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Home My WebLink About03-5591 RODA& NAST, P.C. Joseph F. Roda, Esquire Atty. J.D. No. 20615 Jennifer S. Snyder, Esquire Atty. J.D. No. 89495 801 Estelle Drive Lancaster, PA 17601 (717) 892-3000 BOROUGH OF CAMP HILL, ATTORNEYS FOR PLAINTIFF, Borough of Camp Hill Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA DOCKET NO. en. 5'..5'9/ twY CIVIL ACTION-LAW v. BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the forgoing pages, you must take action within twenty (20) days after this Complaint in Divorce 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 reliefrequested by the 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone No. (717) 249-3166 96715,]]0113/03 A VISO USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderso de las quejas expuestas en las paginas siguientes, debe tamar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona 0 par abogado y presentar en la Corte par escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede porceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacion par cualquier dinero reclamado en la demanda 0 par cualquier otra queja 0 compensacion reclamados par el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIERDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone No. (717) 249-3166 96715./10/23/03 19 RODA & NAST, P.C. Joseph F. Roda, Esquire Atty. LD. No. 20615 Jennifer S. Snyder, Esquire Atty. LD. No. 89495 801 Estelle Drive Lancaster, PA 17601 (717) 892-3000 BOROUGH OF CAMP HILL, ATTORNEYS FOR PLAINTIFF, Borough of Camp Hill Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. DOCKET NO. BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, CIVIL ACTION-LAW Defendants : JURY TRIAL DEMANDED COMPLAINT The Parties 1. Plaintiff Borough of Camp Hill ("Camp Hill") is a municipal corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 2145 Walnut Street, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant The Municipal Authority of the Borough of Lemoyne ("Authority") is a Pennsylvania municipal authority organized under the Municipal Authorities Act of 1945, as amended, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania. 967/5./10/23/03 3. Defendant Borough of Lemoyne ("Lemoyne") is a municipal corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania. 4. Authority and Lemoyne are hereinafter collectively referred to as "Defendants. " 5. Defendants own and operate a raw sewage and wastewater treatment plant, as well as pumping stations and pumping facilities, for raw sewage and wastewater collected within the Borough of Camp Hill, the Borough of Lemoyne and the Borough ofWormleysburg. The 1969 Wastewater Treatment Al!reement 6. On or about November 11, 1969, Plaintiff and Defendants entered into a written agreement ("the 1969 Agreement") (Exhibit "A" hereto), calling for Camp Hill and Lemoyne to build a wastewater treatment plant ("Plant") for raw wastewater produced by their communities, and to share equally the initial cost of construction and all operating costs. 7. The 1969 Agreement defines "operating costs" as "only those costs directly attributable to [the] operation of the treatment plant," and further provides that operating costs "shall not include administrative, maintenance or other costs attributable to either [Authority's] or [Camp Hill's] existing or future wastewater collection systems." 96715.11O/13/0J 2 8. Under the 1969 Agreement, the parties agreed that if the Plant required modification, or if it became necessary to increase the efficiency of the Plant, capital expenditures for the improvements would be equally apportioned between the parties. 9. Under the 1969 Agreement, Defendants also agreed that they would not enter into any new or additional agreements for the receipt, treatment and disposal of sewage from any other municipality or municipalities that would impair Defendants' ability and obligation to receive and treat Plaintiffs sewage in the manner and amounts provided for in the Agreement. Amendments to 1969 Water Agreement 10. On or about August 8. 1972, the parties entered into an Amended Agreement for the Treatment of Wastewater ("1972 Amended Agreement") (Exhibit "B" hereto) for the construction of a new sewage treatment facility with increased capacity. With the exception of the details for the construction of a new facility, all other provisions of the 1969 Agreement, including but not limited to the parties' agreement to share operating costs equally, remained in full force and effect. 11. On or about November 2, 1983, the parties entered into an "Agreement Relating to Pumping Station" ("1983 Agreement") (Exhibit "e" hereto) for the construction of another treatment facility with increased capacity. All other provisions of the 1969 and 1972 Agreements remained in full force and effect, including but not limited to the parties' agreement to share the operating costs equally. 96715.1]0/33/03 3 12. On or about April 3, 1985, the parties entered into an "Amended Agreement Relating to Pumping Station" ("1985 Agreement") (Exhibit "D" hereto), which replaced the construction aspects of the 1983 Agreement. All other provisions of the 1969 and 1972 Agreements remained in full force and effect. The Events Giving Rise to This Case 13. On or about April 4, 2001, Plaintiffs Assistant Borough Manager, Timothy Maro, received a copy of minutes from the Authority's April 4, 2001 board meeting. The minutes said that while the Motor Control Center ("MCC") for the Plant was undergoing repairs, a "temporary power service [would] have to be provided to the highway department while the new MCC [was] being installed, since the power to the highway dept. [was] fed through the MCC at the Plant." 14. On or about May 2,2001, Mr. Maro similarly received a copy of the minutes from the Authority's May 2, 2001 board meeting, which said inter alia: "It has been noted that any expenses associated with providing power to the Highway shed during the panel replacement will be paid by Lemoyne and not shared with Camp Hill." 15. Because of the above minutes, Plaintiff asked Defendant Lemoyne for financial information during the summer of 2001, including but not limited to copies of Lemoyne's annual budget. Plaintiff did not receive this information, however, until September 2001. 96715.110113103 4 16. Thereafter, on November 21, 2001, Mr. Maro sent a written request to Lemoyne asking it to explain why electricity and water service to its highway garage was being tapped into the Plant with no separate meter. 17. Lemoyne responded to Mr. Maro by letter of January 7,2002, denying that Lemoyne had improperly charged Plaintiff for any amount. 18. On January 31, 2002, however, Lemoyne sent a second letter to Plaintiff. this time acknowledging that it had improperly charged Plaintiff for services associated with the Plant. 19. Plaintiff thereafter met with Defendants on March 25,2002, at which time Defendants represented that there were separate meters for the Plant's water and electricity. 20. Mr. Maro thus asked in that meeting to inspect the invoices from Pennsylvania Power and Light and Pennsylvania-American Water Company, but Defendants refused that request, and when Plaintiff asked what Defendants intended to do about overcharges for previous years, Defendants simply said, "We're not going to talk about that." 21. In the same meeting, Mr. Maro also asked to inspect the metering system at the Plant, and on April 3, 2002 Mr. Maro went to the Plant with Plaintiff's sewer department foreman to do so. Upon their arrival, Mr. Maro and Plaintiffs foreman were shown two devices that Defendants said were the separate water and electric meters for the Plant. 96715./10/23/03 5 22. On August 23, 2002, however, Mr. Maro again inspected the meters at the Plant, this time with Plaintiffs engineer, and discovered that new water and electric meters had been installed since his visit of April 3. Shortly thereafter, on or about September 5, 2002, the electrical contractor who installed the new meters told Mr. Maro that Defendants had instructed him to install those meters at the Plant "ASAP," shortly after Maro's April 3, 2002 visit to the Plant. 23. Plaintiff thereafter asked to audit Defendants' records for the Plant, but Defendants refused this request, and continued to represent to Plaintiff, up to October 15, 2002, that an audit was not necessary and that Plaintiff had been properly charged its share of the operating costs. 24. On or about October 28, 2002, Defendants sent Plaintiffs invoices for Plant services for January through October 2002, and in response to these. Plaintiffs Borough Manager advised Defendants that Plaintiff would escrow future payments otherwise due under the 1969 Agreement, as amended, until Defendants provided Plaintiff with a proper accounting and allowed Plaintiffs accountant to audit Defendants' financial records. 25. On or about November 13, 2002, Defendants finally agreed to allow Plaintiffto inspect their financial records, and Plaintiff began its audit of Defendants' records for the Plant on or about November 13, 2002. Defendants did not give Plaintiff unfettered access to Plant records. however, and Plaintiff could not do more than a preliminary audit, which was not substantially completed until March 25, 2003. That audit has shown that Defendants regularly overcharged 967/5_110/23103 6 Plaintiff for plant expenses, possibly beginning in 1969, as described in more detail below. Overcharges of Salary and Related Benefits and Taxes 26. Defendants' financial records show that between 1992 and 2001, Defendants either overbilled or improperly charged Plaintiff $277,448 for salaries, benefits and payroll taxes, by improperly charging to the Plant: a) the salary of Lemoyne's secretary, who does no work for the plant; b) the full salary of Lemoyne Plant Manager Jack O'Neil, who also serves as Lemoyne's health inspector and oversees Lemoyne's Sewer Collection System; and c) employee benefits and payroll taxes not properly attributable to the plant. 27. Based on Plaintiffs investigation, Plaintiff believes that Defendants also overcharged Plaintiff, in an amount yet to be determined, for salaries and related benefits and taxes for years before 1992, possibly beginning in 1969. Overcharge for Private Waste Haulers Disposal Costs 28. Upon information and belief, between 1992 and 2001 private waste haulers paid Defendants $859,556 to accept and treat septic waste at the Plant, which waste is heavily concentrated and significantly more costly to treat than regular sewage. 29. Plaintiff has never received any share of the funds paid to Defendants by private waste haulers, nor have Defendants used any of the proceeds received from private waste haulers to reduce Plaintiffs costs. 967/5./10/23103 7 30. Defendants' acceptance of septic waste from private haulers was never disclosed to Plaintiff, even though the extra cost of treating this waste was passed to Plaintiff through the monthly billings for the Plant. 3!. Defendants' records show that between 1992 and 2001, Defendants charged Plaintiff $128,798 for sludge disposal and hauling costs related to the septic waste from private waste haulers. 32. The additional cost to treat the septic waste is difficult to define without a detailed analysis of the facility's operation, since the cost would include a share of overall operating costs such as labor, chemicals, electricity, screening and testing, as well as wear and tear on machinery, equipment, etc., and Defendants have failed to provide Plaintiff with this information despite repeated requests from Plaintiff. 33. Based on Plaintiffs investigation, Plaintiff believes that Defendants also overcharged Plaintiff, in an amount yet to be determined, for sludge disposal costs related to private waste haulers for years before 1992, and during those years never shared with Plaintiff any of the funds paid to Defendants by the private waste haulers or used any of those funds to reduce Plaintiffs costs. Overcharlle For Electricitv 34. Before February 2002, Lemoyne's public works building was on the same electrical meter as the Plant, and Defendants charged all of the electric bills to the Plant, with half of that amount billed to Plaintiff. 96'115.110/23/03 8 35. To determine the amount of electricity costs overcharged to the Plant, Plaintiff compared kilowatt-hours used during the first ten months of 2002, after Defendants' new meter was installed in February 2002, with bills for the first 10 months of 2001. The 2002 bills reflected a decrease of 8.1565% from 2001, and if this percentage represents the overcharge to Plaintiff, and the same percentage overcharge was made between 1992 and 2001, Defendants overcharged Plaintiff $48,648.50 during these years for electric service to the Plant. 36. Based on Plaintiffs investigation, Plaintiff believes that Defendants have also overcharged Plaintiff, in an amount yet to be determined, for electric service for years before 1992, possibly beginning in 1969. Accountinl! and Audit Charl!es 37. Defendants charged to the Plant all audit costs for the Sewer Fund, even though this included costs for Lemoyne's own audits. 38. Despite repeated and numerous requests for copies of Lemoyne's annual audits, Defendants did not provide Plaintiff with the same until February and March 2003, and because of this, Plaintiff believes and therefore avers that it should not be responsible for any costs associated with audits before February 2003. 39. Defendants have charged Plaintiff $13,650 for audits and accounting between 1992 and 2001. 40. Based on Plaintiffs investigation, Plaintiff believes and therefore avers that Defendants have also overcharged Plaintiff. in an amount yet to be determined, for audits and accounting before 1992, possibly beginning in 1969. 96715./10/13103 9 Overcharges for Vehicle Related Costs 41. Defendants charged to the Plant all insurance premiums on the Collection System Flusher Truck and three vehicles that the Plant shares with Lemoyne's Sewer Collection system to the Plant, and in turn billed half of those costs to Plaintiff. 42. In at least some years, Defendants also did not credit Plaintiff with refunds of insurance premiums previously billed to Plaintiff. 43. Defendants also charged to the Plant all fuel costs for the Plant's Collection Flusher Truck and three vehicles that the Plant shares with Lemoyne, and billed half of those costs to Plaintiff. 44. Upon information and belief, Defendants have overcharged Plaintiff $12,034.73 between 1992 and 2001 for vehicle insurance and fuel costs. 45. Based on Plaintiffs investigation, Plaintiff believes that Defendants have also overcharged Plaintiff, in an amount yet to be determined, for vehicle insurance and fuel costs for years before 1992, possibly beginning in 1969. Communication Expenses 46. Lemoyne identified an overcharge to Plaintiff of $1,440 for communication charges billed in 2001, and communicated this to Plaintiff in a letter of January 31, 2002 from Lemoyne's Borough Manager to Plaintiffs Borough Manager. 47. The percent overcharge for 2001 was calculated and found to be 47.899%. <)6lJ5,!JOIJ3/03 10 48. Based on the 2001 percent overcharge, Plaintiff believes and therefore avers that the projected overcharge for communication charges from 1992 to 2001 has been $12,887.90. 49. Based on Plaintiffs investigation, Plaintiff believes that Defendants have also overcharged Plaintiff, in an amount yet to be determined, for communications charges for years before 1992, possibly beginning in 1969. Postage Expenses 50. Between 1992 and 2001, Plaintiff believes and therefore avers that Defendants have overcharged Plaintiff $4,170.45 for postage expenses. 51. Plaintiff believes and therefore avers that Defendants have only one postage account for the Sewer Fund. and that the full balance on that account has been passed off as a Plant expense even though the postage on that account has been primarily used for collection system billings, and not for the Plant. Thus, Plaintiff believes and therefore avers that all ofthe postage charged to the Plant should be considered an overcharge. 52. Based on Plaintiffs investigation, Plaintiff believes that Defendants have also overcharged Plaintiff, in an amount yet to be determined, for postage charges before 1992, possibly beginning in 1969. Water Expenses 53. Before 2002, Lemoyne's public works building had no separate meter for water and electricity. 96115.110/13/03 11 54. Plaintiff believes that Defendants have overcharged Plaintiff for water usage, in the same percentage (8.15656%) that Defendants have overcharged Plaintiff for electricity. 55. Based on this, between 1992 and 2001, Plaintiff believes that it was overcharged $11,943.63 for water usage. 56. Based on Plaintiffs investigation, Plaintiff believes that Defendants also overcharged Plaintiff, in an amount yet to be determined, for water usage for years before 1992, possibly beginning in 1969. Preliminary Results of Audit 57. Despite Plaintiff's repeated and numerous requests for the additional information it needs to complete its audit, Defendants have failed to provide this. 58. Based on the information that Defendants have provided to date, however, as reflected above, Plaintiff has determined that between 1992 and 2001, Defendants overcharged Plaintiff $810,564 for Plant operating costs, not including inflation or interest. 59. Based on its investigation, Plaintiff believes and therefore avers that Defendants have also overcharged Plaintiff for Plant operating costs, in an amount yet to be determined, for years before 1992, and that Defendants have overcharged Plaintiff a total amount substantially in excess of $1,000,000. COUNT I (Breach of Contract) 60. Plaintiff incorporates by reference the averments set forth in all preceding paragraphs. 