County, Pennsylvania ("CV") and THE ESTATE OF
MAX C. HEMPT, of York County, Pennsylvania ("Hempt").
RECITALS
A. CV currently has an educational park, including its high school and other facilities, on a
tract of approximately 133 acres located in Silver Spring Township, Cumberland County, Pennsylvania,
on the north side of U.S. Route II (the "CV Property").
B. CV is proposing to construct a new high school on the CV Property and has received a
conditional approval of a Final Land Development Plan from Silver Spring Township (the "Project").
C. Hempt is the owner of various tracts of land located in Silver Spring Township,
Cumberland County, Pennsylvania, including property on the south side of U.S. Route II, a state road,
across from the CV Property and west of the intersection of Hempt Road, a Township road, with U.S.
Route II (the "Hempt Rte. II Property"), and property located in the vicinity of Hogestown Run on the
east and west side of Hempt Road south of Route II, which includes farm operations (the "Hempt Farm
Property") .
D. As part of the Project, CV and Silver Spring Township (the "Township") have applied to
the Pennsylvania Department of Transportation ("P ADOT") for highway occupancy permits to relocate the
entrance to the CV Property to Rte. II to a point opposite the Hempt Road intersection with Rte. 11 (the
"Hempt Rd. Intersection") and to make improvements to the Hempt Rd. intersection for turning lanes (the
"PADOT HOP's").
E. P ADOT has issued a traffic signal permit to the Township for installation of a traffic signal
at the Hempt Rd. Intersection.
F. CV has opened construction bids for the Project and issued a Notice of Intent to A ward
to the various contractors for the Project.
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G. The design for the Hempt Rd. Intersection under the PADOT HOP's includes widening
of Hempt Rd. and the provision for additional right-of-way by easement from Hempt to Township.
H. Hempt has advised CV that it has concems about the increased stormwater drainage that the
Hempt properties could be receiving, after the Project is completed. Those concerns relate to the quantity,
quality and location of the stormwater drainage, which will flow onto the Hempt properties.
I. CV has represented to Hempt that the Project meets all stormwater management
requirements of Township Ordinances.
J. The Project redirects the majority of the CV stormwater drainage away from the Hempt Rte.
II Property..
K. Hempt has contested the issuance of the PADOT HOP's, and will not release PADOT from
liability for the installation of the new drainage pipe under Route II, unless its concerns regarding the
increased storm water drainage are resolved. In the event that the P ADOT issues the HOPs without the
agreement of lIempt, Hempt will legally challenge the issuance of the HOPs and seek to enjoin CV from
proceeding with the Project, until the matter is resolved administratively, and if necessary in the
Commonwealth Court.
L. If Hempt does not grant the additional right-of-way for the widening of Hempt Rd., the
only way Township can acquire the additional right-of-way is by condemnation.
M. Hempt has identified two existing drainage areas, which may be aggravated by the Project.
One is at the location of the three (3) corrugated metal pipes, which take drainage from a field west of and
under Hempt Rd. to a field east of Hempt Road (the "Hempt Rd. Triple Culvert"). The second is at the low
point of the access drive on the Hempt Farm Property just north of Hog est own Run.
N. CV has retained a consulting engineer ("Derck & Edson Associates, LLP"), which has
prepared a preliminary engineering design to replace the Hempt Rd. Triple Culvert with concrete box
culverts, regrade the area downstream ofthe Hempt Rd. Triple Culvert, and to reduce the flooding at the
access drive, by utilizing the pipe(s) from the Hempt Road Triple Culvert at that location. The design is
shown on drawings by Derck & Edson Associates, LLP, entitled Hempt Channel Improvements dated May
17, 2000, which are incorporated herein by reference.
O. Hempt has met with CV and its consulting engineers, reviewed the preliminary engineering
design, and determined the cost to complete the proposed work evidenced by the preliminary engineering
design.
P. CV and Hempt desire to settle the threatened litigation concerning the potential increased
stormwater drainage and to provide the additional right-of-way for the Hempt Rd. widening to the Township
by reaching an amicable resolution of the matter.
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NOW, THEREFORE, with the intent to be bound hereby, the parties hereto agree as follows:
1. Recitals. The Recitals set forth above are incorporated herein.
2. HemDt Farm Prooertv.
a. CV will retain Derck & Edson Associates, LLP to finalize the previously referenced
preliminary design plan, which mandates the installation of one or more concrete box
culverts to replace the Hempt Rd. Triple Culvert, so that the flow of drainage from west to
east under Hempt Rd. will be improved to the greatest extent reasonably possible by means
of the concrete box culvert(s). CV will be responsible for obtaining the requisite Township
and governmental approvals and permits, if any, necessary for the installation of the
concrete box culvert(s).
b. CV will retain Derck & Edson Associates, LLP to finalize the previously referenced
preliminary design plan, which mandates the regrading of the main channel east of the
Hempt Rd. Triple Culvert to convey stormwater drainage to Hogestown Run at the access
drive, all on the Hempt Farm Property, by means of the reinstallation of the pipe(s) from the
Hempt Rd. Triple Culvert. The proposed culvert(s) under the access drive will have an
invert elevation of the headwall of approximately 400.8 and an invert elevation at the
endwall of approximately 400.4. CV will be responsible for obtaining the requisite
Township and governmental permits and approvals if necessary for the installation of the
drainage channel and .the re-installation of the pipe from the Hempt Rd. Triple Culvert,
which will empty into the Hogestown Run.
c. Hempt will construct the aforementioned improvements in accordance with the final plans
prepared by Derek & Edson Associates, LLC, and all permits and approvals obtained for
those improvements.
3. Hempt Rd. Ril!ht-of-Way. Hempt agrees to sign and deliver, at no additional consideration from
CV or the Township, a deed of easement and a temporary construction easemen.t to the Township for the
additional right-of-way required along the western side of Hempt Rd. at the Hempt Rd. Intersection as
required in the PADOT HOP's for the widening of Hempt Rd. The widening of Hempt Rd. includes the
dismantling of the fence along the western side of Hempt Rd., the temporary installation of a fence during
construction, and the reinstallation of the fence along the new right-of-way. This work will be performed
by Hempt pursuant to. this settlement agreement at Hempt's expense and within the necessary time
constraints established under the CV construction contract to complete the work under the P ADOT HOP's.