96715./10/:13103 12 61. Under the terms of the 1969 Agreement, as amended, only those operating costs "directly attributable to [the] operation of the treatment plant" are to be apportioned between the parties on a 50-50 basis. 62. Under the terms of the 1969 Agreement, as amended, administrative, maintenance and other costs attributable to either Defendant's existing, or future, wastewater systems, are not to be charged to Plaintiff. 63. Defendants have improperly assessed Plaintiff for charges not directly attributable to the operation of the Plant. 64. Defendants have improperly assessed Plaintiff charges for matters wholly unrelated to the operation and maintenance of the Plant. 65. Defendants have refused and continue to refuse to provide Plaintiff with a proper accounting of all charges allegedly incurred by Plaintiff, in direct breach of the 1969 Agreement, as amended. 66. Defendants have refused to allow Plaintiffs accountant unfettered access to financial documents relating to the Plant, in breach of the 1969 Agreement, as amended. 67. By improperly assessing Plaintiff charges for matters wholly unrelated to the operation of the Plant, Defendants have materially breached the 1969 Agreement, as amended. 68. As a direct and proximate result of Defendants' breaches, Plaintiff has incurred monetary damages substantially in excess of $1,000,000. 967/5./]0/J3/03 13 WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants, jointly and severally, in an amount in excess of $1,000,000, together with interest, counsel fees and costs, and such other relief as is proper and just. COUNT II (Uniust Enrichment) 69. Plaintiff incorporates by reference the averments set forth in all preceding paragraphs. 70. Upon information and belief, Defendants have improperly charged Plaintiff for services, salaries and other costs wholly unrelated to the operation and maintenance of the Plant, and have thereby gained an unjust benefit at Plaintiffs expense. 71. Defendants have further gained an unjust benefit at Plaintiffs expense by charging 50% of costs for the treatment and disposal of septic waste transported from private haulers, without sharing the revenue paid by those haulers. 72. It would be inequitable for Defendants to retain these benefits that Defendants should be ordered to account for and return those benefits to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants, jointly and severally, in an amount in excess of $1,000,000, together with interest, counsel fees and costs and such other relief as is proper and just. COUNT III (Promissorv Estoppel) 967/5./10/23/03 14 73. Plaintiff incorporates by reference the averments set forth in all preceding paragraphs. 74. Defendants misled Plaintiff by representing that separate meters would be installed at the Plant, when Defendants had no intention of installing separate meters. 75. Defendants misled Plaintiff when they presented invoices for monthly operating costs that purportedly represented Plaintiffs one-half share ofthe operating costs for Plaintiffs use of the Plant. 76. Plaintiff reasonably relied to its detriment upon Defendants' misrepresentations when Plaintiff agreed to pay the full amount of Defendants' InVOIces. 77. As a direct and proximate result of Defendants' actions, Plaintiff has suffered the money damages averred above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants, jointly and severally, and direct Defendants to: (a) provide wastewater treatment services in conformity with their promises to Plaintiff; (b) conduct a comprehensive audit of all expenses and charges assigned to the Plant and sanitary sewer operation and administration; (c) pay compensatory damages to Plaintiff in an amount of at least $1,000,000, along with counsel fees, costs and interest; and (d) provide Plaintiff all such other relief as the Court deems proper and just. 96715_110/13/03 15 COUNT IV (Nee:lie:ent Misrepresentation) 78. Plaintiff incorporates by reference the averments set forth in all preceding paragraphs. 79. Defendants have made material representations of fact to Plaintiff, to wit: (a) that separate water and electric meters were in place; and (b) that Plaintiff was only being assessed for its share of costs directly related to the operation and maintenance of the Plant. 80. Upon information and belief, Defendants did not install a separate water and electric meter at the Plant until February 2002. 81. Defendants knew or should have known that Defendants were improperly invoicing Plaintifffor charges wholly unrelated to the operating of the Plant. 82. Defendants made their misrepresentations with the intention of having Plaintiff act and rely on them. 83. Defendants knew or should have known that Plaintiff was relying on Defendants' misrepresentations. 84. Defendants knew or should have known that Plaintiff was relying on Defendants to provide truthful and accurate billing statements for operating charges directly related to the operation and maintenance of the Plant. 85. Plaintiff acted in justifiable reliance upon Defendants' misrepresentations. 967/5.'10/23/03 16 86. As a direct and proximate result of Defendants' negligent misrepresentations, Plaintiff has incurred the damages averred above. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants, jointly and severally, in an amount in excess of $1,000,000, together with interest, counsel fees and costs, and such other relief as is proper and just. Respectfully submitted, ~ F. RODA . No. 20615 JENNIFER S. SNYDER Atty. LD. No. 89495 RODA & NAST, P.C. 801 Estelle Drive Lancaster, PA 17601 (717) 892-3000 Attorneys for Plaintiff DATED: October 23 , 2003 96715./fO/23/03 17 VERIFICATION Edward J. Knittel, Camp Hill Borough Manager, does hereby state that the averments of fact in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. -' DATED: October 23,2003 VERIFICATION Christine Rathbun, Borough Council President, does hereby state that the averments of fact in the foregoing Complaint are true and correct to the best of her knowledge, information and belief, and are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. ~J CHRISTINE RATHBUN Borough Council President DATED: October 23, 2003 "'l " ./~)LC\....'''~ .), ~ I I'll.) .' '\ i\:";:~E!.::ii;i':T FUR "IiiI: 'f1~I;:\'!':.il;lrr OF 1;:t\::;TEl'.rATJ::~ AGI~cU~IENr I::adc this /1"(2 or" ~~YE'A?t5c-e.. day p.:J 1 !J6Cl, by ~nu bcn;;;";! ',HE 1,l.];'IICII'AL AUTdtli:rry UF 'filE IlOlWlJL11 OF Li:~,::)YNl:, Ol'I:::ni~cu anu existin;; u::dcr :.n.: subject to 1:n.: Municipal Authoritie~ Act of l~45, as amcndcu, hcreinaftcr refi.:!'l'ed to ,,~ "(llm.:r",' and thc UOROUGIl OF WMOYNI:, a municipal corpora tion organi~eu :lllU existing untlt.::" antI subject to thu l~u...s of the CO!ilmorHvoca.l tIt of Penns}'lv:'llii:1J hc::~- inaftcr rl:fc~.r~u to u.S "Lessee", A~rD The UOIWUGll OF CAMP IIILL, a municipal corporation organized and existin!; uncler and su llj ec 1: to the lal'S of the COI;u;loll\'ea1t1l of Pennsylvania, hereinafter refcrreu to as "Uorough". 1';'IT:-JESSETIl WHEREAS, "OI\11er" ha$ conStructed anu holds title to a "a~tel':lter co11eo1:1on systet:l and I,':lstetater treatment plant locater.! ;ithin the Dorough of Lemoyne, CUr.lberland County, Pennsylvania; anu II'HEREi\S, "Ol\nar" has leased the \'astel.ater collection system and treatJ:l<:nt plant ., to tile "Lessee" for operation anti maintcnance; anu III!EI:Ui\S, "llorough" desires to connect its .1<aStcI,,,,ter collection.~ystcm to the \.astCl<ater collection system anu \,astewater treatment plant of "O\'ner"; and 1':HEi< CAS , it is more fcasible and economical for tile "llorough" to connect its cxisting wastcI,ater collection system onto the existing "astel~atcr COllection -" '~ -1- "\ $r:;t~l:1 allJ l"~l::itC\.:aCt.:I" ti"~:;1ti:"::f1: pL:u1t 0:' chI.: 111;\l:llJr"; :ll1d \;IIU:I:A:i, it i:. :::LJn: fca:;iiJl(,; ;wd ct,;Ul1u::Ilc.:al LlJ!' tlt~ IItlh'n...:r" loll iH.;n:dl ,uIIJl(.;~t:jOI1 of the l:xistinl~ llI;ol"OUI:hll h;lstch':ttcr' coll~ction Sy~tCJ(l onto the c:dstifl';: h.:~:.itc- \~':ltCl" collection system anJ to tl,"cat "Horour.h's" '....astch'atCr :1t "Olmcr'~1I existing sit':':j ilUJ l;'IIEREAS, tile parties h.:reco Jeel,1 it to be in the best inceN~ts of til" lo,,~iu':llts of Lemoyne Uorour,h allu Camp Hill ilorough to effectuatc this af,I'Cer.lcllt. HCM, TIIEREFO::J:, ill eOllsiJer:J.tion of the Jlremisc~ anu the ullu"rtal,il\l:S oj" C:lei> p:n"ty hercto, thc parties, each intcnuing to legally binu itself, COVell:lnt :lllJ nr.ree o.s folloh"s: 1. "fhc "(}\'Jl&cr" h'ill construct and place in operatioll il liCh' "':1.:.itl.:t-:r~tcr trca=l.l~Jlt pl.:LJlt cnpaulc of l))..ovillinf: cOI:lple:t:c trcntillun:: to the }"il\.r t~'astclv"atcrs or the th'O coml:lwlitics, it:.; l.lcfinc.:J ill c}L-dcl"s ,-..hie;, !t;lVC . been, or shortly ,,,ill be rcccivcu, frota'the Sanitar-y h':1t...:r i;O;Jl-d, Uel'"rtment of lIealth, Comn:olll<c'll th of Pennsylvania; nnd furtl:~r ,,'ill proviJe for a minimum of SO~, rcmoval of JlhospholoOU~ in th~ fa" l,':lStc- l<aters of the tl<O communities, defineJ."s total soluble phosl'i\;itc (I'O~). :.1, The "iJorough" Idll COnStnlct " nCI~ sel<ane pnml' sta ti'J11 at or """1' cxistinll "Borou~h" IIUlnholq number ~115 ~ :Jnc.l i11~() COI1.:itruct n :;cl'Jaz~ force m..olin from sniJ jllllnl' st:J.tioll to "l'pToximatdy the intersection of l~th ::itl'ect anu '.brket Street in the lJorouch or Lcmo)'Jle.' 3, The IIOt\'ner" \\'111 construct an ;.tclJitional interceptor Sct,'Cr frol:! :tpproxim:ltt.:ly '\ the intcrsection of 12th IlnJ /.fark"t Street in thc 1l0J'our,h of 'ocnOyne, to the cxistinr. sCI<ar." trC:ltmcnt plant site, in th" Uorour,h of Lcmoyne. -2- .: -... "\ * 4. Th~ h':l.stt.:h'~:i:Ci t:'t:~Lti:a.:ili: pl~~Ht. fo!' ;:hr..: th'O cOla::1;lf1.i.ti~'.ti :ilial1 b~ ~ons::ructeu css~J1t:ially in .1ccorJ~nc~ 1\'ith the d(,)sign u:!,'sis provic.kd in "i{cport to Lemoyne Uorou:;h Authority on Adv:1l!c'-'U Sel~:ll~e Trc::tmcllt F:lcilitit.:,;, Septcl:liJcr 0" 10(j~1/" :111\!' shall h::LVC a. nominal ucsir.n c.:lpncitj' of 2.U i.fi!liur. L. e........... Ga!lG:l~: Pc;- !iay. "0h'licrll sh::lll :~av~ ;L rC$r.:rvcJ t.:uP;:Cl.ty 0: U.J.!.U ;.illlior: ,,"~:~~-:;~:^11 t:..'llllln:; Per !Jay, and "llorough" shOlll U:lve a reserved capacity of l.UClU ~iillioll Gallons Per Uay. J -.... '"~'.'..": . "., f-'" i.J 5" The.} tot:ll capital cOSts of 1.., 2. ;u:c.l 3. above, lnclutlinz .:11 cnRin~cr.ii1g fc~s, lc:~~l l;O::it::i, :::Jll1inistrutivc co~ts, land and ri.tjh~s-of"h':lY', r.dSCC!!:LilC:OU::i costs anc.I fir::!.ncin~~ COSts. :;hall be ~pportionc:.l IJCth'CQl1 "QI','ner" :lnd t'Gorourrh" at SO!~ for C::lch p~rty. u. The tot:rl opcr~ting co~ts of -::hc 'iilStCi\'at:er trc~tr.1cnt plant s;i:lll be apportionetl bcth'CCIl "OWUCl-JI u"nd "~Ol"Ol1 gItH, at 50~.i for e:tch tJ:t:-::y _ Opc.r3. ting costs for the l\':lstcl"'~i;cr treatment plu.nt shall be only those costs <.li:-octly . :lttriuu::lulc 1:0 o;lcration of the treatment pl:lnt, tlllU ~11:l11 not i:lclu<.!e aJministra ti VO, lll.'lilltollallce, or 0 thcr co~ ts :lttributable to ci tiler the: "0\-111C1-' S" or "llorougb'slt existing, Ol" future, \i.i1StC\'l:1 tcr collectioil si"s'tcm~. 7. Opera tillg co:;ts ,dtll respect to the "lloroullll" PUi:tp station :1nJ force: ma.in in 2. above sha.ll bc the sole responsiiiility of "B01'OUflll". Upcr:;,tin;; .:;o~ts ..ith re:;pect to the interccptor sel~er in 3. nbove ~hall bc the' sole rc.sponsibility of "OI\'ncr"" S.. For purposes of ::1cr.;ur~ toly dC1:Crtlinil1!: fIoh's origin:lting in c:.ch cor.;inuni ty. "lloroup,Il" shall proviue a suit:lble mctering device for the :lCCU1'ate .... -3- ("\ J;:l,;.:Lsurcmcnt of f!o~..s origin.tt:iIlJ~ t...lthin the ilorout~h or C$IF JIill, ~acl JischargcJ into the "Oh'n~r'.::;" collection syst.em. "CI\'lwr" sll:l11 pro'Jiuc ~ .::iui tabl~ 1il~::Ql"inr. Jcvicc for tho .:Lccu:,"':t tu lilf.:aSl:l'"CW..:nt or flCh':i of the CXP:J.I1JCt! b-=StCt:::ttcr trC:.ltr.lcnt plant.. "fho p:1rties mtltu:"..!ly a:H"'C;; i:h~:.~ llL:vr(Ju;~hH flo~~'s at ~ny time $h~ll bo ::he Lliffcrcncc or I!iCCC1"' l't.:~l<.lin.r:.:i butl\'~un the "Oh'nerrl meter :lnd rruoroul~hrr mcJtcr. l.&"", C. \\. *'J. At sl1ch time as either "Ot./lle:-1I or "Uo::"(:'Uf!hTl 511:111 l.::xcced their rc.:scl"veu ca!l"city, "s ucfincd in 4. auave, by,lLl!',; fOl' :t pcrior.! of IS J.:lj'S ia any 60 r.!ay period, tilc Jlartic~ lJutu:d1y '"'ll"eC that they l,lill cn!;a1!e in ucgotia tions to fix an c'lui t.lU Ie :lrl"an~cmcnt ,V'i tit resp~ct to po.ynen t of operating costs, anu any auju$1:mcnt of eapitnl costs, as defineu in ~. auove. r"\ 10. In the evellt til:lt e::l"tasion of the 1,1".1'<: hydraulic cal'"city shull be rcrt.uir~t.! by virtue of ci ther the IrO~1ncr".. or U13orough" J e::cc~~ir~f:' reserved c<1p:tcity. such auuition..l capital costs silall be the subject of a n011 abtrccmcnt, formulated by ncgotio.tiol1s in good faith bct\iCCIl t!1c parties. 11. In the event tl~t the COL151oitt.Jcalth of l'cansj'lvilniLl, or ;tny other gov~rnmantal uor.!y h.wing jurisdiction thereof, sh:!ll ::-13quire modification to, or incrca~13 in the cffici~llt:y of operation or the l,tn.stC\.:atcr tl-C:ltmcnt pl:mt, St;,,:h tJta 1; cal'i tal expenditurcs arc requirer.!, ilnr.! the l'rov~sio!ls of IO. above, tic not aPllly, it is mutt:.:llly n!tree;.] that the capital eXl'cn.Jiturcs shall be upl'ortioneu as in 5. above. -' "\ -4- "'\ /" / 1.2.) Thl.: , ./ .~ "0\...a~r" J "Lt..::';::;~C", ~;.1d IIUul"OUf:hll \::111 uJopt ittcntical i~ulc:; awl Rcgulation~ pertaining tu the t[i:;clt.:11"r,c of \1!a.::itc~ to thL.:ir rcs!lc:.;tivt.: collection :;ystem::i, \..hich ShOll! li[;l.i.C the charilc.:i:cri~ti(:s of h';1S!:~ i~ilicl1 ar~ to be trcat(.:u in th/; cxp411lde:J t:a:::;tc.:h'ai:~r t:r.:atmC:it ~}l:1n:. .\:Ofl~ DE th~ i}:~'ctics ::;h:dl p~l"li1it, insofar ~.s it i~ practic:tlJl~ :0 u~tcct ~.:ll.l enfor-ee, :LilY Jcvintiolls in said lilni.~il1g charactcl.istic,s, as ucfinctl in tlw mutually auopted Rules and Regulations. 13. C:1pi1:L1I cxpcnditur..:s whidl :lra the o~lig;1tion of tile "Borou!,:!:" in 5. .:tUQVU. shall be r.:<1dc av:xilaulc to th~ "Ci':n"cr" c.lurin~ :hc cons~ru::tioa periot! in accortIancc t"i th a r.:utua! ly agrcC::tl upon proccc.lurc among, tha pn,rties. 14.. O!Jcrating costs \...ltich arc the obligation ,of the "UoI"ough" in 0. auovc, i .\ shall be paid tn 1I(J\\'nurlJ ~t lC:lst (~ulll.terly.. SUCil opcr.il:ii1!: cost~ ;J,S arc ~l'ttrilJut::.ulc to the operatiun of the l'l::'$'Cct'o'atcr tr":::i.:incn: :Jl=.ut .sh.."lll be r;rstu:ll1y defined by the p~l;.tic.:~) insofar :.1:; prac:icablc, prior to the co;.uil~nccm~ut of tile plant operation anu "0\oJJ1crlf shull p~oviJc IIljorou;~h" h'ith :l copy of said cxp~nJiturQs for the prccceuin~ month \.:ithin 5 htorI~illg U:1.)'s of ~he cnJ of ~ach r.lOuth. Payment by IlUorou.~h" to "0M1crlt for C:1c11 quarter I oS sharo of opc~":1tion shall be \.,.i tilia 10 tbys of the and of each qU:lrt:cl-.. 15. "Ullo"UCr" or "Lessc~u :l;::r~c::: to continue to operate :lIHl keep :lUc.! m~tiat~Lin it::; .faciliti~s ~nrl trl,}o.ti;:t,mt plant :Jot :tll times ill first cln$~ rcp:lir and orc.!ol- anu efficient opcrati:l!~ condition, ~i1tl to mcet the $t.':mJ~lnls pl"~scr ibct1 by the pcnnsy Ivani~ Ucp:lrt.mcnt of ilc:.tl th 01" :lay o~hcr -' "'\ :;:ovcrnmontal :luthority hnvin~ jurisdiction. "01'0'1101..11 or "LC$s,"c" ~~rcc that it \\I'i 11 not enter into ony I1C\-; or iHldi tional al~rcct1C'nt$ COi1cct"'uin:: 'the rcccir,t, t.rcatio'lCllt a.n..! disposal uy "U''':IH.:r" or "Lessee" Ot sC~.;:lg..: frlJ~ ,'. -- ( \ .Ut}' utlu.:r Il:tmil.: ir:~l i ty 1..:11" r.1l!ui.r..: il':i.l i tic::; \";I:ich \,!otLltl il,IF~i:r l'OLo:lcr" or "LC$SCiJ'S" abilit:y ai.ld obli:;.:.J.t.ion to rc.:ccivU' awl tl"Cat SC\oJa(TL:' in . I I~ tho roJ1,11cr .:LnJ al:;ountS provideJ for in chi:; Aer~cm~nt. 16. "llo::::-OUl!h" s11:111 indemnify ~nd s~\'c h.:l~~lj!lcss l:O~'.'Hcrn and "Lc~$ce" ~.I13.in5t any cl:lil~S for tla:::.:~gcs ari.~ing uy l"C:.l$on of the constrt.:cciou, rr.:tintcl1ancc amI/or repair of aU ~e"'er~ which Ilo;:-ou,~h n::ry connect thercto. 17. rids Agreement skdl inul"c to the. bcnefit 'U:u bind the s:.:cccssors of the pal.ties hcruto, aau no party hcr.:to mny assign any or all of their rights and l'c~jlonsi!Ji li tics hereunder \vi thout thc l<!' ittcn cOilsent of all the parties. IS. 'fhis Agreement ~hall become binJing immediately upon its execution by ,." and uelivery among the I'artic~ hereto. 1!J. 11: is mutually ar,rccd th'lt in the event: a joint authority i$ ueemed by . the parties to be ~hc most suit.:i.Jl~ vehicle for fina.ncing the construction of the c<~pital additions r.::fcr!'~J to !~crcin,- that a nCh' a~ecJllent ~h:lll be preparcu, which ~hal1 embody thc tcrms anu conditions bctt~cen the Jlarties "greed to herein. 20. Exhibit IIA"" att.:1chc.J hereto" anu mauc ~ p:l1~t hurcoz" recites anticipated total capIto1.l expenditures, o.nJ the apportionment thereof, as of the date of this AgNement. This exhibit is all estiliklt" :,nJ ~hal1 b.., a,ljustcd by the parties :t.t such time as 1:hc project co;.!J:lcncas~.. IN IH'lilESS 11IlEREOF, the llorou.::h of :"eiDO yne ha~ caused this Ar.reemcllt to be executed by l'resic.lcllt of llol'ough Council, lttte~tcd by Secr<.:t':lrY of UOl"ou::h Council alld :tPi?'"ovcc.I ..... by the I.layor; "Borouah" has c~uscd thi~ A!~.n:~mcn'C to b~ cxccut~J by th~ Pr~sidcnt r., of its tl()=ouJ~h ClJt,:ol:llJ ~1.:tC$tcJ liy its :';Ct;:-t.:t~~l.Y, ;.:.i:d :lPl:rOvt;J by ii;:i ;'~.i'()rj anJ TllC :':liI~icipal i\uthcri:y of ~hc.: ilo:-vu.t~h of LCI~oync c.:luscd this Af,rccl.tcnt to wo cxccutclI by its Chairr.am) utt:lJstcd by its Sccr~t=trYJ ~ncl illl the rcs~Jccti'/c corporate ~c:lls hercto affix.:u, the uu.y :tllU ye:lr first above h'!'l<;<:,n, ~Ci:OU(;11 CDU!:CIL ill' TilE 1::0110 lIG11 0 F LEIloni!: ,\'fTEST: llY:~~,A"~, Presiucllt <,--yj/U/IW . --7TYI"'i). rMft.{>ft. '6' ~ ::i.::c!"c tar y (SeA L) Approveu NMMJ) E:PiL ~ ~!::.)'or "\ ATTeST: . TW: MUNICIPAL AUTlIURLTY OF TilE ilOrWUQI OF LEf.lOY:,E .... ".. '-'" . /)(,'~\ ni:.. .L{.l'~_~ if./ l .'.......-J;.._..... -chninnun " ( (' " ~1 - \{/]'JJ!F1.$Yidbf//1 if ;,ec l'atary 7' (SI,AL) ilOROUGil COUNCIL OF nn: ilOROUG!: or: CMU' !lILL ATmS'i': Ily: ~(~,~~--;t (,Q';;.iJ.:lllt ~ ~ 0 L-s.t(~u.c:~ cJ-' ~ Secretary I r;' . /, /t'vt..b4 t/ (5r:AL) . ~(:-- -.f..~ .;. ~~ ~ ., "\ , ,- E.:\Ii!a~T "1~" 'fO .^.GRE8-ZENT FOR. 'l'RE~.l;.T~.!C:l~T OF HASTEHATER Estii~.:lted CO:l::iti:uction Co.;t: - H~st,zt~Y~~cr Ti."'c:atrr:cu.t Plont Estiwated Construction Cost: - C~i':!p Hill Pc:np StZ1'~ion F.t. Forc~ Hain Estic3tcd Construction Cost - Lcrnoyn~ Intc:t"c~ptor Sct.;er TOTAL ESTL'U,TED CONSTRUCTION COST . . Tot~l Esti~at~d Projeet Co~t @ 125Z of Total Es~irnatcd Construction Cost Less Fcde~~l Grcnc on H~ste~uter T~es:m~nt Pla~t Less Feder~l Grant on Ca~p Hill ?ucp Station and Forca :'!a.in TOTAL ESTIHATED NET PROJECT COST . . . . . . . . Lemoyne Share @ 507. Camp Hill Share @ 507. . $1,136,000 De ,oeo l'U;,OCC $1 ,t100, 000 $1,750,0(,0 360,000 l~2. oeo $1,348,000 $674,000 $674,000 " ...., il()l~ough Council of tht,} i.iol'vl~f~h of i~f0nall.:Y$L;l.i.~'g :Ind the j.llnicil'nl Authority of the il(jrou:~h of l':ormicysbur~ h~rcby .Juin hl.::i'ci;l tlnJ COJ1s~nt to the cx~:.:utl.Gi1 hereof by th~ llol"oup.h of L~j:loync anJ the t.iL:nicir>:11 ^ut~lority of the Boroil[:h of LUr.1oync insof~r :1:' :wid consent :i.J1U jDinder :::.ay be ncccssar~' by r~:t${J:: -Ji ~;.:istiil.~ i.lf.rCCi!icnt~ lH.:th'CCn the J.;orou!.:i1 of LCI:iOYiH..:, the H.luicipal Authority (If tile jJnrour.ii. of f..cli1oyncJ the uorough of I\'orlalcysbur~ ~lnd th~ !.lul1icipal Authority of t~lC :jDrou::':l of l:orIJlcrsbur~ for the: tl"anspurt':ltion by nnd bct\1CCn the tHO B01'OUI~hs of SCl./:t,?C and the trC:ltmcnt thereof at the sOh'age 'trCai:lllCtlt plant loc~tcu in the :!orou~h of Lcmoyno. 130RCUCn Ot: NOIU.lLEYSI3UHG "..,TEST: 17: iJ}." IL'L~ ! -:::3 :tf~~ ,-:.' //" ;.4 \"i '" -L~!:~~~: vI . jlt/lf!:{ / "I '~ / ' uy.z..~/.(.t:e:..~ I\. /L~-v..., llrCSlLlcnt , ' .I ,...........{.~ . (SI,AL) . THE r:l.iN!CIPAL AU11iOHITY OF THE ilOROUGil OF liORl,jLEYSllURG ATTES'(':, '} '/?t"-iJ- c (?.:-~ '- ticaI"ct:~r;' . , , )J ,.1 ~., By:' /).., ;f':'L )it }1-4'JJ..~,-J /, I, el .!lrl~Jl1 (SEAL) -s- ~ . J\' - ~, r ~ I ~ l , 1 i Alt."<<)I.U. ~W:I!.. ,"YLEY '1'.....'...11.1'.... ".................. ~..-II..........-....._'""" , " I ) I. ' --~- ~-' ' ~ '.:.. . AMENDED AGREEMENT FOR THE TREATMENT OF WA.STEliATER . ~ {(Ll("llI ,+ J T!iE MUNICIPAL AUTHORITY OF T!iE IlOROUGli OF LEMOYNE, Li.. .X day af , 1972, AGREEMENT made this by and bet'.een o~ganized and existi~9' under and subj ect to the Municipal Author- ities Act of 1945, as amended, hereinafter referred to as .owner," the BOROUGH OF LEMOYNE, a municipa~ corporation organized. ana existing under and subject ta the laws of the Commanwealth of Pennsylvania, hereinafter referred to as "'lessee,". and the BOROU( OF CAMP_HILL, a municipal corporation o~ganized and exist~~~ und~ and subject ta the laws of the COlMlOnwealth of Pennsylvania, he'reinafte.r referred to as -borough, n. WITNESSETH: ?,:;i;_:;.; .. ~, ~he parties entered into an agreement dated November 11,' .1969 pertaining to a wastewater collection system and t:eatm.ent plant. t.o be constructed by the owner; and WHEREAS, a pe:mit. for the 'const:uction of the collection system and plant has been issued by the Commonwealth of Pennsyl- vania and federal, 'grants have been awarded; and . W"dEREAS, ,bids have been received and the award af the con- tracts. has been made by owner; and WHE3.EAS, ,the parties desire to amend their D.grcement of November 11, ,1969 to recognize certain changes which have occurre. during the design and award of the contracts. NOW, THERU'ORE, ,in consideration of the premises and the undertaking of eaCh party hereto, ,the parties, each intending ta legally'bind itself, ~ovenant and agree as fallows: 1. The owner will construct and place in operation a new wastewater treatment plant capable of providi~g complete -,( t < '1 ; . ~ , ; I i , i , , , l t i . l . ; i ! i i i ~ fi .~ t~ t.! r r i, I j d !: i, ~ ;; ~l " lJ- " '~ , l "ANUU1, Sf Il:li .. hA \"L1jY' \I1.<<.~I" >I I'''' II.........T',.II'I' c.._ll.........__,.... 2 ~ i II ..~ . trea~~ent for all wastewaters of the two communities as de:ined in orders which h~ve been received from the Sanitary Water Board, Department of Environmental Affairs, Commonwealth 0: Pennsylvania, and fu:ther will provide for a minimum of S 0% re..'!loval of phos- phorous in the raw waste waters of the two communities I defined as total soluble phosphate (P04). 2. Owner will construct a new sew~ge pump station at a location to enable sai.d station to pump the sewage from all of the users of the boroughs and will construct a sewage fo:ce main from said pump station to the proposed new treatment plant in the Borough '~f Lemoyne. 3. The wastewater treatment plant, .sew~ge pump station I and force main will be constructed essentially in accordance with plans "and specifications prepared for owner by its sanitary e?9'ineer', .Tracy E!lgineers,. .Inc~ I .and shall have a nominal design capacity of 2.20 million gallons per day. 4. Owner shall have a reserve capacity of .93 million g-allons per day and borough shall have a reserve capacity of 1.25 million, gallons per day. 5. The: 'total capital costs of 1,' ,2, ,3 and 4 above, includi;1q all ~9'ineeri~g fee.s and l!!!qal costs; administrative cos1:s, .land, and rights-of-way and miscellaneous costs shall be apportioned between owner and borough at SOt for each,party. Financing costs shall be the responsibility of each respective party. 6. The total operating costs of the wastewater treat- ment plant, pumping station, and foroe main shall be apportioned between owner and borough at SOt for each party. Operating costs for the purposes of this agreement shall be construed to include - 2 - ~J ;f ~" r' <~ ".; fl , '[ ...:~ .::: '. " " " .r:;. ;;~ ,I ',< : ~ ; r u N :~~:~ ,,"' '" ~.i:f ""~ ~ .i L ~' j . < < "AI"'UlIJ, $1110;1:" n.u1EY 111'1\1"0_ "". I_..A......'"..". c:.....11...1, -...,.._. 'Mil ; l j j r ~,,----- - only those costs properly attributable to the operation and main- tenance of the trea~~ent plant, pumping station and force main, and sha2l not include a~~nistrativet maintenance or other costs attributable to ei~~er the ownerrs or boro~gh's existing or future wastewater collection system. 7. For purpo3es of accurately determining flows origi- nating L~ each community, borough shall provide a suitable meter- ing device for the accurate measurement of flows originating with- in the Borough ,'of Camp Hill which 'are being discharged into owner's. treatment plant. Owner shall provide a suitable meteri~s device for the accurate measurement of all flows into the expendc- wastewate.r treatment plant.. , 8. At 'such time as either owner or borough shall exceed 't..i.eir reserved capacity, ,as defined in 4 above ,. .by 10% fo::.. a perioe of 15 days in any 60 day period, the parties mutually agree that they will engage in negotiations to fix an equitable arrangement with 'respect to payment of operating costs, ,and any adjust,.ent of capital costs, ,as defined in 5 above, . 9. In the event that expansion or t.'le plant hyc:raulic capacity shall be required by virtue of either the owner or borough exceeding reserved capacity, such additional capital costs shall be the subject of a new agreement formulated by negotiations in, good faith between the parties. 10. In the event that the Commonwealth of Pennsylvani ' or any other governmental body having jurisdiction thereof shall require modification to, or increase in the efficiency of opera- tion of the wastewater treatment plant, such th"t capital expen- ditures are required and the provisions of 9 above do not apply, - 3 - r ~ ~ " i ~ '. .. ,- f,' r t''- ( II II ~ i i) I' ! l AAHOLb. SIlK!.. lAYLlY "n.......,.,,\"I ...... '" ',; C._1....'-h-~......_11011 ,......_"''''......., Ii t " 1 (' ""1 t .6"',. it is mutually agreed thA~ the capical expenditures shall be apportioned as in 5 above. 11. The owner, lessee and borough will adopt identic~l rules and regulations pertaining to the discharge of wastes to their respective collection systems which shall limit the ch~rac- teristics of waste which are to be treated in the expanded waste- water t.reat..'Uent plant. None of the parties shall permit, insofar as it is practicable to detect:. and enforce, any deviations in scJ.id limiting eharacteristics as defined ia the mutually adopted rules and regulations. 12., Capital e.'<Pendi tures which are the obligation of the boro~gh in pursuance of this ~9'reement shall be made avail- able to the owner duri!19' the .construction period upon written request of owner. Owner shall submit to boro~gh .invoices as the work pr?q:esses so that each invoice is shared equally by t.ie parties.' 13~ , Operati!1g costs which are the obligation of the boro~9'h .in 6 above shall be paid to owner at least quarterly. Slilch operat.419' costs as are attributable to the operation of the wastewater treatment plant shall be mutually defined by the parties.. ,insofar as praeticable, prior to the commencement of the plant operation, and owner shall provide boro~9h with a copy of said expenditures for the preceedi.ng- month within fiye working days of the end of each month. Paym~,:t by borough to owner for each quarter's share of operation shall be within ten days of the end of each quarter. 14. OWner or lessee agrees to continue to operate and keep and maintain its facilities and treatment plant at all times in first class repair and order and efficient operatinq condition - 4 - ... 'r '1'-\ANCllU' SLl~J: " ...\ YlF.Y '\11''''.1'' U It", ~ ~'" _...w u...., I ,...,~.,~-"..- ,." , t'f' and to meet the standards presc~ibed by the Pennsylvania Depart- ment of Environmental Affairs or any other governmental authority having jurisdiction. O\II'ner or lessee ~grees that it will root enter in-=o any new or additional ~gree~~_z:_~s._r::_:'~C:_E!:"~E:~__~e receipt., t;eatmen~ 'and disposal by O\iner or lessee of sewage from any other municipality or municipalities which would impair owne~_or ~----_.......----~- --~ ----~ lessee's ability and obligation to _r~c~ive and t.;:eat se'..,age in.. the manner and amounts provided for in this Amended Agraement. --~_. -----.--.-..--" 15. This Amended Agreement shall inure to the henefit and hind the successors 'of the parties hereto ,and no party I hereto may assign any or al,l..of their rights and responsibilities , ,..._.."....,-,. .--- ,,"'" .' ..-.....---..-.-.-..--- -~--,_."'..-..- - - hereunder without th..'writtenconsent of ..all the parties. 15. This Amended Agreement shall become binding i=une- diately upon. its execution by and delivery arno!'19' the -pa=ties hereto. 17., Exhil:li ts 1 and 2 attached hereto and made a pa..-t hereof recite 'antieipated total capital expenditures, ,and the apportionment .thereof, .as of the 'date of this Amended ~S'=eement~ . These exhibits are :the 'latest estimates and shall be adjusted by the parties as such time as the project ,commences. IN WITNESS WHEREOF, the Borol.lgh of Lemoyne has caused this Amended Agreement to be executed by President of Borough Council, attested by Secretary of Borough Counc,U and approved by the !layor; the Borough of Camp Hill has caused this Amended Agreement to be executed by the President of Borough Council, attested by its Secretary, and approved by its Mayor; and The Hunicipal Authority of the Borough of Lemoyne has caused this Amended Agree- ment ~o be executed by its Chair.man, attested by its Secretary, - 5 - ". and year first above written. and all the respective corporate seals hereto affixed ,the clay 'ATrES;r, ,', " ..... - ,l.' ,I: :\'" JI ...... i '-. . . "\" " q.1~t(}B- ... '.('.' Secretary '\ ....". j \. . I 1 i I i I r ,", ;, ATTEsT: " 1 ' ';4L~~\~,9Ii': " ' sec'1etary . :: : ATTEST:, '. J;i/;l )il:l/I,,/I vi secretary~' ,,_HOII). Jut<::1l . Una' , , .UI....I\...tTl...... I............,....., .....-'11I.._..._1_, ! '1 1 I.! BOROUGK OF LEMOYNE I~ ';..-' ~ 't' --;7 !~i .r By: A,'-'z.... ~'-' ../. ;~,,-'~'f~'~~, President APP ROIlED: '-RLJCP,4EA/ Mayor BOROUGK OF CAMP HILL By: ' ~. -.~ '~_"'l--.-L.~~,;J.;, President ~ APPROIlED: ~;..,w./ fl 'l~1-<"'" / Mayor .,., ~ MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE " . '-, ~' ..... : I , ;r'" B~Cl/~.,,/),.:.- ,t"i,(u, . . Chairman .:J . - 6 - ~- T I t , I i i 1 II 11 Ii I: i, f...l .)." ;~ .. ," ;; t ~ i ~ .~ ~ h ~ < l I \ & ~ ! ~ ," A.M"',- $lj"1: .. 1I.\'n IY , . UlI..;.,Il....,I'\ , 1...........,s.....1' ~ r.._Uot.L.""_.._.I:'It1l I ! h. The Boro~gh Council of the Borough of Wormleysburg and the Municipal Authority of the Boro~gh of Wormleysburg hereby join herein and consent to the execution hereof by the Borough of Lemoyne and the Municipal Authori ty of the Borough of Lemoyne insofar as said consent and joinder may be necessary by reason of e:dsti~g agreements between the Borough of Lernoyne, the Municipal Authority of the Borough of Lemoyne, the Borough of Wormloy.burg, and the Municipal Authority of the Borough of Wormleysburg for the transportation by and between the two boroughs of sewage and the treatment thereof at ,the sewage treatment plant located in the Boro~gh of Lemoyne" BOROUGH OF WOlU>lLEYSBtlRG By: President ~TEST : Secretary . THE MUNICIPAL AUTlIORlTr OF TIlE BOROUGH OF WORMLEYSBORG By: Chai;rman ATTEST: Secretary ~' - 7 - .-r I i I I i i I I 'I I AMENDED AGREEMENT RELATING TO PUMPING STATION THIS AMENDED AGREEMENT, made , i\ this 3~ day of ~l , 1985" by and between: THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, a municipal authority organized and existing under and subjeet to the Municipal Authorities Aet of 1945, as amended, hereinafter referred to as "Owner"; and THE BOROUGH OF LEMOYNE, a municipal eorporation organized and existing under and subjeet to the law of the Commom;ealth of Pe!l.!l.syl- vania, hereinafter referred to as "Lessee"; and THE BOROUGH OF CAMP RILL, a municipal eorporation organized and existing under and subjeet to the law of the Commonwealth of pennsyl- vania, here in,after referred to as "Borough"; and WITNESSETH: WHEREAS, Owner owns and Lessee and Borough operate a raw sewage and waste water tr-eatment plan and certain pumping stations and pumping facilities which convey and treat raw sewage and waste water collected within the Borough of Camp Hill, the' Borough of LelIloyne, and I the Borough of Wormleysburg; and WHEREAS, the parties hereto entered into an Agreement for the Treatment of Waste Water dated 11 November 1969 and an Amended Agree- ment for the Treatment of Waste Water, dated 8 August 1972, whieh 1 * J ,5-3--- 1 'CI BOL8-LEL lULl o..H:!'J,.J w'J:l "55:60 EO LO In, 1'- 1/ ,I II :; " H il Ii I' ,! Ii II I I I I provide for the eonstruetion and operation of a waste .ater treatment plant and certain pumping faeilities and eertain portions of a collec- tion system; and WHEREAS, part of the said Agreements provided for the eonstrue- tion of a sewage pumping station to pump sewage and waste water from I " " the Borough of Ca:np Hill to the treatment plant loeated within the Borough of Lemoyne; and WHEREAS, a sewage pumping station was constructed by the Owner along Old Gettysburg Road in Lower Allen Township, Cumber-land County, Pennsy 1 vania, and has been operated and maintained by the parties since its eonstruction; and I' II , , I WHEREAS, the parties now des ire to eonstruet a new faeil i ty for the pumping of the waste water and sewage from the Borough of Camp Hill to the waste water treatment plant located in the Bor-ough of . Lemoyne, and have reached agreement for the planning and eonstruetion of sueh facility, the payment for the cost of eonstruetion of such " facility, and the maintenanee, operation, and payment for same of sueh , facility after its eonstruetion, and wish to have their agreement redueed to writing; and WHEREAS, the parties here'to deem it to be in the best interests of the residents of the Borough of Lemoyne arid the Borough of Camp Hill to effeetuate this agreement and reduce it to writing. I I I NOW. THEREFORE, in eonsideration of the above reeitals and of the I Ii mutual covenants hereinafter set forth. the parties hereto, each " 11 I: 2 II " God BOl.B-l.gl.!l.ll.) o..Jew W~.l ~SS:SO gO l.0 InC I I ! I I i ! intending to legally bind itself, its suceessors and assigns, hereby eovenant, promise, and agree as follows: 1. Owner will eonstruet and plaee in operation a new waste water pumping faci 11 ty, which shall incl ude three raw sewage pumps, variab Ie speed pump controls, an influent comminutor, an emergency generator, a flow meter, and building eapable of providing safe and prompt pumping of all waste water brought to it by the eollection syste~ owned and maintained by Borough, at a loeation in the Borough of CaiOp Hill to be determined by O',mer but loeated at or near Spangler Road and will connect said pumping faeility to the existing main coming to it from I I I Lemoyne. I the Borough of Camp Hill and to the existing force main running from the site to the waste '.ater treatment plant located in the Borough of 2. The pumping station facility will be constructed in accor- dance with plans and speeifications prepared for Owner by its consul- ting engineer, Buehart-Horn, Ine. Owner shall be directly responsible for the planning, eonstruction, and completion of sueh pumping faCility. Borough and Lessee may review plans and specifieations and may make reeommendations with respect thereto prior to the final adoption of them by Owner. 