A copy ofthe plan evidencing the required right-of-way which is to be conveyed to the Township, as well
as the area of the temporary construction easement, is attached hereto as Exhibit "A".
4. Settlement of HemDt Claims. Hempt agrees to cooperate in the application for the PADOT
HOP's and not to challenge the PADOT HOP's by an administrative appeal or other means, and to provide
a deed of easement and temporary construction easement for the additional right-of-way for Hempt Rd.
in consideration of the payment of Three hundred and thirty-five thousand dollars ($335,000) by CV to
Hempt.
5. SequenciDl! of Events Under Settlement.
a. Upon the execution of this Settlement Agreement by both parties, Hempt agrees to notify
PADOT that it does not object to the PADOT HOP's being issued without any conditions
concerning the drainage impact on the Hempt Rte. 11 Property or the Hempt Farm
Property .
b. Contemporaneously with the execution of this Settlement Agreement, Hempt agrees to
execute a deed of easement and a temporary construction easement to Township for the
additional right-of-way on the west side of Hernpt Rd. at the Hempt Rd. Intersection, in
accordance with Exhibit" A".
c. CV agrees. within forty-five (45) days after Hempt executes the deed of easement and the
temporary construction easement and the issuance of the PADOT HOP's without any
conditions concerning the drainage impact on the Hempt Rte. II Property or the Hempt
Farm Property, provided no appeals or challenges have been f1!ed by or on behalf of
Hempt, to pay Hempt Three hundred and thirty five thousand dollars ($335,000) as a part
of this settlement.
d. CV will have Derek & Edson Associates, LLP, diligently complete the fmal design as
outlined in paragraph 2 herein and diligently pursue all permits and approvals as outlined
herein.
e. Hempt agrees to complete the improvements, at Hempt's sole cost and expense, as outlined
herein at a future date after issuance of the permits and approvals necessary to complete
all the improvements, but within any time limits set forth in those permits and approvals.
In no event shall CV be required to undertake any of the improvements required by the
permits and approvals contemplated by this Agreement.
f. Upon approval of plans prepared pursuant to this Agreement and the issuance of any
permits required for the contemplated construction, CV shall have no further obligations
pertaining to said permitting and construction.
6. Water Ouality Manal!ement. CV agrees to engage a consultant to monitor the quality of the
stormwater drainage, which will be discharged from the CV Property. It is agreed that monitoring shall be
of the quality of the water as it is exists immediately prior to leaving the CV Property and entering the
right-of-way ofRte. II. This monitoring process shall continue as herein provided.
Within thirty days ofHempt signing this Settlement Agreement, the water quality consultant engaged
by CV shall collect the requisite water samples and furnish Hempt with a water quality report. That report
shall become the "base line", against which future samples are judged.
Thereafter, the consultant will collect water samples, once in the Spring and once in the Fall of each
calendar year, which collection shall be, if possible, during a storm event that is greater than 0.1 inches in
magnitude. CV may collect the samples if it can certify to the consultant that it collected the samples during
the first hour of the discharge. The consultant will have the water samples tested for volatile organic
compounds, hydrocarbon compounds, solvents, oil, grease and similar materials which might reasonably
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be expected to migrate from the cars, trucks and buses, which will be parked at the CV Property and which
materials are considered to be harmful to the animals, vegetation and/or crops on the Hempt properties. The
consultant shall provide copies of the reports to Hempt.
If a report indicates that the quality of the stormwater drainage has exceeded the range agreed to
by the parties, as established by the monitoring report from June, 2000, then CV will take two (2) additional
samples for the consultant, to determine if corrective action is needed to remediate the situation. CV will
be responsible for all costs involved in monitoring, testing and remediation, if needed, in complying with
the conditions of this portion ofthe Agreement entitled Water Quality Management.
Hempt reserves the right to employ its own consultant at its own cost and expense to monitor the
quality of the stormwater drainage. CV grants the consultant the right to enter upon its property once in the
Spring and once in the Fall of each calendar year to collect water samples for testing. Hempt's consultant
shall provide copies of the reports to CV.
The obligation to monitor the water quality shall remain until CV has gone five (5) consecutive years
after completion of the Project, without the necessity to remediate.
The obligation to remediate the water quality shall remain for as long as: (a) the portion of the
Hempt properties over which the CV stormwater drainage flows remains in agricultural or horse farm
usage; or (b) the CV Property remains in use as set forth in the Project.
7. Release CV and Hempt do hereby release, remise, quitclaim, and forever discharge each other,
their agents, employees, and board members, from all actions, suits, payments, accounts, reckonings,
claims and demands whatsoever, or of any other act, matter, cause or thing whatever, from the beginning
of the world to the day and date of these presents, including the Project and the threatened appeal of the
PADOT HOP's, subject to the continuing obligations of the parties to each other as set forth in this
Settlement Agreement.
8. Miscellaneous.
a. Notices. All notices, requests, demands, directions and other communications required
or permitted under the provisions of this Agreement, or otherwise with respect hereto,
shall be in writing and shall be: (i) mailed by first class registered or certified mail, return
receipt requested, postage prepaid; or (ii) sent by next day business courier (such as
Federal Express or the like); or (iii) personally delivered, as follows:
if to Cumberland Valley School District, to:
6746 Carlisle Pike
Mechanicsburg, PA 17055
Attn: District Superintendent
Johnson, Duffie, Stewart & Weidner
P. O. Box 109
Lemoyne, PA 17043-0109
Attn: Jerry R. Duffie, Esquire
If to Hempt,
Estate of Max C. Hempt
c/o Hempt Bros., Inc.
205 Creek Road
Camp Hill, PA l701l
Attn: George F. Hempt
With a copy:
If by U.S. Mail:
Eckert Seamans Cherin & Mellott, LLC
P. O. Box 1248
Harrisburg, PA 17108-1248
Attn: Ronald M. Lucas, Esquire
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McNees. Wallace & Nurick
P. O. Box 1166
Harrisburg, PA 17108-1166
Attn: Lawrence R. Wieder, Esquire
If by next day express courier or delivery service:
Eckert Seamans Cherin & Mellott, LLC
213 Market Street
Harrisburg, PA 17101
Attn: Ronald M. Lucas, Esquire
McNees, Wallace & Nurick
100 Pine Street
Harrisburg, PA 17101
Attn: Lawrence R. Wieder, Esquire
or to such other address(es) or to the attention of such other person(s) and officer(s) as the
addressee of any such notice shall have previously furnished to the sender in writing.