3. The total costs of the eonstruetion of the pumping faCility I I I i .I and its eonneetion to the Camp Hi 11 main and the foree main, including all engineering fees and legal costs, administrative eosts, land and rights-of-wayaequisition, deactivation of old pumping station to meet DER specifieations, and other costs, and all miseellaneous costs, will 3 Eod BOloB-loEl.(loIlol o"'''w W~l "95:60 EO loa [nr T I II , 1 'I I, I' :' Ii ,I " " li I' " iI I, I; Ii d " il I II " ii I: Ii II Ii " I I /' ,I I I I I I I be apportioned between Owner and Borough with Owner paying thirty- eight (38%) percent thereof and Borough paying sixty-t~o (62%) percent thereof. Each party shall be responsible for its own financing eosts, The parties acknowledge that the total construetion costs, based upon bids reeeived, are approximately Six Hundred Forty-Five Theusand ($ 645 ,000) Dollars and that they have allowed an additional Seventy- Five Thousand ($75,000) Dollars for engineering, legal, and admini- strative eosts. 4. The eost of the construetion of the pumping faeility and its connection to the Camp Hill main and the force main and the other oapi tal expenditures related to sueh work, shall be billed by the engineer and the contraetors directly to Owner. Copies of all bills and supporting doeuments shall be made available to Borough as they are reeeived by Owner and Owner shall cooperate fully with Borough in obtaining and making available any additional records or doeuments . neoessary to explain, doeument, or illustrate the 1I0rk done and the payment requested for such work. Owner shall submit periodie invoices or bills"to Borough for Borough'S share of sueh expenses and Borough shall pay same promptly. 5. Lessee and Borough agree to oon tinue to operate and keep and I I r maintain the pumping facilities in first class repair and order and in effieient operating condition such as to meet the standards preseribed by the Fennayl vania Department of En v ironmental Resourees or any other go vernmen tal authority having appropriate jurisdiction over sueh matters. 4 v'd 80L8-LEL(LtLl o.Jew W'!-l eSS'SO EO LO Inc 6. , This agreement shall inure to the benefit of and shall bind the successors of the parties hereto. None of the parties hereto may assign any or all of their rights, responsibilities, duties, and obligations hereunder without the prior written consent of all bther parties to this agreement. I I , , I I , i i , ,. Ii '/ II I, II 7. In the event of any dispute regarding any of tee terms or provisions of this agreement, the construetion of the pumping faeility and its connec t ion to the Camp Hill ma i n and the foree main, or any, other matter reasonably related to the eonstruction projeet and this agreement, the parties agree that they will all meet, by duly- authorized representative, and negotiate, in good faith, to adjust any differences and to find a full, fair, and prompt re:nedy to any problem and r,esol ve to any dispute. 8. This agree:nent supplants and replaees entirely an "Agreement Relating to Pumping Station" between the parties dated 2 Nove:nber . 1983. All other provisions of the agreements of 11 Nove!:lber 1969 and 8 August 1972 between the parties hereto shall remain in full foree " and effect, unless expressly modified hereby. IN WITNESS WHEREOF, the Municipal Authority of the Borough of Lemoyne has eaused this Agreement to be executed by its ehairman, attested by its secretary, and affixed with its corporate seal; the Borough of Camp Hill has eaused this Agreemen,t to be exeouted by the President of'its Borough Council, attested by its, secretary, approved by its Mayor, and affixed wi th its corporate seal; and the Borough of Lemoyne has eaused this Agreement to be exeeuted by the President of 5 S'd ~9S:60 EO LO {nr BOLB-LELILll.1 O.J~W wJl " I " I, 9'<1 I' , its Borough Couneil, attested by its secretary, and approved by its Mayor, and affixed with its corporate seal, all the day and year first above written, ATTEST: ---->~ n' c r/l11.t/YV _ --11/L. Seeretary ~ ATT~ ~ Secretary /J MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE by: {h..v-.1 R e~ 't1ei"irman BOROUGH OF CAMP HILL by: 7-1- . :rW~ -/ ~/A../' P re.f\den t , I ~~,lAJ~ Mayo~ \ A~~1!---- Secretary BOROUGH OF LEMOYNE]b " I ,,( - --: /, - ~~ d~i~''-(~~ '...A i-P;J w-ti~iA./ M yor ;, . i: !; '6 80108-1o1':1o11otlol o.JIi'W W~l "9S'SO 1':0 1o0 tnr '. AGREEMENT RELATING TO PUMPING STATION "')...,~ THIS AGREEMENT, made this ~ day of NuvQ.~b, 1983, by and between: THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, a municipal authority organized and existing under and subject to the Municipal Authorities Act of 1945, as amended, hereinafter referred to as "owner"; and THE BOROUGH OF LEMOYNE, a municipal corporation organized and existing under and subject to the law of, the Commonwealth of pennsylvania', hereinafter referred to as "Lessee"; and 1 THE BOROUGH OF CAMP HILL, a municipal corporation organized and existing under and subject to the law of the Commonwealth . of pennsylvania, hereinafter referred to as "Borough','; WITNESSETH: WHEREAS, owner owns and Lessee and Borough operate a raw sewage and waste water treatment plant and certain pumping stations and pumping facilities which convey and treat raw sewage and waste water collected within the Borough of 'camp Hill, the Borough of Lemoyne, and the Borough of wormleysburg; and waEREAS, the parties hereto entered into an Agreement for the Treatment of Waste Water dated 11 November 1969 and an Amended Agreement for the Treatment of Waste water, dated 8 August 1972, which provide for the construction and operation of a waste water treatment plan and certain pumping facilities and certain portions of a collection system; and WHEREAS, part of the said Agreements provided for the con- struction of a sewage pumping station to pump sewage and waste water from the Borough of camp Hill to the'treatment plan located wi thin the Borough of Lemoyne; and WHEREAS, a sewage pumping station was constructed by the OWner along old Gettysburg Road in Lower Allen TOwnship, cumberland county, pennsylvania, and has been operated and maintained by the parties since ,its construction; and WHEREAS, the parties now desire to construct a new facility for the pumping of the waste water'and sewage from the Borough ~f camp Hill to the waste water treatment plant located in the Borough of Lemoyne, and have reached agreement for the planning and construction of such facility, the payment for the cost of construction of such facility, and the maintenance, operation I . and payment for same of such facility after its construction, and wish to have their agreement reduced to writing; and WHEREAS, the parties hereto'deem it to be in the best interests of the residents of the Borough of Lemoyne and the Borough of camp Hill to effectuate this agreement and reduce it to writing., NOW, THEREFORE, in consideration of the above recitals and of the mutual ,covenants 'hereinafter set forth, the parties hereto, each intending to legally bind itself, its successors and as signs! hereby covenant, promise, and ~gree as, follows: 1. QNner will construct and place in operation a new waste water pumping facility, which shall include three raw sewage pUmps, variable speed pump controls, an influent comminutor, , " an emergency generator, a flow meter, and building capable of providing safe and prompt pumping of all waste water brought to it 'by the collection system owned and maintained by Borough, at a location in the Borough of camp Hill to be determined by owner but located at or near spangler Road and will connect said pumping. facility to the existing main coming to it from the Borough of Camp Bill and to the existing force main running from the site to the waste water treatment plant located in the Borough of Lemoyne. 2. The pumping station facility will be constructed in accordance with plans and specifications prepared for Owner by its ,consulting engineer, Buchart-Born, Inc. owner shall be, directly responsible for the planning, construction, and completion of such pumping, facility. Borough and Lessee may review plans and specifications and may make recommendations wi th respect thereto prior to the final adoption of them by owner. 3. The total costs of the construction of the pumping facility apd its connection to the camp Hill main and the force main, including all engineering fees and legal costs, admini- strative costs, land and rights-of-way acquisition, deactivation of old pumping station to meet DER specifications, and other costs, and all miscellaneous costs,' will be apportioned between' Owner and Borough with owner paying thirty-five percent thereof i~~t~~~~{i.d~. Each party shall be responsible for its own financing costs. The parties acknow- ledge that the current estimates of cost of facilities, con- " , struction, land, rights-of-way, and the like, is $300,000.00 and that the engineering, legal, and administrative fees are estimated to be $75,000.00. !f the cost of the project exceeds the estimated cost and if the parties cannot ag~ee upon any adjustment or reapportionment of the proj ect or its costs, each party shall be free to terminate this agreement at that point by giving written notice thereof to the other. party. 4. In the event of the termination of this agreement by either owner or Borough in accordance with paragraph 3 hereof, each party shall pay 'their proportionate share, (as calculated in accordance with paragraph 3 hereof) of costs incurred prior to termination in accordance with the procedures set forth herein- below. 5. The cos1< of the construction of the pumping facility and its connection to the camp Hill main and the force main and the other capital expenditures related to such work, shall be billed by the engineer and the contractors directly to owner. Copies of all bills and supporting documents shall be made avail- able to Borough as they are received by owner and owner shall cooperate fully with Borough in obtaining and making available ~y additional records or documents necessary to'explain, docu- ment, or illustrate the work done and the payment requested for such work. owner shall submit periodic invoices or bills to Borough for Borough's 'share of such expenses and Borough shall pay same promptly. .' 6. Lessee and Borough agree to continue to operate and keep and maintain the pumping facilities in first class repair and order and in efficient operating condition such as to meet the standards prescribed by the pennsylvania Department of Envi- ronmental Resources or any other governmental authority having appropriate jurisdiction over such matters. 7. This, agreement shall inure to the benefit of and shall bind the successors of the parties hereto. None of the parties hereto may assign any or all of their rights; responsibilities, duties, and obligations hereunder without the prior written consent of all other parties to this agreement. 8. In'the event of any dispute regarding any of the terms or provisions of this agreement, the construction of the pumping facility and its connection to the camp Hill main and the force main, or any other matter reasonably related to the construction project and this agreement, the parties agree that they will all meet, by duly-authorized representative, and negotiate, in good faith, to adjust any differences and to find' a full, fair, and prompt remedy to any problem and resol~e to any dispute. 9. All other provisions of the agreements of 11 November 1969 and 8 August 1972 between the parties hereto shall remain in full effect, unless expressly modified hereby. , IN WI'INESS WHEREOF I the Municipal Authority of the Borough of Lemoyne has caused this Agreement to be executed by it~ chair- man, attested by its secretary, and affixed with its corpora~e seal; the Borough of camp Hill has caused this Agreement to " .' - be executed by the President of its Borough council, attested by its secretary, approved by its Mayor, and affixed with its corporate seal; and the Borough of Lemoyne has caused this Agree- ment to be executed by the President of its Borqugh Council, attested by its secretary, and approved by its Mayor, and affixed with its corporate seal, all the day and year first above written. A'rTEST: '-) MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE by: ..' .-rl ' ,'. ".I' .,--"_ ....,.,....-<-.. -~ (1 .! . ......l[.r..,.....~ "'I, ,-, ,~-' ""-,, ,. f' ,/{...l..."t.;t..r.-'r___ ( ,'"-"" ,( }e...:.,.'c <.. " t 'secre ar"f./ / , \" -" Chairman ; , J i. ,: " A7~jr: 0<-e.JL, Q~44 secretary.;/ f BOROUGH OF CAMP HILL by: 1/ -4f~;'~ President d' ",oJ' , '.' #: I ,"~~,.../""""... / . o WJ,(C, L\)~ y-l' Ma~ ATTEs~r: '~~~'l(&Ja~ s~ret<lry . ' .007 oF: ;~y, coy P~' '1 V (2AA~~d(~ Mayor -' ,~ "l "- IJ ~ "" w~ ~~ \' \ y, u\ ,^ '-,,\1 - \ N I ^ '\'~ V\ ~ ~ ~\ ~ ~ '\ \\ ~ ~~ ~ - -, " ') . .-1 ~\ .,---/.1 TO: Borough of Camp Hill, Plaintiff You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Pepper Hamilton LLP 9-. BY: BOROUGH OF CAMP HILL, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, NO, 03-5591 BOROUGH OF LEMOYNE THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, CIVIL ACTION - LAW Defendants, JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF LEMOYNE Pursuant to Pa, RC,P, 1028, defendant Borough of Lemoyne ("Lemoyne"), by its undersigned attorneys, makes the following preliminary objections to plaintiff's complaint: Preliminary obiection Dursuant to Pa. RC.P.I028(a)(2) I. Pa. RC.P. 1028(a)(2) permits the filing of a preliminary objection to a pleading that includes scandalous or impertinent matter. 2. Plaintiff's complaint asserts claims for breach of contract (Count I), unjust enrichment (Count II), promissory estoppel (Count III) and negligent misrepresentation (Count IV). 3, Paragraphs 13-25 of plaintiff's complaint contain scandalous or impertinent matter that is immaterial to plaintiff's claims. WHEREFORE, defendant Borough of Lemoyne, requests that this Court strike the allegations of paragraphs 13-25 because they are scandalous or impertinent. Preliminarv obiection pursuant to Pa. R.C.P. 1028(a)(3) 4, Pa, R.c.p, 1028(a)(3) permits the filing of a preliminary objection to a pleading that is insufficiently specific, 5. Plaintiff's complaint asserts claims for breach of contract (Count I), unjust enrichment (Count II), promissory estoppel (Count III) and negligent misrepresentation (Count N), 6, Defendants in this action are separate corporate entities, 7, Plaintiff's complaint ascribes different functions to each defendant. 8. Plaintiff's complaint ascribes to both defendants a series of acts and omiSSIOns. 9, Plaintiff's complaint fails to state which defendant took the actions that are ascribed to both defendants, 10. Without a more specific pleading, that identifies which entity committed the acts or made the omissions about which plaintiff complains, Lemoyne is not able to plead or respond to plaintiff's complaint, nor is it able to determine what defenses it may have to assert in this matter. -2- CERTIFICATE OF SERVICE I hereby certify that on December 5, 2003, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: Joseph F. Roda, Esquire Roda & Nast, p,c. 801 Estelle Drive Lancaster, PA 17601 Samuel L. Andes, Esquire 525 North Twelfth Street P,O, Box 168 Lemoyne, PA 17043 t2-- THOMAS B, SCHMIDT, III (19196) -o~ Cl 0 W -f1 D .-:! ''1 _J.. -r-, mr";-! c, .",;:::;"..: 2-"1 i'rl 65~; I ;~.l () , L ~6 :::1<,,) -n ::?~~ ~8 ,~ ~ :.:'5fn J;~ --1 <:.,) 'l.~ .&.- ~ /I BOROUGH OF CAMP HILL, Plaintiff vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOROUGH OF LEMONYE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants CIVIL ACTION - LAW NO, 03-5591 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE AND NOW comes the Municipal Authority of the Borough of Lemoyne, one of the Defendants in this matter (and hereinafter referred to as "Authority"), and files the following Preliminary Objection to the Plaintiff's Complaint: 1, The Defendants in this action are separate corporate entities. 2. This dispute arises out of the operation of a waste water treatment plant located in Lemoyne ("Plant") and the charges and payments for the cost of operating the Plant, PETITION FOR MORE SPECIFIC PLEADING 3, The Authority does not operate the Plant and, at no time during its existence, has the Authority operated the Plant, 4, The Plant is operated by the other Defendant, the Borough of Lemoyne, The Borough of Lemoyne provides all personnel to staff and operate the Plant, pays all utilities, labor, and other expenses to operate the Plant, and exercises unilateral control over the operation of the Plant, These arrangements have been in effect since the construction of the present Plant in the early 1970s, 5, The Authority has no employees and has had no employees at any time relevant to this action and certainly not since the present Plant commenced operation in the early 1970s, 6. In this action, Plaintiff complains that it was improperly charged and overcharged its agreed share of the cost of operating the Plant. II 7, In its Complaint, in support of its claims against the Defendants, the Plaintiff ascribes to both Defendants a series of acts and omissions, Those acts include, by way of example, statements and misrepresentations about the existence of certain metering devices, the preparation and submission to Plaintiff of false and improper billing for the cost of operating the Plant, and misrepresentations regarding the cost of operation of the Plant, 8. Count I of Plaintiff's Complaint is based upon a theory of contract and, in support of that Count, Plaintiff avers, in Paragraph 67 of its Complaint, that Defendants improperly assessed Plaintiff charges unrelated to the operation of the Plant, Plaintiff's Complaint fails to state which Defendant made such improper assessment or what individual or agent of either Defendant made such improper assessment, 9, Count II of Plaintiff's Complaint is based upon a theory of unjust enrichment, The Complaint, however, fails to state how the Authority, which is not responsible for and does not pay the costs of, operation of the Plant, benefitted from the improper billing of which Plaintiff accuses the Defendants, 10, Count III of Plaintiff's Complaint asserts a claim based upon promissary estoppel and states, in Paragraph 75 of the Complaint, that Defendants misled Plaintiff by presenting false invoices for monthly expenses for the operation of the Plant, Plaintiff's Complaint, however, fails to identify which Defendant, or which individual or agent for either Defendant, submitted such invoices. 