Each notice or .communication which shall be transmitted in the manner described above,
or which shall be delivered to a telegraph company, shall be deemed sufficiently given,
served, sent or received for all purposes at such time as it is sent to the addressee (with
return receipt, delivery receipt being deemed conclusive evidence of such mailing or
delivery), or at such time as delivery is refused by the addressee on presentation.
c. Governing Law. This Agreement has been negotiated and executed in Pennsylvania, and
it shall be construed and governed in accordance with the laws of the Commonwealth of
Pennsylvania, including its statutes of limitation but without application of conflict of laws
principles.
d. Entire Agreement. This Agreement constitutes the entire Agreement between the parties
and may not be changed, altered or modified except by an instrument in writing signed by
CV and Hempt; provided, however, that CV and Hempt will agree separately to the
standards and range for the water quality testing, as referenced in paragraph 6 herein.
e. Binding Effect. All of the terms of this Agreement, including but not limited to the
representations, warranties and covenants of CV and Hempt, shall be binding upon and
shall insure to the benefit of the parties to this Agreement and, as applicable, their
respective heirs, successors and assigns.
f. Partial Invalidity. If any term, provision, covenant or condition of this Agreement, or
any application thereof, should be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof shall continue in full force and
effect and shall in no way be affected, impaired or invalidated.
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g. Captions. The captions appearing at the commencement of the paragraphs hereof are
descriptive only and for convenience in reference to this Agreement and in no way
whatsoever define. limit or describe the scope or intent of this Agreement.
h. Counterparts. This Agreement may be executed in any number of counterparts, with
each such counterpart being deemed to be an original instrument.
1. Recording. This Agreement shall not be recorded in the Office of the Recorder of Deeds
or any other office or place of public record and if CV or Hempt shall record this
Agreement or cause the same to be recorded, the other party may, at its option, elect to
treat such as a breach by the recording party of this Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto cause tItis
Agreement to be executed as of the day first above written.
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CUMBERLAND V ALLEY SCHOOL DISTRICT
By: School Board
WITNESS/ATTEST:
By:
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(~ President
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WITNESS:
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DEED OF DEDICATION AND TEMPORARY CONSTRUCTION EASEMENT
MADE this / S-fl., day of " ~ / ,H. ,2000, by and between:
.
GEORGE F. HEMPT and GERALD 1. HEMPT, Co-Executors of the Estate and
under the Last Will and Testament of MAX C. HEMPT, Deceased, late of York
County, Pennsylvania parties of the first part, hereinafter called the "Grantors",
AND
TOWNSHIP OF SILVER SPRING, a municipal Township of the
Second-Class, situated in Cumberland County, Pennsylvania, party of
the second part, hereinafter called the "Grantee":
WITNESSETH:
WHEREAS, Grantee is in the process of widening a portion of Hempt Road, a public
road under its jurisdiction, located in the Township of Silver Spring in Cumberland County,
Pennsylvania;
WHEREAS, the Estate of Max C. Hempt (whose Executors are the Grantees herein) is
the owner of certain unimproved lands also located in said Township of Silver Spring along
which the proposed widening ofHempt Road will occur, including the installation of utilities and
related services, including but not limited to stormwater facilities, which includes, among other
things underground pipes and inlets;
WHEREAS, Grantee has requested Grantors to convey a right of way over portions of the
Estate of Max C. Hempt land to Grantee and provide a temporary construction easement in order
to accomplish the above recited road modifications and improvements, and Grantors desire to
accommodate Grantee by conveying a right of way over portions of the land and providing the
temporary construction easement hereinafter described for the purposes stated below;
NOW, THEREFORE, the said Grantors, for and in consideration of the sum of One and
No/J.OO ($1.00) Dollars in hand paid by Grantee to Grantors, receipt of which is hereby
acknowledged, have granted, bargained, sold, aliened, enfeoffed, released and confrrrned, and by
these presents do grant, bargain, sell, alien, enfeoff, release and confirm unto the Grantee, its
successors and assigns,
ALL that certain right of way over a tract or parcel ofland situated in the Township of
Silver Spring, County of Cumberland and Commonwealth of Pennsylvania, more particularly
bounded and described in accordance with a legal description attached hereto marked "Exhibit
A", and incorporated herein by reference thereto,
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. . AND for the purposes of a tem~orary construction easement to be used during the
wld~nmg of Hempt Road, all that certam tract or parcel of land situated in the Township of Silver
Spnng, County of Cumberland and Commonwealth of Pennsylvania, more particularly bounded
and described in accordance with a legal description attached hereto marked "Exhibit B", and
incorporated herein by reference thereto,
BEING a part of that certain larger premises which Daniel E. Lucas and Sarah E. Lucas,
his wife by their Deed dated December 4, 1940, recorded December 4, 1940, in the Office of the
Recorder of Deeds of Cumberland CoUnty, Pennsylvania, in Deed Book F, Volume G, Page 166,
granted and conveyed to Max C. Hempt. The said Max C. Hempt died on May 23, 1999, leaving
a Last Will and Testament, duly probated in the Office of the Register of Wills of York County,
Pennsylvania. Letters Testamentary were duly issued by said Register of Wills to George F.
Hempt and Gerald L. Hempt on June 9, 1999.
TO HA VB AND TO HOLD the said right of way over the tract or parcel ofland above
described unto the said Grantee, to and for the only use and behoof of said Grantee, its successors
and assigns forever, as and for public roads or highways, and the installation of utilities and
related serVices, including, but not limited to, sanitary and storm sewers, water mains, street lights,
electrical and gas service and cable television lines, etc.
AND, the said Grantors, for themselves, their heirs, personal representatives, successors
and assigns, by these presents covenant, promise and agree to and with the said Grantee, its
successors and assigns, that neither the Grantors nor their heirs, personal representatives,
successors or assigns, shall nor will at any time hereafter, ask, demand, or recover or receive of
and from said Grantee, its successors and assigns, any sum or sums of money as and for damages
for or by reason of the physical grading and construction of the widening ofHempt Road as now
or hereafter established or planned by said Grantee, its successors or assigns.
AND, the said Grantors, for themselves and their respective heirs, personal
representatives and successors, do covenant, promise and agree to and with said Grantee, its
successors and assigns, by these presents, that the Grantors have not done or committed any act,
matter or thing whatsoever whereby the premises hereby granted, or any part thereof, is, are,
. shall or may be impeached, charged or encumbered in title, or otherwise howsoever.