11, Count III of Plaintiff's Complaint asserts a claim based upon a theory of negligent misrepresentation and claims, in Paragraph 79, that the Defendants made material misrepresentations to Plaintiff regarding the presence of metering devices and the assessment of operating costs for the Plant. Plaintiff's Complaint, however, fails to identify which Defendant or which individual or agent of either Defendant made such misrepresentations, 12, The Defendants are not the same entity, are not identical, and do not have identical or parallel interests in this litigation. 13. Without a more specific pleading, which specifically identifies who, or at least which entity, committed the acts or made the omissions of which Plaintiff complains, the Authority is not able to intelligently plead or respond to Plaintiff's Complaint, Without a more specific pleading, the Authority is not able to determine what defenses it may have available to assert in this matter. II 14, The Authority believes that, if this matter is properly pleaded so that the entities or persons taking the actions or making the omissions of which Plaintiff complains, the Authority will be excused from this litigation or at least from one or more of the Counts raised by Plaintiff in its pleading, either because Plaintiff will recognize that the Authority has no liability for such claims or because the Court will dismiss those claims upon a review of them once properly pleaded, 15, Without a proper and more specific pleading in this matter, Defendant is prejudiced in its ability to defend itself from these claims, WHEREFORE, the Municipal Authority of the Borough of Lemoyne requests this Court to direct Plaintiff to file a more specific pleading in which it specifically identifies the acts or omissions of the Authority of which the Plaintiff complains. ~~~ Attorney for Defendant Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 II CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon counsel for the Plaintiff and Defendant herein by regular mail, postage prepaid, addressed as follows: Thomas B, Schmidt, III, Esquire Pepper Hamilton LLP 200 One Keystone Plaza North Front & Market Streets P.O, Box 1181 Harrisburg, PA 17108-1181 Joseph F, Roda, Esquire Roda & Nast, P.C, 801 Estelle Drive Lancaster, PA 17601 Date: 26 November 2003 f'vJ11JAlm,~ ~arklns Secretary for Samuel L. Andes ~ 0 0 w ;-, ~ '... ~\" 'r 9;: n fiii'!J ~~.:. 1 :g~ C5 ':3 ~~ -0 r.i:ii :x ~Fri c..J .. N ~ C) RODA & NAST, P.C. Joseph F. Roda, Esquire Atty. I.D. No. 20615 Jennifer S. Snyder, Esquire Atty, I.D. No. 89495 801 Estelle Drive Lancaster, PA 17601 (717) 892-3000 BOROUGH OF CAMP HILL, ATTORNEYS FOR PLAINTIFF, Borough of Camp Hill Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. DOCKET NO. 03-5591 BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, CIVIL ACTION-LAW Defendants : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF LEMOYNE Response to objection pursuant to Pa. R.C.P, 1028(a)(2) 1. Admitted, 2, Admitted, 3, Denied. Paragraphs 13-25 of Plaintiffs Complaint do not contain scandalous or impertinent matter that is immaterial to Plaintiffs claims, but describe events that are significant to this case, Specifically, paragraphs 13-25 explain the circumstances under which Plaintiff first began to suspect that it was being overcharged for bills in connection with the Plant and Plaintiffs attempts to investigate those overcharges, Plaintiff further denies this objection to the Complaint on the ground that the Borough of Lemoyne fails to state with any specificity what is scandalous, impertinent or immaterial about paragraphs 13-25, In the absence of any explanation for Lemoyne's objection, Plaintiff cannot respond with any further specificity than it has, above, WHEREFORE, Plaintiff respectfully requests that this Court deny the Borough of Lemoyne's request to strike paragraphs 13,25 of the Complaint, Response to obiection pursuant to Pa. R.C.P, I028(a)(3) 4. Admitted, 5, Admitted, 6, Admitted upon information and belief, 7, Admitted to the extent that Plaintiffs Complaint describes Defendant Municipal Authority of the Borough of Lemoyne ("Authority") as a Pennsylvania municipal authority organized under the Municipal Authorities Act of 1945, as amended, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania; and describes Defendant Borough of Lemoyne ("Lemoyne") as a municipal corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania, Otherwise, this paragraph is denied in that the Complaint is a written document that speaks for itself, 8, Admitted, 967JjIJ2/9/03 2 9, Admitted in part and denied in part, It is admitted that the Complaint ascribes certain acts to both Defendants, but it is denied that the Complaint ascribes all actions to both defendants, 10, Denied, Defendants have knowledge about which Defendant committed the acts or made the omissions contained in the Complaint, and despite Plaintiffs efforts to resolve this dispute before filing suit, Plaintiff has not been given access to all of the information necessary to discern what actions were taken or omissions were made by which Defendant, See Complaint ~~ 13,25, At a minimum, each Defendant knows the actions that it did or did not take, and each Defendant can thus answer the Complaint, admitting or denying each paragraph as to its conduct, Each Defendant may know about the other's conduct, and can respond accordingly if it does, If one Defendant is unaware of whether the other took certain actions or made certain omissions, it may simply state that in its answer, It is because Plaintiff has been refused access to all of the information pertinent to this dispute that Plaintiff cannot state with greater specificity what actions each Defendant took or what omissions each Defendant made, Plaintiff, has, however, provided sufficiently detailed information to put each Defendant on notice of the claims and to enable each Defendant to provide a meaningful response, Plaintiff is not required to plead evidence and is likewise not required to plead in any greater detail than it has, particularly when Plaintiff has been denied the access to the information that would allow it to plead more specifically, 9671H 12/9/03 3 WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Borough of Lemoyne's request to dismiss Plaintiffs Complaint or, in the alternative, direct Plaintiff to file a more specific pleading, Respectfully submitted, JENNIFER S, SNYDER Atty, I.D, No, 89495 RODA & NAST, P,C, 801 Estelle Drive Lancaster, P A 17601 (717) 892,3000 Attorneys for Plaintiff DATED: December....l.O..-, 2003 96715.112/9/Q3 4 CERTIFICATE OF SERVICE I hereby certify that I have today caused to be served via first class mail a copy of the foregoing Plaintiff's Response to Preliminary Objections of Defendant the Borough of Lemoyne on the following: For the Municipal Authority of Lemoyne: Samuel L, Andes, Esquire 525 North Twelfth Street P,O, Box 168 Lemoyne, PA 17043 For the Borough of Lemoyne: Thomas B, Schmidt, III, Esq, Pepper Hamilton LLP 200 One Keystone Plaza North Front & Market Streets P,O, Box 1181 Harrisburg, PA 17108-1181 ~ /J/.;!~ Kristen M, Leddy / Legal Assistant . ,.. DATED: December 10, 2003 !/6715.J/2/JO/03 5 i1 r o ~ "'1:11"'" n'~ :'"'~ 2'-; t~ i~~" C::C 'Z::--; ):,< ~ a w = I~'" C') o "n .,:~ -D ::Ie '-d :::> c,., :~t-i ,(''> .')(t1 :-::.\ ?D -< RODA & NAST, P.C. Joseph F. Roda, Esquire Atty. I.D. No. 20615 Jennifer S. Snyder, Esquire Atty. I.D. No, 89495 801 Estelle Drive Lancaster, PA 17601 (717) 892-3000 BOROUGH OF CAMP HILL, ATTORNEYS FOR PLAINTIFF, Borough of Camp Hill Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. DOCKET NO. 03-5591 BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, CIVIL ACTION-LAW Defendants : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE 1. Admitted upon information and belief, 2, Admitted, 3, Denied, The term "operates" is vague and ambiguous, In addition, this paragraph avers a fact not established of record in this case, and is thus an improper preliminary objection, 4, Admitted in part and denied in part, It is admitted upon information and belief that Defendant The Borough of Lemoyne operates the Plant and provides personnel to staff and operate the Plant, After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether the Borough of Lemoyne has sole responsibility for providing all personnel to staff and operate the plant, and this is thus denied, It is also denied that the Borough of Lemoyne pays all utilities, labor, and other expenses to operate the Plant, as Plaintiff is responsible for one-half of the legitimate utility, labor and other Plant expenses, Mter reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether "these arrangements" have been in effect since the early 1970s, and this is thus denied, Finally, to the extent that this paragraph suggests that the Authority plays no role in the operation of the Plant, Plaintiff incorporates by reference Plaintiffs response to the preceding paragraph, 5, Denied, Mter reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether the Authority now has or has ever had any employees at any time relevant to this action or since the early 1970's, 6, Admitted, 7, Admitted, 8, Admitted, 9, Admitted, 10, Admitted, 11. Admitted, 12, Admitted in part and denied in part, It is admitted upon information and belief that Defendants are not the same entity and are not identical, It is 2 denied that Defendants do not have any interests in this litigation that are identical or parallel. 13, Denied, Defendants have knowledge about which Defendant committed the acts or made the omissions contained in the Complaint, and despite Plaintiff's efforts to resolve this dispute before filing suit, Plaintiff'has not been given access to all of the information necessary to discern what actions were taken or omissions were made by which Defendant, See Complaint '\1'\113-25, At a minimum, each Defendant knows the actions that it did or did not take, and each Defendant can thus answer the Complaint, admitting or denying each paragraph as to its conduct, Each Defendant may know about the other's conduct, and can respond accordingly if it does, If one Defendant is unaware of whether the other took certain actions or made certain omissions, it may simply state that in its answer, Based on its knowledge of its conduct, each Defendant is likewise able to discern the defenses that are available to it in this matter, It is because Plaintiff'has been refused access to all ofthe information pertinent to this dispute that Plaintiff cannot state with greater specificity what actions each Defendant took or what omissions each Defendant made, Plaintiff, has, however, provided sufficiently detailed information to put each Defendant on notice of the claims and to enable each Defendant to provide a meaningful response, Plaintiff is not required to plead evidence and is likewise not required to plead in any greater detail than it has, particularly when Plaintiff has been denied access to the information that would allow it to plead more specifically, 3 14. Denied in that Plaintiffis unable to ascertain what the Authority "believes," and further denied for the reasons set forth in paragraph 13, above, In addition, as explained in the preceding paragraph, Plaintiff is unable to plead more specifically, Based on the information Plaintiff has obtained thus far, the Authority is a proper defendant in this case, If, after discovery in this case, it appears to Plaintiff or to the Court, on proper motion, that the Authority should be excused or dismissed from one or more of the Counts in Plaintiff's Complaint, such excuse or dismissal can occur at the appropriate time, At this preliminary stage, however, requiring Plaintiff to plead more specifically will not reveal the extent of the Authority's liability, 15, Denied for the reasons set forth in Paragraphs 13 and 14, above, WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Petition for More Specific Pleading, Res ectfully sub~ ./ ~y~ ,RODA tty,1. ,No, 20615 JENNIFER S, SNYDER Atty, 1.D, No, 89495 RODA & NAST, P,C, 801 Estelle Drive Lancaster, P A 17601 (717) 892,3000 DATED: December~, 2003 Attorneys for Plaintiff 4 CERTIFICATE OF SERVICE I hereby certify that I have today caused to be served via first class mail a copy of the foregoing Plaintiff's Response to Preliminary Objections of Defendant the Municipal Authority of Lemoyne on the following: For the Municipal Authority of Lemoyne: Samuel L, Andes, Esquire 525 North Twelfth Street P,O, Box 168 Lemoyne, PA 17043 For the Borough of Lemoyne: Thomas B, Schmidt, III, Esq, Pepper Hamilton LLP 200 One Keystone Plaza North Front & Market Streets P,O, Box 1181 Harrisburg, PA 17108,1181 ~ ~ .;1~_ Kristen M, Leddy ) Legal Assistant DATED: December 10, 2003 5 {S ;(' 2 0 0 W ~n S ~ --:J ~~ rrJ .., L~ ,~..., in ~?: /~ 't'" '? cr~) -~ , -' C~: ( --n " )'-_: :-.0: ,~ ('-) ,- , m ;.- ~..,~ ':-? '--~l -'" :'"J ::> :0 -< w ,< Plaintiff IN THE COURT OF COMMON LEAS CUMBERLAND COUNTY, PENN~ LVANIA DOCKET NO, 03,5591 CI IL CIVIL ACTION - LAW I JURY TRIAL DEMANDE' BOROUGH OF CAMP HILL, v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Joseph F, Roda, Esquire, Jennifer S. Sny er, Esquire, and Roda & Nast, P,C" as counsel for Plaintiff in the above captioned actio~ RODA & NAST, P.C, DATE:~ ------------- 801 Estelle Drive Lancaster, PA 17601 (717) 892,3000 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen M, Greecher, Jr. and Tucker Arens erg, P,C, as counsel for Plaintiff in the above captioned action, tephen M, Greec ef, Jr. Atty, /.0, #PA-36803 111 North Front Street p, 0, Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE:? bl/()~')- 76592,1 ' . I ____ CERTIFICATE OF SERVICE ,;(;;, ,yO AND NOW, this day of MARCH, 2005, I, Jacquelyn Zettlemoyer, S retary to Stephen M, Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P,C., attorne for Plaintiff, hereby certify that I have this day served the within document by depositing true and correct copy of the same in the United States Mail, first class, postage prepaid, at H risburg, Pennsylvania, addressed as follows: Thomas B, Schmidt, III, Esquire Pepper Hamilton LLP p, O. Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire p, O. Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE Joseph F. Roda, Esquire Jennifer S, Snyder, Esquire Roda & Nast, P,C, 801 Estelle Drive Lancaster, PA 17601 ~r:;;r'- ~ Jacq ely Zettlemoy 76710,1 "1": n r...;> '-:7""'? ;j4 ::r.: """ ?O N W ,', -< -,I o ...., 'Jl" nlr~ -nf'n :'-1Q '--~() -""I' :"--11 c~r-) ")1>' , , ',,--, -',." ,~,,~ f') CJ:J .>:: Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 03,5591 CIVIL CIVIL ACTION, LAW JURY TRIAL DEMANDED BOROUGH OF CAMP HILL, v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants MOTION FOR LEAVE TO AMEND COMPLAINT 1, Plaintiff, Borough of Camp Hill (hereinafter "Camp Hill"), has instituted suit against Defendants, Borough of Lemoyne and The Municipal Authority of the Borough of Lemoyne. 2, As more fully described in the Complaint, Camp Hill and the Defendants, Borough of Lemoyne and The Municipal Authority of the Borough of Lemoyne, have entered into various agreements with respect to the Lemoyne Waste Water Treatment Plant and Spangler Road Pump Station, 3, As set forth in the Complaint, Camp Hill contends that Defendants have overcharged Camp Hill for operating costs with respect to the Waste Water Treatment Plant and have failed to share revenues received for processing septage from private haulers with Camp Hill and have failed to reduce the operating costs charged to Camp Hill for the additional costs incurred in processing septage received from private haulers, 4, On behalf of Camp Hill, a review of records from the Borough of Lemoyne and The Municipal Authority of the Borough of Lemoyne has been carried out. This review can also be referred to as a "preliminary audit." 5, As is set forth in the Complaint, a preliminary audit was carried out only after Camp Hill made considerable efforts to obtain information from the Defendants, as set forth at Paragraphs 13-25 of the Complaint, which paragraphs are incorporated herein by reference. 