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IN WITNESS WHEREOF, the said Executors of the Estate of Max C. Hempt,
Deceased, Grantors herein, have caused these presents to be duly executed in their respective
individual and corporate capacities on the day and year first above written.
EST ATE OF MAX C. HEMPT, DECEASED
A /: /f5:l_
\V:rTNESS
(Seal)
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BY:. ~-;). (~1)
GE D L. HEMPT
(Seal)
Co-Executors under the Last Will and Testament
of Max C. Hempt, Deceased
COMlvlONWEALTH OF PENNSYL VANIA)
el : SS.
COUNTY OF 'l),,, "..,,) )
On this, the ,;') iJ.. day of ~' .lA il-' , 2000, before me, a Notary Public, in
and for the Commonwealth and Coun aforesaId, the understgned officer, personally appeared
GEORGE F. HEMPT, Co-Executor of the Estate and under the Last Will and Testament of Max
C. Hempt, deceased, known to me (or satisfactorily proven) to be the person qescribed in the
foregoing deed, and acknowledged that he/she executed the same in the capacity therein stated
and for the purposes therein contained.
. IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My Commis Ion bXplF1m'ARJAL SEAL
VELDA I. RICE, Notary Public
Harrisburg, PA Dauphin Counly
My Commission .Expires June 27, 2003
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COMMONWEALTH OF PENNSYL V ANlA)
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COUNTY OF . )
On this, the /-S'I::! day of 2000, before me, a Notary Public, in
and for the Commonwealth and Coun aforesaid, the undersigned officer, personally appeared
GERALD L. HEMPT, Co-Executor of the Estate and under the Last Will and Testament of Max
C. Hempt, deceased, known to me (or satisfactorily proven) to be the person described in the
foregoing deed, and acknowledged that helshe executed the same in the capacity therein stated
and for the purposes therein contained. .
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_cU- r&.~
Notary Public
My Commission Expir ..
NOTARiAl SEAl.
VELDA I. RICE, Notary Public
Harrisburg, PA Dauphin County
My Commission Expires June 27. 2003
CERTIFICATE OF RESIDENCE
I hereby certify that the precise residence and complete post office address of the within
named Grantee is 6475 Carlisle Pike, Mechanicsburg, P A 17055.
.2000
Township Solicitor
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LEGAL DESCRIPTION
DEDICATED RIGHT OF WAY FOR HEMPT ROAD
ACROSS LANDS OF MAX C. HEMPT
ALL that certain tract or parcel of land situate in Silver Spring Township, County
of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows:
COMMENCING from a point at the intersection of the existing centerline of
HemptRoad and the existing centerline of the Carlisle Pike (S.R. 0011) THENCE along
the existing centerline of Hempt Road South 20 degrees, 44 minutes, 01 seconds East, a
distance of 60.08 feet to a point at the easterly right of way line of the Carlisle Pike (S.R.
0011) (fonnerly L.R. 34); THENCE along said right of way line South 72 degrees, 15
minutes, 59 seconds West, a distance of 70.00 feet to a concrete monument in the
easterly right of way line of the Carlisle Pike (S.R. 0011) THENCE along the westerly
right of way line of Hempt Road South 70 degrees, 57 minutes, 22 seconds East, a
distance of 51.92 feet to a concrete monument, the POINT OF BEGINNING.
THENCE along the existing westerly legal right of way line of Hempt Road the
following four (4) courses: (I) South 70 degrees, 57 minutes, 22 seconds East, a distance
of 13.01 feet to a point; (2) North 69 'degrees, 15 minutes, 59 seconds East, a distance of
3.50 feet to a point; (3) South 20 degrees, 44 minutes, 01 seconds East, a distance of
520.53 feet to a point; (4) by a curve to the left having a radius of22,934.81 feet, an arc
length 379.24 feet, the chord of which is South 21 degrees, 12 minutes, 26 seconds East,
a distance of 379.23 feet to a point in the dedicated right of way line of Hempt Road;
THENCE along said right of way line following three (3) courses: (I) South 68 degrees,
19 minutes, 08 seconds West, a distance of \3.50 feet to a concrete monument; (2) by a
curve to the right having a radius of 22,948.31 feet, an arc length 379.46 feet, the chord
of which is North 21 degrees, 12 minutes, 26 seconds West, a distance of 379.46 feet to a
concrete monument; (3) North 20 degrees, 44 minutes, 01 seconds West, a distance of
528.85 feet to a concrete monument, the PLACE OF BEGINNING.
CONTAlNING: 12,190 Square Feet ofland.
Exhibit nA"
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LEGAL DESCRIPTION
TEMPORARY CONSTRUCTION EASEMENT
ACROSS LANDS OF MAX C. HEMPT
ALL that certain tract or parcel of land situate in Silver Spring Township, County
of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows;
COMMENCING from a point at the intersection of the exiSting centerline of
Hempt ROad and the existing centerline of the Carlisle Pike (S.R 0011) THENCE along
the existing centerline ofHempt Road South 20 degrees, 44 minutes, 01 seconds East, a
distance of 60.08 feet to a point at the easterly right of way line of the Carlisle Pike (S.R.
0011) (fonnerly L~R 34); THENCE along the easterly right otway line of the Carlisle
Pike (S.R 0011) South 72 degrees, 15 minutes, 59 seconds West, a distance of 70.00 feet
to a concrete monument in the easterly right of way line of the Carlisle Pike (S.R. 0011)
THENCE along the westerly dedicated right of way line of Hempt Road South 70
degrees, 57 minutes, 22 seconds East, a distance of 51.92 feet to a concrete monument,
the POINT OF BEGINNING. THENCE along the westerly dedicated right of way line
of Hempt Road and lands now or fonnerly. of Max C. Hempt South 20 degrees, 44
minutes, 01 seconds East, a distance of 300.37 feet to a point; THENCE ac,oss the lands
now or fonnerly of Max C. Hempt the following two (2) courses: (1) South 69 degrees,
15 minutes, 59 seconds West, a distance of 10.00 feet to a point; (2) North 20 degrees, 44
minutes, 01 seconds West, a distance of 308.70 feet to a point on the westerly dedicated
right of way line of Hempt Road; THENCE along the westerly dedicated right of way
line of Hempt Road and lands now or fonnerly of Max C. Hempt South 70 degrees, 57
minutes, 22 seconds East, a distance of 13.01 feet to a concrete monument, THE
;'PLACE OF BEGINNlNG.
CONTAINING: 3,045 Square Feet of Land
Exhibit "a"
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McNEES, WALLACE & NURICK
ATTORNEYS AT LAW
100 PINE STREET
P. O. BOX 1166
HARRISBURG. PA 17108-1166
TEI.EPHONE 17171232-8000
FAX 17171237 -5300
http://www.mwn.com
DEBRA P. FOURLAS
June 14,2000
DIRECT DIAL; (717) 237-5201
E-MAIL ADDRESS:DFOURLAS@MWN.COM
Keith Lupfer
SKELLY & LOY, INC.
2601 North Front Street
Harrisburg, PA 17101
VL4 FAX WITH
CONFIRMATION VIA
FIRST CLASS MAIL
Re: Water Testing on Lands of Max Hempt Estate
Dear Mr. Lupfer:
This office represents the Estate of Max C. Hempt in the matter of its pending agreement
with Cumberland Valley School District relating to storm water runoff from the District's land
onto the Estate's land. It is our understanding that the District intends to retain Skelly & Loy,
Inc. to perform the water quality monitoring activities on the Estate's land contemplated by that
agreement, including initial testing in the next thirty days to establish a base line for water
quality. Please be advised that the Estate has no objection to the District's retention of Skelly &
Loy, Inc. or to the performance of these services on the Estate's land by Skelly & Loy, Inc.
Please do not hesitate to call this office if you have any questions concerning this matter.
Very truly yours,
McNEES, WALLACE & NURICK
By
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Debra P. Fourlas
DPF/
cc:
George F. Hempt,./"
Ronald M. Lucas, Esquire
. COLUMBUS, OH
WASHINGTON. D.C. .
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McNEES, WALLACE & NURlCK
ATTORNEYS AT LAW
100 PINE STREET
P. O. BOX 1166
HARRISBURG. PA 17108-1166
TEl.EPHONE17171232.8000
FAX 17171237-5300
http://www.mwn.com
LAWRENCE R. WIEDER
DIRECT DiAl: (717) 237-5229
E-MAIL ADDRESS:LWlEDER@MWN.COM
March 28, 2001
Ronald M. Lucas, Esquire
STEVENS & LEE
P.O. Box 11670
Harrisburg, PA 17108-1670
RE: Hempt Farms
Cumberland Valley School District
Our File: 03644-0011
Dear Ron:
Congratulations and best wishes on your move. I assume that you took the Cumberland
Valley matter with you and hope that you know where the file is.
Would you kindly look at it and let me know where you stand on finalizing the project.
When we last met in December, Jim Wenger advised that he would be speaking with the
Conservation District concerning the work to be done in the drainage area. Thereafter,
assuming his conversations removed the cost issue, which we discussed, he would obtain the
requisite permits so that Hempt Bros. Inc. could proceed with Ihe work.
Very truly yours,
McNEES, WALLACE & NURICK
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Lawrence R. Wieder
LRW/jlh
c: Mr. George Hempt
Mr. Gerald Hempt
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McNEES WALLACE & NURlCK LLC
ATTORNEYS AT LAW
100 PINE STREET
P. O. BOX 1166
HARRISBURG, PA 17108-1166
TEI.EP,",ONEI7171232-8000
FAX 1717)237.5300
http://www.mwn.com
LAWRENCE R. WIEDER
DIRECT DiAl: (717) 237-5229
E-MAil ADDRESS:lWIEDER@MWN.COM
August 21, 2001
Ronald M. Lucas, Esquire
STEVENS & LEE
P.O. Box 11670
Harrisburg, PA 17108-1670
VIA FAX WITH
CONFIRMA TlON VIA
FIRST CLASS MAIL
RE: Hempt Farms
Cumberland Valley School District
Our File: 03644-0011
Dear Ron:
Would you please advise me of the status of the permits and approvals your client is
required to obtain for the work on the Hempt Farms tract, pursuant to the Agreement of June 15,
2000. Obviously, it is important to finish the project in the immediate future. Having not
received a response from my prior correspondence or telephone call, we are concerned that
your client is not honoring its obligations.
At the risk of sounding unduly apprehensive, if I do not receive positive feedback from
you by Tuesday, September 4, 2001, we will assume that your client has no intention of
following through with the terms of the written agreement. In that event, we will review our
options and follow the course which we deem most appropriate. Regardless of the course
chosen, your client will remain responsible for its obligations (or the costs thereof) as required
by the Agreement.
Very truly yours,
McNEES WALLACE & Nl:JRICK LLC
B
Lawrence R. Wieder
LRW/jlh
c: Mr. George Hempt (via fax)
Mr. Gerald Hempt (via fax)
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GEORGE F. HEMPT AND GERALD L.
HEMPT, CO-EXECUTORS OF TIIE
ESTATE OF MAX C. HEMP,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
IN EQUITY
VS.
THE CUMBERLAND V ALLEY SCHOOL
DISTRICT,
DOCKET NO. 01-5997 EQUITY TERM
Defendant
NOTICE TO PLEAD
TO: GEORGE F. HEMPT AND GERALD L. HEMPT, CO-EXECUTORS OF THE
ESTATE OF MAX C. HEMP, PLAINTIFFS
c/o Lawrence R. Wieder, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1066
Harrisburg, PA 17018c1166
You are hereby notified to file a written response to the enclosed New Matter
Date: January 25, 2002
within twenty (20) da)is from service hereof or a judgment may be entered against you.
/.-
STEVE~~ LJE ~
By J//{il nl D~
Rdnald M. Lucas, Esquire .
Supreme Court ill 18343
Mark D. Bradshaw, Esquire
Supreme Court ill 61975
P. O. Box 11670
Harrisburg, P A 17108-1670
(717) 561-5242
Attorneys for Defendant
SLl 233636vliDOOOD.DDD
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GEORGE F. HEMPT AND GERALD L.
HEMPT, CO-EXECUTORS OF THE
ESTATE OF MAX C. HEMP,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTy,
PENNSYLVANIA
Plaintiffs
IN EQUITY
vs.