6, The review and analysis of Defendants' records have continued subsequent to filing suit in this case. 7. At this point Plaintiff is requesting leave to amend the Complaint as set forth in the verified Amendment attached hereto as Exhibit "A" in order to: a, provide more specificity as to the items of overcharges and damages at issue in this case; b, provide more detail on the calculation of certain items of overcharges and damages; c. update the amount of damages being claimed; d, set forth items of overcharges and damages under current investigation; and e, make a claim for overcharges of operating costs subsequent to 2001 and for the receipt of payments from private waste haulers for accepting and treating waste from private waste haulers subsequent to 2001, without sharing revenues received with Camp Hill and failing to reduce the operating costs charged to Camp Hill for the additional costs incurred in processing the septage received from the private waste haulers, 8, Camp Hill also seeks to amend the Complaint to add to the Complaint Paragraphs 87 through 111, which include Count V of the Complaint, all as set forth in the Amendment to the Complaint that is attached hereto as Exhibit "A", 9, Paragraphs 87 through 111 and Count V of the Complaint set forth Camp Hill's claims for payments due to Camp Hill for operating costs of the Spangler Road Pumping Station, As is set forth in Paragraphs 87 through 111 and Count V of the Complaint, Camp Hill is entitled to be reimbursed for 50% of the operating costs of the Spangler Road Pump Station. -2- Defendants have failed to reimburse Camp Hill for the 50% share of the operating costs of the Spangler Road Pump Station for 2002, 2003, and 2004, As set forth in the Amendment to the Complaint attached hereto as Exhibit "A", the operating expenses for 2002 were invoiced to the Borough of Lemoyne on March 31, 2003, the operating expenses for 2003 were invoiced to the Borough of Lemoyne on April 27, 2004, and the operating expenses for 2004 were invoiced to the Borough of Lemoyne on May 16, 2005, 10, Pursuant to Pa.R.C.P. 1033 and applicable case law, leave to amend should be liberally granted, 11, The present case is not ready for trial, the parties have been engaging in written discovery, and on behalf of Plaintiff, records have been under review, Depositions have not yet been taken, 12. Defendants will not be prejudiced by granting the proposed amendment to the Complaint. 13. The proposed amendments to Paragraphs 26,35,42,44,54,58, and 59 do not add any new causes of action to this case. The aforesaid paragraphs: a. provide more specificity as to the items of overcharges and damages at issue in this case; b, provide more detail on the calculation of certain items of overcharges and damages; c, update the amount of damages being claimed; d, set forth items of overcharges and damages under current investigation; and e, make a claim for overcharges of operating costs subsequent to 2001 and for the receipt of payments from private waste haulers for accepting and treating waste -3- from private waste haulers subsequent to 2001, without sharing revenues received with Camp Hill and failing to reduce the operating costs charged to Camp Hill for the additional costs incurred in processing the septage received from the private waste haulers, 14, The proposed amendments to Paragraphs 26, 35, 42, 44, 54, 58, and 59 prevent prejudice to the Defendants by further elucidating Plaintiffs claim and by providing updated information, 15, The claims made with respect to the Spangler Road Pump Station set forth at Paragraphs 87,111 of the Amendment to the Complaint attached hereto as Exhibit "A" do set forth a new cause of action. 16, The cause of action specifically plead is for breach of contract. The statute of limitations is no less than 4 years, which 4-year period did not begin to run until after March 31, 2003, WHEREFORE, it is respectfully requested that the court grant Plaintiffs motion, whereby Plaintiff is granted leave to file the Amendment to the Complaint that is attached hereto, .~- G !~k~~ B' ~ St . Greecn , r. Ally, 1.0, #PA-36803 111 North Front Street p, 0, Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: 79666,1 -4- Tucker Arensberg, P,C, BY: Stephen M. Greecher, Jr, (1.0, No, PA,36803) ATTORNEYS FOR PLAINTIFFS 111 North Front Street p, 0, Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 BOROUGH OF CAMP Hill, Plaintiff v, BOROUGH OF lEMOYNE and' THE MUNICIPAL AUTHORITY OF THE BOROUGH OF lEMOYNE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 03-5591 CIVil CIVil ACTION - LAW JURY TRIAL DEMANDED CIVIL ACTION COMPLAINT "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 without you and a judgment may be entered against you buy 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 of 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 BEWW, 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, LAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 - Toll Free (800) 990-9108 80268,' "AVISO" "Le ban demandado en corte. Si usted desea defender contra las demandas dispuestas en las paginas siguientes, usted debe tomar 1a aceion en el plazo de veinte (20) dfas despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente {} y arcbivando en escribir con la corte 5US dcfensas u objeciones a Ias demandas dispuestas contra usted eI abogado Ie advierte que que :;1 llsted no puede hacer as( que el caso puede proceder sin llsted y un juicio se puede incorpora.r contra usted campra la corte sin aviso adicional para cualquier djnero demandado en la queja {} para cualquier otra demanda 0 relevacion pedida par el demandante. Usted puede perder el dinero 0 1a caracteristica de otra endereza importante a usted. USTED DEBE LLEV AR ESTE PAPEL SU ABOGADO INMEDIA T AMENTE, SI USTED NO HACE QUE UN ABOGADO VA Y A A 0 LLAME POR TELEFONO L. OFICINA DISPUEST A ABAJO, EST A OFICINA PUEDE PROVEER DE USTED LA INFORMACI6N SOBRE EMPLEAR A UN ABOGADO, SI USTED NO PUEDE PERMlTlRSE AL HIRE A UN ABOGADO, EST A OFICINA PUEDE PODER PROVEER DE USTED LA INFORMAC16N SOBRE LAS AGENCIAS QUE LOS SERVlCIOS JURiDlCOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGlBLES EN UN HONORARIO REDUCIDO o NINGUN HONORARJO SERVIClO DE REFERENClA LEGAL Cumberland County Bar Association 32 South Bedford Carlisle, Pennsylvania 17013 (717) 249-3166 - Toll Free (800) 990-9108 EXHIBIT i ~ "An Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 03-5591 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED BOROUGH OF CAMP HILL, v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants AMENDMENT TO COMPLAINT The Paragraphs set forth below of the Complaint heretofore filed in this action are amended as set forth herein, and the Complaint is further amended by adding thereto Paragraphs 87 through 110, Overcharaes of Salary and Related Benefits and Taxes 26. Defendants' financial records show that between 1992 and 2001, Defendants have overbilled or improperly charged Plaintiff $277,560,00 for salaries, benefits, and payroll taxes by improperly charging to the plant: (a) The salary of Lemoyne's secretary, who does no work for the plant; (b) The full salary of Lemoyne Plant Manager, Jack O'Neill, who also serves as Lemoyne's Health Inspector and oversees Lemoyne's Sewer Collection System; (c) The salaries ofthe plant operators who also provide services to Lemoyne's Sewer Collection System by over allocating said salaries to the Plant; and (d) Employee benefits and payroll taxes not properly attributable to the plant, which employee benefits and payroll taxes include FICA, unemployment compensation, workers' compensation, and employee benefits. Overcharae for Electricity 35, To determine the amount of electricity costs overcharged to Plaintiff, Plaintiff calculated the kilowatt hours used in the highway garage as a percent of total kilowatt hours after Defendants' new meter was installed and applied this percentage to the total electricity charged to the treatment plant for 1992 through 2001 and determined that Defendants overcharged Plaintiff $14,592.47 for electric service to the plant from 1992 through 2001, OvercharQes for Vehicle-Related Costs and Insurance Policv Dividend 42, In at least some years, Defendants also did not credit Plaintiff with refunds for insurance premiums previously billed to Plaintiff and for the 1995,96 premiums on the Pennsylvania National insurance policy did not properly credit Plaintiff for the dividend received on the policy on or about September 4, 1997, 44, Upon information and belief and after review of insurance bills and fuel expenditures, Defendants have overcharged Plaintiff $17,799.00 between 1992 and 2001 for vehicle insurance and fuel costs and failed to credit Plaintiff $1 ,464.00 for a dividend on the Pennsylvania National insurance policy, Water Expenses 54. Based on water bills and water meter readings, Defendants have overcharged Plaintiff for water usage at the plant. Between 1992 and 2001, Plaintiff believes it was overcharged $110,00 for water usage. Preliminary Results of Audit 58, Based on the information that Defendants have provided to date, however, as reflected above, Plaintiff has determined that between 1992 and 2001, Defendants overcharged Plaintiff $772,015.00 for plant operating costs, not including inflation or interest, which amount includes sums charged or billed to Plaintiff and 50% of the amount paid Defendants by private waste haulers between 1992 and 2001, 59, Based on its investigation, Plaintiff believes and therefore avers that Defendants have also overcharged Plaintiff for plant operating costs, in an amount yet to be determined, for -2, years before 1992, and that Defendants have overcharged Plaintiff a total amount substantially in excess of $1,000,000. Further, certain other overcharges are continuing under investigation, including certain refunds and credits, pension expenses included in employee benefits, unemployment compensation expenses, software innovators invoices and capital expenditures paid by the Municipal Authority of the Borough of Lemoyne that have been reimbursed by Camp Hill that relate to improvements to the Lemoyne collection system, Additionally, a claim is made herein to the extent that subsequent to 2001 Defendants continue to improperly charge Plaintiff for operating costs and continue to receive payments from private waste haulers for accepting and treating waste from private waste haulers, without sharing revenues received with Camp Hill and failing to reduce the operating costs charged to Camp Hill for the additional costs incurred in processing the septage received from the private waste haulers, Spangler Road Pump Station 87, Plaintiff incorporates by reference Paragraphs 1-87 of Plaintiff's Complaint, as amended, as though fully set forth herein. 88, In addition to the Plant, the 1969 Agreement called for the construction of a pump station at or near existing manhole number 415 in the Borough of Camp Hill. 89. Under the 1969 Agreement, operating costs for the pump station were the sole responSibility of Camp Hill, 90, When the 1969 Agreement was amended in 1972, the parties agreed to "construct a new sewage pump station at a location to enable said station to pump the sewage from all of the users of the boroughs," 91, Under the 1972 Agreement, at paragraph 6, operating costs for the pump station were to be shared equally between Plaintiff and "Owner," As set forth in the 1972 Agreement, the term "Owner" referred to The Municipal Authority of the Borough of Lemoyne, -3- 92. When the Agreement was amended again in 1983, it provided for the construction of a new pump station at or near Spangler Road ("Spangler Road Pump Station"). 93, The 1983 Agreement provided that all provisions of the 1969 and 1972 Agreements remained in effect unless expressly modified by the 1983 Agreement. 94. Accordingly, under the 1983 Agreement, costs for the Spangler Road Pump Station were shared equally between Plaintiff and "Owner." 95, When the Agreement was amended again in 1985, it similarly provided for a pump station at or near Spangler Road, 96, The 1985 Agreement replaced and supplanted entirely the 1983 Agreement, but retained in full force and effect all provisions of the 1969 and 1972 Agreements, unless expressly modified by the 1985 Agreement. 97, Accordingly, costs for the Spangler Road Pump Station were to continue to be shared equally between Plaintiff and "Owner." 98, Consistent with this, Plaintiff has historically paid 1 00% of the operating costs for the Spangler Road Pump Station and submitted an invoice for its 50% share of those costs that are the responsibility of the "Owner." 99, Historically, Plaintiff has submitted said invoices to Defendant Lemoyne and until recently, Defendant Lemoyne has paid said invoices, 100, On March 31, 2003, Plaintiff mailed to Defendant Lemoyne an invoice in the amount of $31 ,384,88, along with supporting documentation, for Lemoyne's share of the 2002 operating costs for the Spangler Road Pump Station. 101, On April 27, 2004, Plaintiff sent Defendant Lemoyne an invoice in the amount of $33,950.75, alon9 with supporting documentation, for Lemoyne's share of the 2003 operating costs for the Spangler Road Pump Station, ,4- 102, Plaintiff also wrote to Lemoyne on several occasions in 2004 requesting payment of the 2002 and 2003 invoices for the Spangler Road Pump Station. 103, On May 16, 2005, Plaintiff sent Defendant Lemoyne an invoice in the amount of $37,081,08 along with supporting documentation for the 2004 operating costs for the Spangler Road Pump Station, 104. Despite Plaintiff's repeated requests to Defendant Lemoyne to pay the invoices, Lemoyne has not paid the invoices, forcing Plaintiff to pay 100% of the operating costs for the Spangler Road Pump Station, COUNT V Camo Hill v. Borouah of Lemoyne and The Municioal Authority of the Borouah of Lemovne 105, The averments of Paragraphs 1 through 104 of the within Complaint are incorporated herein by reference as if fully set forth, 106. Under the terms of the 1985 Agreement, Camp Hill and "Owner" are each responsible for 50% of the operating costs for the Spangler Road Pump Station. Camp Hill has submitted invoices for the "Owner's" share of the operating costs of the Spangler Road Pump Station to Defendant Lemoyne and Defendant Lemoyne has previously paid said invoices, 107, Accordingly, Plaintiff has provided Defendant Lemoyne with invoices for 50% of the 2002, 2003, and 2004 operating costs for the Spangler Road Pump Station, 100% of which Plaintiff has paid, 108, Defendant Lemoyne has been assigned, assumed or otherwise undertaken the obligations of the "Owner" for the Owner's 50% share of the operating costs of the Spangler Road Pump Station, ,5, 109. Defendant Lemoyne has improperly failed to pay the 2002,2003, and 2004 invoices for its share of the operating costs for the Spangler Road Pump Station, in direct and material breach of the 1985 Agreement. 110, As the "Owner," Defendant Authority remains liable pursuant to the above referenced agreements for 50% of the operating costs for the Spangler Road Pump Station and Defendant Authority has failed to make payment for its share of the 2003, 2004, and 2005 operating costs of the Spangler Road Pump Station, 111. As a direct and proximate result of the breaches by Defendants, Plaintiff has incurred monetary damages of $102,416.71 plus interest, which continues to accrue on the unpaid balance, WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendant Lemoyne and Defendant Authority, jointly and severally, in an amount in excess of $102,416,71, together with interest, counsel fees, and costs, and such other relief as is proper and just. Respectfully submitte t M, Gr Attorney's 1.0, 0, PA-36803 111 North Front Street P. 0, Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: 79460,1 [{/~>- -6- VERIFICATION I, JEFFREY F, SMITH, in my capacity as President of the Borough Council of the Borough of Camp Hill, Plaintiff in the foregoing action, do hereby certify that I am authorized to execute documents on behalf of the Borough of Camp Hill, and acknowledge that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief, I understand that any false statements herein are subject to the penalties of 18 Pa, C,S.A. Section 4904, relating to unsworn falsification to authorities, Camp Hill Borough Council CERTIFICATE OF SERVICE AND NOW, this J..j. M day of AUGUST, 2005, I, Jacquelyn Zettlemoyer, Secretary to Stephen M, Greecher, Jr" Esquire, for the law firm, Tucker Arensberg, P,C" attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Thomas B, Schmidt, III, Esquire Pepper Hamilton LLP p, 0, Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire p, 0, Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE 76710,1 ~~~ Jacque yn lemoyer y n~O RECEIVEb.UG v. 2005 BOROUGH OF CAMP HILL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 03-5591 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants RULE TO SHOW CAUSE AND NOW, this --1ii day of ~, 2005, upon consideration of the within Motion for Leave to Amend Complaint, a Rule is hereby issued to show cause why the Plaintiff should not be granted leave to file the Amendment to the Complaint as attached to the Motion. Rule returnable ~o ) days from service of the Rule. BY THE COURT: 79666,1 J, WN^lASNN3d AlNnm nt;i'>F18V'1no o ~ :6 WV 9- any souz AW10NOH108d 3Hl dO 301::!30-0318 - BOROUGH OF CAMP HILL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 03-5591 CIVIL CIVIL ACTION - LAW v. BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants JURY TRIAL DEMANDED MOTION TO MAKE RULE ABSOLUTE 1, On August 4, 2005, Plaintiff filed a Motion for Leave to Amend Complaint. 2. A Rule to Show Cause was issued by the Honorable J, Wesley Oler, Jr, on August 7,2005, which was served on the parties, by mail by the Prothonotary, according to the docket in this case, on August 8, 2005, A true and correct copy of the Rule to Show Cause is attached hereto as Exhibit "A". 3. Defendants, by counsel, have advised Plaintiffs counsel that no opposition is to be filed to the Motion for Leave to Amend Complaint. 4, Neither Defendant has filed a response to the Rule to Show Cause and the Motion to Amend Complaint. 