THE CUMBERLAND V ALLEY SCHOOL
DISTRICT,
DOCKET NO. 01-5997 EQUITY TERM
Defendant
DEFENDANTS' ANSWER
TO PLAINTIFF'S COMPLAINT WITH NEW MATTER
NOW COMES Defendant, Cumberland Valley School District, by and through its
counsel, Stevens & Lee, and makes the following Answer with New Matter stating in support
thereof as follows:
1. Admitted.
2. Admitted.
3. Admitted in part and denied in part. Plaintiffs have represented to
Defendant at all times relevant to this action that Plaintiffs are the owners of the real estate;
however, Defendant has not done independent investigation in the real estate records of
Cumberland County to verify these representations.
4. Admitted.
5. Admitted.
6. Admitted with clarification. The planning for improvements to the High
School commenced in 1996 and the plans were completed by 1999.
7. Admitted with clarification. Cumberland Valley caused stormwater
management studies to be completed in order to comply with Silver Spring Township regulations
1
SLl 233636v1l00oo0.000
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concerning stormwater runoff. The improvements were designed so that the rate of runoff from
Defendant's property was no greater after development than prior to development in accordance
with Silver Spring Township regulations and the Stormwater Management Act of 1978.
8. Admitted in part, denied in part. It is admitted that Defendant's consulting
engineers designed stormwater management facilities to comply with Silver Spring Township
regulations; however, at no time were stormwater retention facilities ever designed. Stormwater
detention facilities were designed and primarily do not serve any other function such as for
recreational fields.
9. Denied. It is specifically denied that representatives of Defendant
approached Plaintiffs requesting the discharging of additional stormwater onto Plaintiffs'
property as an alternate to on site stormwater management facilities. As early as 1998,
representatives of Defendant contacted the Plaintiffs and at no time did Defendant propose to not
manage all stormwater on Defendant's property.
10. Denied. It is specifically denied that Defendant requested that the
Educational Park be more fully utilized and avoid the burden of locating more elaborate
stormwater management facilities on Defendant's property. In fact, the stormwater management
facilities comply with the Township regulations and manage all stormwater on the property. No
waivers or modifications were granted by the Township from those regulations.
11. Denied. It is specifically denied that the impact of Defendant's project
transferred the burden, cost and risk onto the Plaintiffs. By way of further answer, the existing
condition prior to 2000 had all stormwater runoff flowing from Defendant's property under
Route 11 and directly onto property of Plaintiffs. The plan completed as of 1999 proposed to
divert approximately 80% of the runoff away from the existing pipe discharging under Route 11,
2
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east of Hempt Road and onto property of others, not Plaintiffs. This plan was approved by the
Township and constructed by Defendant.
12. Denied. By way of further answer, Defendant incorporates by reference
the answer to paragraph 11.
13. Denied. Approximately 80% of the stormwater runoff from Defendant's
property is directed onto properties of others, not Plaintiffs. By way of further answer, the
answer to paragraph 11 is incorporated herein by reference.
14. Admitted in part and denied in part. It is admitted that Plaintiffs' property
is used to breed and raise race horses which Plaintiffs have continually done during and after
completion of construction. After reasonable investigation, Defendant is without knowledge as
to whether animals could be injured if water was to remain in the fields.
15. Denied. The design of the stormwater management facilities on
Defendant's property did not require construction of any facilities on Plaintiffs' property. The
Defendant's plans were approved and such approval was not challenged or appealed by
Plaintiffs.
16. Admitted.
17. Admitted.
18. Admitted.
19. Denied. While it is admitted that Defendant caused new pipes to be
installed under Route 11, those pipes directed approximately 80% of Defendant's stormwater
runoff away from the property of Plaintiffs and onto lands of other property owners east of
Hempt Road. By way of further answer, the Settlement Agreement attached to Plaintiffs' own
Complaint specifically restates in Recital J: "The Project redirects the majority of the CV
stormwater drainage away from the Hempt Rte 11 Property."
3
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20. Admitted with clarification. It is admitted that Plaintiffs conveyed a Deed
of Easement to the Township for additional right-of-way to improve the intersection of Hempt
Road and Route II.
21. Admitted.
22. Admitted.
23. Admitted.
24. Denied. It is denied that no response was provided. To the contrary
verbal communication was provided to Plaintiffs' counsel.
25. Denied. After reasonable investigation, Defendant is without knowledge
or information as to paragraph 25.
26. Denied. After reasonable investigation, Defendant is without knowledge
or information as to paragraph 26.
27. Denied. After reasonable investigation, Defendant is without knowledge
or information as to paragraph 27.
28. Denied. After reasonable investigation, Defendant is without knowledge
or information as to paragraph 28.
29. Denied. This is a legal conclusion which requires no responsive pleading.
To the extent any responsive pleading is deemed required, Defendant has continued to perform
its obligations under Paragraph 2 of the Agreement by finalizing the preliminary design plan and
meeting with Plaintiffs in attempting to having all plans completed. However, Plaintiffs must
sign applications to the Cumberland County Conservation District and to Silver Spring Township
as landowner and the one who will be performing the work under the permits. Defendant cannot
proceed further without Plaintiffs signing the applications. Thus, Plaintiffs have created and are
now perpetuating the very delay of which they complain.
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30. Denied. Both Plaintiffs and Defendant have received benefits under the
Settlement Agreement; however, at no time was additional stormwater channeled from
Defendant's property and concentrated and discharged onto Plaintiffs' property either by design
or by construction. Defendant incorporates by reference its answer to paragraphs 11 and 19.
31. Denied. Plaintiffs have received the payment of $335,000 provided for
under the Agreement, and can obtain the permits necessary to do the construction upon signing
the applications and proceeding with the construction. It is denied that the facilities called for in
the Agreement are required to accommodate the stormwater from Defendant's property.
32. Denied. Plaintiffs are currently utilizing the fields to breed and raise
horses and have continuously done so since 2000 to the best of Defendant's knowledge during
and after the completion of construction.
33. Denied. After reasonable investigation, Defendant is without knowledge
or information as to paragraph 33.
COUNT I - SPECIFIC PERFORMANCE
34. Defendant incorporates by reference its responsive averments to
paragraphs 1-33 as though set forth in full herein.
35. Denied. This is a legal conclusion which requires no responsive pleading.
To the extent any responsive pleading is deemed required, Defendant has done everything it can
do to obtain the permits and approvals, and is awaiting the Plaintiffs to sign the applications and
acceptance of the permits.
36. Denied. This is a legal conclusion and requires no responsive pleading.
WHEREFORE, Defendant Cumberland Valley School District respectfully
requests that Plaintiffs' Complaint be dismissed.