5, At this time the Rule should be made absolute and Plaintiff should be granted leave to file the Amendment to the Complaint. WHEREFORE, it is hereby requested that the Court issue an order making the Rule of August 7, 2005 absolute, granting Plaintiff leave to file the Amended Complaint. ep . Greecher, Jr. Atty, 1.0, #PA-36803 111 North Front Street p, 0, Box 889 Harrisburg, PA 17108,0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: ~ /-:; 0 /c; S/ RECEIVED A\JG 04 1nn~ Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BOROUGH OF CAMP HILL, v, DOCKET NO, 03-5591 CIVIL BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this 7 -fh day of 11 1 ~ I [) 1: ,2005, upon consideration of the within Motion for Leave to Amend Complaint, a Rule is hereby issued to show cause why the Plaintiff should not be granted leave to file the Amendment to the Complaint as attached to the Motion, Rule returnable :w ) days from service of the Rule, BY THE COURT: 79555,1 J, TRUE COpy FROM RECORD In Testimony whereof, 1 here unto set my hagd and the seal of said Court t Carlisle, ?S. ~....,Q. nday, of...... ,..,..,.:" ,~Ql. .~..r... ...._...~ , . .., protho ary EXHIBIT I "A" CERTIFICATE OF SERVICE AND NOW, this 90 de day of AUGUST, 2005, I, Jacquelyn Zettlemoyer, Secretary to Stephen M, Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P,C" attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Thomas B. Schmidt, Ill, Esquire Pepper Hamilton LLP P. 0, Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire P. 0, Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE ~~ ~~~ Jacquely ettlemoyer 76710,1 (') ,...> 0 """ ~ ...-:..^:.l -n <J' 7'"" c: e,;:-) c) 0 v -",. 0) 1.....1 CO - ---- RECEIVED t.UG 30 ZOOS (), /1" BOROUGH OF CAMP HILL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 03-5591 CIVIL v. BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this -3.kt day of ---.!Q v <> , 2005, the Rule to Show Cause dated August 7, 2005, is made absolute and Plaintiff is granted leave to file the Amendment to the Complaint attached to Plaintiffs Motion for Leave to Amend Complaint, which Motion was filed August 4, 2005, BY THE COURT: J, 80969,1 \'oS DC\/O V1~,i~ltl-l \c::'~i AlNn~'~' J l~;' .,'~'".~ --,'f,i(1'"'1 "H\V ~ 1 : I I~d 18 ~nv SOOZ Ai:lV10NOHlCl::!d 3111 :10 381::130-(811.:1 " Tucker Arensberg, P.C, By: Stephen M. Greecher, Jr. (I.D. No, PA-36803) ATTORNEYS FOR PLAINTIFFS 111 North Front Street p, O. Box 889 Harrisburg, PA 17108-0889 (717) 234,4121 BOROUGH OF CAMP HILL, Plaintiff v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 03-5591 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED CIVIL ACTION AMENDED COMPLAINT "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 without you and a judgment may be entered against you buy 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 of other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR lAWYER AT ONCE,IFYOUDONOTHAVEAlAWYERGOTOOR TELEPHONE THE OFFICE SET FORTH BEWW, THIS OflnCECANPROVIDEYOU~INFORMATION ABOUTIDRINGAlAWYER.IFYOUCANNOT 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, lAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 - Toll Free (800) 990-9108 80268,1 "AVISO" "Le han demandado en corte. Si usted desea defender contra las demandas dispuestas en las paginas siguientes, usted debe tomar la acci6n en el plazo de veinte (20) dias despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente 0 y archivando en escribir con la corte sus defensas u objeciones a las demandas dispuestas contra usted el abogado Ie advierte que que si usted no puede hacer as! que el caso puede proceder sin usted y unjuicio se puede incorporar contra usted compra la corte sin aviso adicional para cualquier dinero demandado en la queja 0 para cualquier otra demanda 0 relevaci6n pedida por el demandante. Usted puede perder el dinero 0 la caracterfstica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDlATAMENTE, SI USTED NO HACE QUE UN ABOGADO VA Y A A 0 LLAME POR TELEFONO La OFICINA DISPUESTA ABAJO, EST A OFICINA PUEDE PROVEER DE USTED LA INFORMACI6N SOBRE EMPLEAR A UN ABOGADO, SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACI6N SOBRE LAS AGENClAS QUE LOS SERVICIOS nJRiDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO o NINGUN HONORARIO SERVIClO DE REFERENClA LEGAL Cumberland County Bar Association 32 South Bedford Carlisle, pennsylvania 17013 (717) 249-3166 - Toll Free (800) 990-9108 Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO, 03,5591 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED BOROUGH OF CAMP HILL, v, BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants AMENDMENT TO COMPLAINT The Paragraphs set forth below of the Complaint heretofore filed in this action are amended as set forth herein, and the Complaint is further amended by adding thereto Paragraphs 87 through 110, Overcharaes of Salary and Related Benefits and Taxes 26, Defendants' financial records show that between 1992 and 2001, Defendants have overbilled or improperly charged Plaintiff $277,560,00 for salaries, benefits, and payroll taxes by improperly charging to the plant: (a) The salary of Lemoyne's secretary, who does no work for the plant; (b) The full salary of Lemoyne Plant Manager, Jack O'Neill, who also serves as Lemoyne's Health Inspector and oversees Lemoyne's Sewer Collection System; (c) The salaries of the plant operators who also provide services to Lemoyne's Sewer Collection System by over allocating said salaries to the Plant; and (d) Employee benefits and payroll taxes not properly attributable to the plant, which employee benefits and payroll taxes include FICA, unemployment compensation, workers' compensation, and employee benefits, Overcharae for Electricity 35, To determine the amount of electricity costs overcharged to Plaintiff, Plaintiff calculated the kilowatt hours used in the highway garage as a percent of total kilowatt hours after Defendants' new meter was installed and applied this percentage to the total electricity charged to the treatment plant for 1992 through 2001 and determined that Defendants overcharged Plaintiff $14,592.47 for electric service to the plant from 1992 through 2001, Overcharaes for Vehicle-Related Costs and Insurance Policv Dividend 42. In at least some years, Defendants also did not credit Plaintiff with refunds for insurance premiums previously billed to Plaintiff and for the 1995-96 premiums on the Pennsylvania National insurance policy did not properly credit Plaintiff for the dividend received on the policy on or about September 4, 1997, 44, Upon information and belief and after review of insurance bills and fuel expenditures, Defendants have overcharged Plaintiff $17,799,00 between 1992 and 2001 for vehicle insurance and fuel costs and failed to credit Plaintiff $1 ,464,00 for a dividend on the Pennsylvania National insurance policy, Water EXDenses 54, Based on water bills and water meter readings, Defendants have overcharged Plaintiff for water usage at the plant. Between 1992 and 2001, Plaintiff believes it was overcharged $110,00 for water usage, Preliminary Results of Audit 58, Based on the information that Defendants have provided to date, however, as reflected above, Plaintiff has determined that between 1992 and 2001, Defendants overcharged Plaintiff $772,015,00 for plant operating costs, not including inflation or interest, which amount includes sums charged or billed to Plaintiff and 50% of the amount paid Defendants by private waste haulers between 1992 and 2001, 59, Based on its investigation, Plaintiff believes and therefore avers that Defendants have also overcharged Plaintiff for plant operating costs, in an amount yet to be determined, for -2- years before 1992, and that Defendants have overcharged Plaintiff a total amount substantially in excess of $1,000,000, Further, certain other overcharges are continuing under investigation, including certain refunds and credits, pension expenses included in employee benefits, unemployment compensation expenses, software innovators invoices and capital expenditures paid by the Municipal Authority of the Borough of Lemoyne that have been reimbursed by Camp Hill that relate to improvements to the Lemoyne collection system. Additionally, a claim is made herein to the extent that subsequent to 2001 Defendants continue to improperly charge Plaintiff for operating costs and continue to receive payments from private waste haulers for accepting and treating waste from private waste haulers, without sharing revenues received with Camp Hill and failing to reduce the operating costs charged to Camp Hill for the additional costs incurred in processing the septage received from the private waste haulers. Spanaler Road Pump Station 87. Plaintiff incorporates by reference Paragraphs 1-87 of Plaintiffs Complaint, as amended, as though fully set forth herein, 88, I n addition to the Plant, the 1969 Agreement called for the construction of a pump station at or near existing manhole number 415 in the Borough of Camp Hill, 89, Under the 1969 Agreement, operating costs for the pump station were the sole responsibility of Camp Hill, 90, When the 1969 Agreement was amended in 1972, the parties agreed to "construct a new sewage pump station at a location to enable said station to pump the sewage from all of the users of the boroughs," 91, Under the 1972 Agreement, at paragraph 6, operating costs for the pump station were to be shared equally between Plaintiff and "Owner." As set forth in the 1972 Agreement, the term "Owner" referred to The Municipal Authority of the Borough of Lemoyne, -3- " 92, When the Agreement was amended again in 1983, it provided for the construction of a new pump station at or near Spangler Road ("Spangler Road Pump Station"), 93, The 1983 Agreement provided that all provisions of the 1969 and 1972 Agreements remained in effect unless expressly modified by the 1983 Agreement. 94, Accordingly, under the 1983 Agreement, costs for the Spangler Road Pump Station were shared equally between Plaintiff and "Owner." 95, When the Agreement was amended again in 1985, it similarly provided for a pump station at or near Spangler Road, 96, The 1985 Agreement replaced and supplanted entirely the 1983 Agreement, but retained in full force and effect all provisions of the 1969 and 1972 Agreements, unless expressly modified by the 1985 Agreement. 97, Accordingly, costs for the Spangler Road Pump Station were to continue to be shared equally between Plaintiff and "Owner." 98. Consistent with this, Plaintiff has historically paid 100% of the operating costs for the Spangler Road Pump Station and submitted an invoice for its 50% share of those costs that are the responsibility of the "Owner," 99, Historically, Plaintiff has submitted said invoices to Defendant Lemoyne and until recently, Defendant Lemoyne has paid said invoices, 100. On March 31,2003, Plaintiff mailed to Defendant Lemoyne an invoice in the amount of $31,384.88, along with supporting documentation, for Lemoyne's share of the 2002 operating costs for the Spangler Road Pump Station. 101. On April 27, 2004, Plaintiff sent Defendant Lemoyne an invoice in the amount of $33,950,75, along with supporting documentation, for Lemoyne's share of the 2003 operating costs for the Spangler Road Pump Station, -4- " 102, Plaintiff also wrote to Lemoyne on several occasions in 2004 requesting payment of the 2002 and 2003 invoices for the Spangler Road Pump Station, 103, On May 16, 2005, Plaintiff sent Defendant Lemoyne an invoice in the amount of $37,081.08 along with supporting documentation for the 2004 operating costs for the Spangler Road Pump Station, 104, Despite Plaintiffs repeated requests to Defendant Lemoyne to pay the invoices, Lemoyne has not paid the invoices, forcing Plaintiff to pay 100% of the operating costs for the Spangler Road Pump Station, COUNT V CamD Hill v. Borouah of lemovne and The MuniciDal Authority of the Borouah of lemovne 105, The averments of Paragraphs 1 through 104 of the within Complaint are incorporated herein by reference as if fully set forth. 106. Under the terms of the 1985 Agreement, Camp Hill and "Owner" are each responsible for 50% of the operatin9 costs for the Spangler Road Pump Station, Camp Hill has submitted invoices for the "Owner's" share of the operating costs of the Spangler Road Pump Station to Defendant Lemoyne and Defendant Lemoyne has previously paid said invoices. 107. Accordingly, Plaintiff has provided Defendant lemoyne with invoices for 50% of the'2002, 2003, and 2004 operating costs for the Spangler Road Pump Station, 100% of which Plaintiff has paid. 108, Defendant Lemoyne has been assigned, assumed or otherwise undertaken the obligations of the "Owner" for the Owner's 50% share of the operating costs of the Spangler Road Pump Station. -5- " 109, Defendant Lemoyne has improperly failed to pay the 2002, 2003, and 2004 invoices for its share of the operating costs for the Spangler Road Pump Station, in direct and material breach of the 1985 Agreement. 110, As the "Owner," Defendant Authority remains liable pursuant to the above referenced agreements for 50% of the operating costs for the Spangler Road Pump Station and Defendant Authority has failed to make payment for its share of the 2003, 2004, and 2005 operating costs of the Spangler Road Pump Station, 111. As a direct and proximate result of the breaches by Defendants, Plaintiff has incurred monetary damages of $102,416,71 plus interest, which continues to accrue on the unpaid balance, WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendant Lemoyne and Defendant Authority, jointly and severally, in an amount in excess of $102,416.71, together with interest, counsel fees, and costs, and such other relief as is proper and just. Respectfully submitted, r , Attorn s I.D, No, PA 111 North Front Street p, O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF By: DATE: 79460,1 q (( ( O( -6- VERIFICATION I, JEFFREY F, SMITH, in my capacity as President of the Borough Council of the Borough of Camp Hill, Plaintiff in the foregoing action, do hereby certify that I am authorized to execute documents on behalf of the Borough of Camp Hill, and acknowledge that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief, I understand that any false statements herein are subject to the penalties of 18 Pa, C,S,A, Section 4904, relating to unsworn falsification to authorities, -- 80984,1 CERTIFICATE OF SERVICE AND NOW, this ?,A/D day of SEPTEMBER, 2005, I, Jacquelyn Zettlemoyer, Secretary to Stephen M, Greecher, Jr" Esquire, for the law firm, Tucker Arensberg, P,C" attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Thomas B. Schmidt, "', Esquire Pepper Hamilton LLP P. 0, Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire p, O. Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE 76710,1 Jac~y~ C) ,- ....' ~:.:::.l c.? co" (,n , , N (,,) ,r- (,;\ - II BOROUGH OF CAMP HILL, Plaintiff vs, ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants NO, 03-5591 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLAINTIFF NAMED HEREIN: YOU ARE HEREBY NOTIFIED TO RESPOND TO THE PRELIMINARY OBJECTION WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU, 8 September 2005 ~~ Attorney for Defendant Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 II BOROUGH OF CAMP HILL, Plaintiff vs. ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BOROUGH OF LEMOYNE AND THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants NO, 03-5591 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTION OF DEFENDANT THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes the Municipal Authority of the Borough of Lemoyne, one of the Defendants in this matter (and hereinafter referred to as "Authority"), and files the following Preliminary Objection to the Plaintiff's Complaint: PETITION FOR MORE SPECIFIC PLEADING 1. The Defendants in this action are separate corporate entities, 2. This dispute arises out of the operation of a waste water treatment plant located in Lemoyne ("Plant") and the charges and payments for the cost of operating the Plant, 3, The Authority does not operate the Plant and, at no time during its existence, has the Authority operated the Plant, 4, The Plant is, and at all times relevant to this action has been, operated by the other Defendant, the Borough of Lemoyne, The Borough of Lemoyne provides all personnel to staff and operate the Plant, pays all utilities, labor, and other expenses to operate the Plant, and exercises unilateral control over the operation of the Plant, These arrangements have been in effect since the construction of the present Plant in the early 1970s, 5. The Authority has no employees and has had no employees at any time relevant to this action and certainly not since the present Plant commenced operation in the early 1970s. 11 6. In this action, Plaintiff complains that it was improperly overcharged its agreed share of the cost of operating the Plant. 7. In its Complaint, as amended, in support of its claims against the Defendants, the Plaintiff ascribes to both Defendants a series of acts and omissions. Those acts include, by way of example, statements and misrepresentations about the existence of certain metering devices, the preparation and submission to Plaintiff of false and improper billing for the cost of operating the Plant, and misrepresentations regarding the cost of operation of the Plant. 8. In Count I of Plaintiff's Complaint, as amended, is based upon a theory of contract and, in support of that Count, Plaintiff avers, in Paragraph 67, that Defendants improperly assessed Plaintiff charges unrelated to the operation of the Plant. Plaintiff's Complaint, as amended, fails to state which Defendant made such improper assessment or what individual or agent of either Defendant made such improper assessment. 9. Count II of Plaintiff's Complaint, as amended, is based upon a theory of unjust enrichment. The Complaint, however, fails to state how the Authority, which is not responsible for and does not pay the costs of, operation of the Plant, benefitted from the improper billing of which Plaintiff accuses the Defendants. 10. Count III of Plaintiff's Complaint, as amended, asserts a claim based upon promissary estoppel and states, in Paragraph 75, that Defendants misled Plaintiff by presenting false invoices for monthly expenses for the operation of the Plant. Plaintiff's Complaint, however, fails to identify which Defendant, or which individual or agent for either Defendant, submitted such invoices. 11. Count IV of Plaintiff's Complaint, as amended, asserts a claim based upon a theory of negligent misrepresentation and claims, in Paragraph 79, that the Defendants made material misrepresentations to Plaintiff regarding the presence of metering devises and the assessment of operating costs for the Plant. Plaintiff's Complaint, however, fails to identify which Defendant or which individual or agent of either Defendant made such misrepresentations. 12. In its Complaint, as amended, Plaintiff has clarified the damages it claims it has suffered and the claims against the Defendants as a result of those II alleged damages and has added an additional claim arising out of the operating costs of a pumping station used to connect the Plaintiff's sewer lines to the waste water treatment plan operated by the Borough of Lemoyne. The amendment, however, still does not clarify or identify who, or which entity, committed the acts or made the omissions of which Plaintiff complains. 13. The Defendants are not the same entity, are not identical, and do not have identical or parallel interests in this litigation. 14. Without a more specific pleading, which specifically identifies who, or at least which entity, committed the acts or made the omissions of which Plaintiff complains, the Authority is not able to intelligently plead or respond to Plaintiff's Complaint. Without a more specific pleading, the Authority is not able to determine what defenses it may have available to assert in this matter. 15. The Authority believes that, if this matter is properly pleaded so that the entities or persons taking the actions or making the omissions of which Plaintiff complains, the Authority will be excused from this litigation or at least from one or m ore of the Counts raised by Plaintiff in its pleading, either because Plaintiff will recognize that the Authority has no liability for such claims or because the Court will dismiss those claims upon a review of them once properly pleaded. 16. Without a proper and more specific pleading in this matter, Defendant is prejudiced in its ability to defend itself from these claims. WHEREFORE, the Municipal Authority of the Borough of Lemoyne requests this Court to direct Plaintiff to file a more specific pleading in which it specifically identifies the acts or omissions of the Authority of which the Plaintiff complains. ~""~~ Sam I L. Ande Attorney for Defendant Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 II CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon counsel for the Plaintiff and Defendant herein by regular mail, postage prepaid, addressed as follows: Thomas B. Schmidt, III, Esquire Pepper Hamilton LLP 200 One Keystone Plaza North Front & Market Streets P.O. Box 1181 Harrisburg, PA 17108-1181 Stephen M. Greecher, Jr., Esquire 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Date: 8 September 2005 ~ 4Y\.4\o.J\.'iu1nI Amy M. arkins Secretary for Samuel L. Andes n h' 'Z-=; t'~"1 r_,') ;-;( N ':J a -., :.::oJ _.1- -.-.. r-,',--:-,," r~ c,.) r....) (.' -- " To: Boroul!h of Camn Hill. Plaintiff You are hereby notified to file a written response to these Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Pepper Hamilton LLP P-- By: BOROUGH OF CAMP HILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. NO. 03-5591 BOROUGH OF LEMOYNE THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF LEMOYNE TO AMENDED COMPLAINT Pursuant to Pa. R.c.P. 1028, defendant Borough of Lemoyne ("Lemoyne"), by its undersigned attorneys, makes the following preliminary objections to plaintiff's amended complaint: Preliminary Obiection Pursuant to Pa. R.C.P. 1028(a)(2) 1. Pa. R.C.P. 1028(a)(2) permits the filing of a preliminary objection to a pleading that includes scandalous or impertinent matter. 2. Plaintiff's amended complaint asserts claims for breach of contract (Count I). unjust enrichment (Count II), promissory estoppel (Count III) and negligent misrepresentation (Count IV). 3. Paragraphs 13-25 of plaintiff's amended complaint contain scandalous or impertinent matter that is immaterial to plaintiff's claims. WHEREFORE, defendant Borough of Lemoyne, requests that this Court strike the allegations of paragraphs 13-25 of the amended complaint because they are scandalous or impertinent. Preliminarv Obiection Pursuant to Pa. R.C-P. l028(a)(3) 4. Pa. R.C.P. 1028(a)(3) permits the filing of a preliminary objection to a pleading that is insufficiently specific. 5. Plaintiff's amended complaint asserts claims for breach of contract (Count I). unjust enrichment (Count II), promissory estoppel (Count III) and negligent misrepresentation (Count IV). 6. Defendants in this action are separate corporate entities. 7. Plaintiff's amended complaint ascribes different functions to each defendant. 8. Plaintiff's amended complaint ascribes to both defendants a series of acts and omissions. 9. Plaintiff's amended complaint fails to state which defendant took the actions that are ascribed to both defendants. 10. Without a more specific pleading that identifies which entity committed the acts or made the omissions about which plaintiff complains, Lemoyne is not able to plead or respond to plaintiff's amended complaint, nor is it able to determine what defenses it may have to assert in this matter. -2- WHEREFORE, defendant Borough of Lemoyne, requests that this Court dismiss plaintiff s amended complaint or, in the alternative, direct plaintiff to file a more specific pleading that identifies the acts or omissions of the individual defendants about which plaintiff complains. ,.,,_11, '"001, THOMAS B. SCHMIDT, III (19196) Pepper Hamilton LLP 200 One Keystone Plaza North Front & Market Streets Post Office Box 1181 Harrisburg. Pennsylvania 17108-] 181 (717) 255-1155 (717) 238-0575 (Fax) Date: September 20, 2005 Attorneys for Defendant Borough of Lemoyne -3- CERTIFICATE OF SERVICE I hereby certify that on September 20, 2005, a copy of the foregoing Preliminary Objections (~f D~fendant Borough of Lemoyne to Amended Complaint was served by United States mail, first class postage prepaid, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. III North Front Street Harrisburg, PA 17108-0889 Samuel L. Andes, Esquire 525 North Twelfth Street Post Office Box 168 Lemoyne, P A 17043 Thomas B. chmidt, III (19196) () c ~ ,', .-' c:::> c.:~ Gf' U? c., -;) o -n ~:!l "'0:: -c.r:!:J -qc.. .~.} L l..,.:.Jl....} \~~~~ ~) SJ :..:; r-.) -u -'i." ~ - ., ~:.j .-~ - (,Ji Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 03-5591 CIVIL BOROUGH OF CAMP HILL, v. BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE TO PLAINTIFF'S AMENDED COMPLAINT 1. Admitted upon information and belief. 2. Admitted. 3. Denied. The term "operates" is vague and ambiguous. In addition, this paragraph avers a fact not established of record in this case, and is thus an improper preliminary objection. 4. Admitted in part and denied in part. It is admitted upon information and belief that Defendant, The Borough of Lemoyne, operates the Plant and provides personnel to staff and operate the Plant. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether the Borough of Lemoyne has sole responsibility for providing all personnel to staff and operate the plant, and this is thus denied. It is also denied that the Borough of Lemoyne pays all utilities, labor, and other expenses to operate the Plant, as Plaintiff is responsible for one-half of the legitimate utility, labor and other Plant expenses. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether "these arrangements" have been in effect since the early 1970's, and this is thus denied. Finally, to the extent that this paragraph suggests that the Authority plays no role in the operation of the Plant, Plaintiff incorporates by reference Plaintiff's response to the preceding paragraph. 5. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to whether the Authority now has or has ever had any employees at any time relevant to this action or since the early 1970's. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part and denied in part. Count V, which was added to this action by the Amended Complaint, does specifically set forth the role of each Defendant with regard to the claim for the Spangler Road Pump Station. 13. Admitted in part and denied in part. It is admitted upon information and belief that Defendants are not the same entity and are not identical. It is denied that Defendants do not have any interests in this litigation that are identical or parallel. 14. Denied. Defendants have knowledge about which Defendant committed the acts or made the omissions contained in the Amended Complaint, and despite Plaintiff's efforts to resolve this dispute before filing suit, Plaintiff was not given access to all of the information necessary to discern what actions were taken or omissions were made by which Defendant. See Amended Complaint ml14-26. -2- At a minimum, each Defendant knows the actions that it did or did not take, and each Defendant can thus answer the Amended Complaint, admitting or denying each paragraph as to its conduct. Each Defendant may know about the other's conduct, and can respond accordingly if it does. If one Defendant is unaware of whether the other took certain actions or made certain omissions, it may simply state that in its answer. Based on its knowledge of its conduct, each Defendant is likewise able to discern the defenses that are available to it in this matter. It is because Plaintiff has been refused or otherwise not had access to all of the infOrmation pertinent to this dispute that Plaintiff cannot state with greater specificity what actions each Defendant took or what omissions each Defendant made. Plaintiff has, however, provided sufficiently detailed information to put each Defendant on notice of the claims and to enable each Defendant to provide a meaningful response. Plaintiff is not required to plead evidence and is likewise not required to plead in any greater detail than it has, particularly when Plaintiff has been denied access to the information that would allow it to plead more specifically. 15. Denied in that Plaintiff is unable to ascertain what the Authority "believes," and further denied for the reasons set forth in paragraph 14 above. In addition, as explained in the preceding paragraph, Plaintiff is unable to plead more specifically. Based on the information Plaintiff has obtained thus far, the Authority is a proper defendant in this case. If, after discovery in this case, it appears to Plaintiff or to the Court, on proper motion, that the Authority should be excused or dismissed from one or more of the Counts in Plaintiffs Amended Complaint, such excuse or dismissal can occur at the appropriate time. At this preliminary stage, however, requiring Plaintiff to plead more specifically will not reveal the extent of the Authority's liability. 16. Denied for the reasons set forth in Paragraphs 14 and 15 above. -3. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Petition for More Specific Pleading. By Steph Atty. I.D. #P -3 03 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: 81672.1 9/?-g/~ -4- CERTIFICATE OF SERVICE AND NOW, this ,;,(8 M day of SEPTEMBER, 2005, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Samuel L. Andes, Esquire 525 North 12th Street P. O. Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE Thomas B. Schmidt, III, Esquire Pepper Hamilton LLP P. O. Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE ~~lt (!J~~ Jacquely zettboy , 76710.1 % c:~ (;'f\ ",'> ,n -0 t',~ ...0 q. -' :s:.~ rn<;;; C"('j i~~:l~,~ .g~~ "1:::>' ~ ..- :5:. '-P. N - BOROUGH OF CAMP HILL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. 03-5591 CIVIL BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT. BOROUGH OF LEMOYNE. TO PLAINTIFF'S AMENDED COMPLAINT 1. Admitted. 2. Admitted. 3. Denied. Paragraphs 13-25 of Plaintiff's Amended Complaint do not contain scandalous or impertinent matter that is immaterial to Plaintiff's claims, but describe events that are significant to this case. Specifically, paragraphs 13-25 explain the circumstances under which Plaintiff first began to suspect that it was being overcharged for bills in connection with the Plant and Plaintiff's attempts to investigate those overcharges. Plaintiff further denies this objection to the Amended Complaint on the ground that the Borough of Lemoyne fails to state with any specificity what is scandalous, impertinent or immaterial about paragraphs 13-25. In the absence of any explanation for Lemoyne's objection, Plaintiff cannot respond with any further specificity than it has above. WHEREFORE, Plaintiff respectfully requests that this Court deny the Borough of Lemoyne's request to strike paragraphs 13-25 of the Amended Complaint. ReSDonse to Obiection Pursuant to Pa.R.C.P. 1028Ia)13) 4. Admitted. 5. Admitted. 6. Admitted upon information and belief. 7. Admitted to the extent that Plaintiffs Amended Complaint describes Defendant Municipal Authority of the Borough of Lemoyne ("Authority") as a Pennsylvania municipal authority organized under the Municipal Authorities Act of 1945, as amended, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania; and describes Defendant Borough of Lemoyne ("Lemoyne") as a municipal corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 665 Market Street, Lemoyne, Cumberland County, Pennsylvania. Otherwise, this paragraph is denied in that the Amended Complaint is a written document that speaks for itself. 8. Admitted. 9. Admitted in part and denied in part. It is admitted that the Amended Complaint ascribes certain acts to both Defendants, but it is denied that the Amended Complaint ascribes all actions to both defendants. 10. Denied. Defendants have knowledge about which Defendant committed the acts or made the omissions contained in the Amended Complaint, and despite Plaintiffs efforts to resolve this dispute before filing suit, Plaintiff was not given access to all of the information necessary to discern what actions were taken or omissions were made by which Defendant. See Amended Complaint 111113-25. At a minimum, each Defendant knows the actions that it did or did not take, and each Defendant can thus answer the Amended Complaint, admitting or denying each paragraph as to its conduct. Each Defendant may know about the other's conduct, and can respond accordingly if it does. If one Defendant is unaware of whether the other took certain actions or made certain -2- omissions, it may simply state that in its answer. Based on its knowledge of its conduct, each Defendant is likewise able to discern the defenses that are available to it in this matter. It is because Plaintiff has been refused or otherwise not had access to all of the information pertinent to this dispute that Plaintiff cannot state with greater specificity what actions each Defendant took or what omissions each Defendant made. Plaintiff has, however, provided sufficiently detailed information to put each Defendant on notice of the claims and to enable each Defendant to provide a meaningful response. Plaintiff is not required to plead evidence and is likewise not required to plead in any greater detail than it has, particularly when Plaintiff has been denied access to the information that would allow it to plead more specifically. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Borough of Lemoyne's request to dismiss Plaintiff's Amended Complaint or, in the alternative, deny the Borough of Lemoyne's Request for a More Specific Pleading. DATE: 81690.1 /6/ bios -3- CERTIFICATE OF SERVICE AND NOW, this 7 :l1..- day of OCTOBER, 2005, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania. addressed as follows: Thomas B. Schmidt, III, Esquire Pepper Hamilton LLP P. O. Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire 525 North 12th Street P. O. Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE (~ ~ A) Jacquely ettl moyer ~ 76710.1 Q ~.~.:: c-' = .-) 'i::r '8 -, - - y ~~\ :?-T) ;."\ C;:, :r:\,;::; . -~\(~., ~-;-. "n .,.~(?~ ;2:1 -;:: (.,) .' ;'0 :..<; - Co ~ .~ BOROUGH OF CAMP HILL, Plaintiff v. BOROUGH OF LEMOYNE and THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 03-5591 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO: PROTHONOTARY, CUMBERLAND COUNTY: Please mark the above captioned action settled and discontinued with prejudice. DATE: August 29, 2006 89089.1 eph . Greecher, Jr. Attorney's 1.0. No. PA-36803 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF "' "......." CERTIFICATE OF SERVICE AND NOW, this aqtJ... day of AUGUST, 2006, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Thomas B. Schmidt, III, Esquire Pepper Hamilton LLP P. O. Box 1181 Harrisburg, PA 17108-1181 ATTORNEYS FOR DEFENDANT, BOROUGH OF LEMOYNE Samuel L. Andes, Esquire 525 North 1 ih Street P. O. Box 168 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANT, THE MUNICIPAL AUTHORITY OF THE BOROUGH OF LEMOYNE Jac~e~ 76710.1 o ~ ...,-,:; l~~:' , (J:; ~: ";::r' '~~ ~: ":;- ~ ..,,' ,...., c;> ~:.;~ <f' 'Y..... c:: Co"? (",> o -.:J -::r.:, ~ .-\ ::t>r, \I.... f:: -n\""f"; 'JCJ ;:),() ~~.':! --r. L. -1", (;;-c") ,/-,"\"\1 o __I ~ ::<:. <..;-? o ",...