5
SLl 233636vl/OOOOO,ODO
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COUNT II - SPECIAL RELIEF
37. Defendant incorporates by reference its responsive averments to
paragraphs 1-36 as though set forth in full herein.
38. Denied. It is denied that concentrated stormwater from Defendant's
property is discharged onto land of Plaintiffs. The design and construction diverted
approximately 80% of the stormwater runoff from Plaintiffs' property to lands of others east of
Hempt Road. By way of further answer, it is denied that any additional facilities are needed to
be constructed on property of Plaintiffs in order to comply with the stormwater management
facilities on Defendant's property. Defendant incorporates by reference its answers to paragraphs
11 and 19.
39. Denied. It is denied that adequate facilities are needed on the property of
Plaintiffs. By way of further answer, Defendant has performed its obligations and is awaiting
Plaintiffs' signature on applications and permits.
40. Denied. The averments of paragraph 40 constitutes legal conclusions and
require no responsive pleading.
41. Denied. The averments of paragraph 41 constitute legal conclusions and
require no responsive pleading.
42. Denied. The averments of paragraph 42 constitute legal conclusions and
require no responsive pleading. To the extent any responsive pleading is deemed required,
Defendant has designed and constructed adequate stormwater management facilities on its own
property as approved by Silver Spring Township. By way of further answer, Defendant's
stormwater management facilities do not concentrate and discharge stormwater onto Plaintiffs'
property.
6
SLl 233636vllOOOOO.OOO
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43. Denied. The newly installed pipes under Route 11 are designed and in
fact do carry stormwater drainage from Defendant's property unto property of others east of
Hempt Road. Before those pipes were constructed, all stormwater went under Route 11 and
directly onto property of Plaintiffs. Defendant has complied with the obligations under the
Agreement and can complete those obligations once Plaintiffs signs the applications and permits
for the approvals.
WHEREFORE, Defendant Cumberland Valley School District respectfully
requests that Plaintiffs' Complaint be dismissed and further requests declaratory relief in its favor
and against Plaintiffs.
NEW MATTER
1. Defendant, Cumberland Valley School District, designed stormwater
management facilities in full compliance with the regulations of Silver Spring Township and the
Stormwater Management Act of 1978. There were no waivers or modifications granted by
Silver Spring Township from those regulations and Plaintiffs did not challenge or appeal the
approvals granted by Silver Spring Township to Defendant.
2. Stormwater management facilities designed and constructed by Defendant,
Cumberland Valley School District, manage all stormwater on Defendant's property in full
compliance with Silver Spring Township regulations and the Stormwater Management Act of
1978.
3. The stormwater management facilities designed and constructed by
Defendant, Cumberland Valley School District, divert approximately 80% of the stormwater
which was flowing onto Plaintiffs' property from a preexisting pipe under Route 11 to property
of others east of Hempt Road.
7
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4. The stormwater management facilities design and constructed by
Defendant, Cumberland Valley School District, did not require the construction of any facilities
on properties of Plaintiffs.
5. The construction of improvements to existing culverts under Hempt Road
carrying stormwater from the property of Plaintiffs west of Hempt Road to property of Plaintiffs
east of Hempt Road, to other property of Plaintiffs east of Hempt Road, were required under the
Settlement Agreement but were not required to comply with the stormwater management
regulations of Silver Spring Township or the Stormwater Management Act of 1978.
6. Defendant, Cumberland Valley School District, has completed the design
of the facilities called for under the Settlement Agreement and the approvals and permits can be
obtained once Plaintiffs sign the applications and provide the guarantees necessary for the
construction to be done by Plaintiffs.
7. Plaintiffs have continued to use their property since construction of the
stormwater management facilities on Defendant's property have been completed.
WHEREFORE, Defendant Cumberland Valley School District respectfully
requests that this Court enter an order:
1. Requiring Plaintiffs to sign all applications and permits with the
Cumberland County Conservation District and Silver Spring Township;
2. Requiring Plaintiffs to post any performance bond or surveillance escrow
required by Silver Spring Township to insure for the completion of the work;
3. Recognizing that Defendant, Cumberland Valley School District, has
complied with all requirements under the Settlement Agreement.
8
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Cumberland V alley School District also requests such other further relief as this
Honorable Court deems just.
Respectfully submitted,
STEVENY& LEE ( /.
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Ronald M. Lucas, Esquire
Supreme Court ID 18343
Mark D. Bradshaw, Esquire
Supreme Court ID 61975
P. O. Box 11670
Harrisburg, PA 17108-1670
(717) 561-5242
Attorneys for Defendant
Dated: H h- ;;3 ,2002
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VERIFICATION
I, MICHAEL M. WILLIS, verify that I am the Director of Facilities for
Cumberland Valley School District, Defendant in the within action and that the attached Answer
to Plaintiffs' Complaint with New Matter is based upon the facts of which I have personal
knowledge or information furnished to me by counsel; that the language of the document is that
of counsel and not my own; and that the facts set forth in the foregoing document are true and
correct to the best of my knowledge, information and belief. I understand that the statements
herein are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to
authorities.
JL
Date: IjiJ,5/0-:2-..
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CERTIFICATE OF SERVICE
I, RONALD M. LUCAS, ESQUIRE, certify that on this date, I served a certified
true and correct copy of the foregoing Defendants' Answer To Plaintiffs Complaint With New
Matter upon the following counsel of record, by depositing the same in the United States mail,
postage prepaid, addressed as follows:
Lawrence R. Wieder, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1066
Harrisburg, P A
170.&;-1.. 6 {ck"'-
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Date: January 25, 2002
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
GEORGE F. HEMPT and
GERALD L. HEMPT, Co-Executors of
the ESTATE OF MAX C. HEMPT,
Plaintiffs
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v.
No. 01-5997 Equity Term
THE CUMBERLAND VALLEY
SCHOOL DISTRICT,
Defendant
IN EQUITY
REPLY TO NEW MATTER
1. Admitted in part and denied in part. It is admitted that Plaintiffs did not
challenge or appeal the approvals granted by Silver Spring Township to Defendant. It is
denied that Defendant designed stormwater management facilities in full compliance
with the regulations of Silver Spring Township and the Stormwater Management Act of
1978 and that no waivers or modifications were granted by Silver Spring Township as
after reasonable investigation, Plaintiffs are without knowledge sufficient to form a belief
as to the truth of the averment. Accordingly, that portion of the averment is denied.
2. Denied. It is denied that the stormwater management facilities designed
and constructed by Defendant, manage all stormwater on Defendant's property in full
compliance with Silver Spring Township regulations and the Stormwater Management
Act of 1978 as after reasonable investigation, Plaintiffs are without knowledge sufficient
to form a belief as to the truth of the averment. Accordingly, the averment is denied.
3. Denied. It is denied that the stormwater management facilities designed
and constructed by the Defendant, diverts approximately 80% of the stormwater which
was flowing onto Plaintiff property from a preexisting pipe under Route 11 to property of
others east of Hempt Road as after reasonable investigation, Plaintiffs are without
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knowledge sufficient to form a belief as to the truth of the averment. Accordingly, the
averment is denied.
4. Denied. The stormwater management facilities designed and constructed
by Defendant required the construction of facilities on Plaintiff's property. Were that not
the case, Defendant would not have paid Plaintiffs $335,000 for remediation to their
property, made necessary by the improvements made to Defendant's property.
5. Admitted with qualification. It is admitted that the construction of the
improvements to existing culverts under Hempt Road carrying stormwater from the
property of Plaintiffs west of Hempt Road to property of Plaintiffs east of Hempt Road, to
other property of Plaintiffs east of Hempt Road, were required under the Settlement
However, the construction of the improvements were necessitated by the stormwater
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Agreement but were not required to comply with the stormwater management
regulations of Silver Spring Township or the Stormwater Management Act of 1978.
generated by Defendant. Defendant could not have complied with the referenced laws
and regulations, if it did not remove the stormwater from its property. In order to remove
the stormwater from its property, it paid Plaintiff to accept the water. That payment
contemplated improvements on Plaintiffs property to enable Plaintiff to continue to use
its property as it had previously. Those improvements were required because of the
improvements made to Defendants property.
6. Admitted with qualification. It is admitted that in late January of 2002, the
Defendant completed the design of the facilities called for under the Settlement
Agreement; accordingly, the approvals and permits can be obtained once Plaintiffs sign
the applications and provide the guarantees necessary for the construction to be done
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by Plaintiff. However, the Settlement Agreement requires that Defendant "will be
responsible for obtaining the requisite Township and other governmental approvals and
permits, if any, necessary for the installation of the concrete box culvert(s). "Plaintiff
cannot obtain the necessary approvals and permit without the posting of a bond and the
payment of other fees. Defendant refuses to comply with the portion of the Settlement
Agreement.
7. Admitted. Plaintiffs' concern is that weather which typically appears in late
Winter or early Spring will severely impact the use of its property.
WHEREFORE, Plaintiffs pray your Honorable Court enter an Order enjoining the
Cumberland Valley School District from using the newly installed pipes under Route 11,
for the concentration and conduct of stormwater drainage from the its property onto the
Hempt's tract.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
B~~ '
Lawrence R. Wieder
ID No. 16707
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5229
Attorneys for Plaintiffs
George F.Hempt and Gerald L.
Hempt, Co-Executors of the
Estate of Max C. Hempt
Dated: February ~ 5 , 2002
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VERIFICATION
I, George F. Hempt 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 of 18 Pa.C.S. 94904,
relating to unsworn falsification to authorities.
Dated: February:<a.. ,2002
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CERTIFICATE OF SERVICE
AND NOW, on this 2ff.~d'ay of February, 2002, I hereby certify that I have served a
true and correct copy of the within document, via first class mail postage paid as follows:
Ronald M. Lucas, Esquire
STEVENS & LEE
P.O. Box 11670
Harrisburg, PA 17108-1670
McNEES WALLACE & NURICK LLC
~
Lawrence R. Wieder, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Phone: 717237-5229
Attorneys for George F. Hempt and
Gerald L. Hempt, Co-Executors
of the Estate of Max C. Hempt
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-05997 P
;;'9,
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HEMPT GEORGE F ET AL
VS
COMB VALLEY SCHOOL DISTRICT
DOUGLAS DONS EN
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY
was served upon
CUMBERLAND VALLEY SCHOOL DISTRICT THE
the
DEFENDANT
, at 1100:00 HOURS, on the 22nd day of October
2001
at 6746 CARLISLE PIKE
MECHANICSBURG, PA 17050-1796
by handing to
ANTHONY J COLISTRA
SUPERINTENDENT
a true and attested copy of COMPLAINT - EQUITY
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
5.20
.00
10.00
.00
33.20
So Answers:
~~~~<~~
R. Thomas Kline
me this 31>>
day of
10/23/2001
MCNEES WALLACE NURICK
BY:WGL-
Deputy Sheriff
Sworn and Subscribed to before
0a;:L J-IM/
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Prothonotary
A.D.
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GEORGE F. HEMPT and
GERALD L. HEMPT, Co-Executors of
the ESTATE OF MAX C. HEMPT,
Plaintiffs
vs
Case No,
01-5997 Equity Term
THE CUMBERLAND VALLEY
SCHOOL DISTRICT,
Defendant
Statement ofIntention to Proceed
To the Court:
Plaintiffs
intends to proceed with the above captioned matter.
Print Name Lawrence R. Wieder, Esq. Sign Name ? r-- .---J--.A--
McNees Wallace & Nurick LLC
100 Pine St., Harrisburg PA 17108-1166
Date: 10-14-05 Attorney for Plaintiffs
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the tennination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
1. Rule of civil Procedure
New Rule of Civil Procedure 230,2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules,
This rule was promulgated in response to the decision of the Supreme Court in Sbop v, Eagle, 551 Pa. 360,710 A,2d
11 04 (998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901,"
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure, The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable,
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230( d) for relief from the order of termination, An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action, If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a show in to the court that the petition was promptly filed - and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently oftermination under Rule 230,2,
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CERTIFICATE OF SERVICE
AND NOW, on this l"f(Jay of October, 2005, I hereby certify that I have served a
true and correct copy of the within document, via first class mail postage paid as follows:
Ronald M. Lucas, Esquire
STEVENS & LEE
P.O. Box 11670
Harrisburg, PA 17108-1670
McNEES WALLACE & NURICK LLC
BY~
Lawrence R. Wieder, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Phone: 717237-5229
Attorneys for George F. Hempt and
Gerald L. Hempt, Co-Executors
of the Estate of Max C. Hempt
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