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HomeMy WebLinkAbout03-5697NEWPORT ASSEMBLY OF GOD CHURCH, 253 North 6th Street Newport, PA 17074-1214 Plaintiff CALDWELL DEVELOPMENT, INC. 295 Cumberland Parkway Mechanicsburg, PA 17055 Defendant PRAECIPE FOR WRIT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW OF SUMMONS TO THEPROTHONOTARY: Please issue a Writ of Summons upon the Defendant, Caldwell Development, Inc, with a mailing address of 434 North Front Street, Wormleysburg, PA 17043. This Writ of Summons shall be issued and forwarded to the Cumberland County Sheriff for service. Respectfully submitted, By: METTE, EVANS & WOODSIDE Randall G. Hurst, Esquire Sup. Ct. I.D. No. 83931 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Newport Assembly of God Church Date: NEWPORT ASSEMBLY OF GOD CHURCH, 253 North 6th Street Newport, PA 17074-1214 Plaintiff CALDWELL DEVELOPMENT, INC. 295 Cumberland Parkway Mechanicsburg, PA 17055 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT TIlE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. YOU WILL BE REQUIRED TO DEFEND OR A DEFAULT JUDGMENT MAY BE ENTERED. Date: Deputy NEWPORT ASSEMBLY OF GOD CHURCH, 253 North 6th Street Newport, PA 17074-1214 Plaintiff CALDWELL DEVELOPMENT, INC. 295 Cumberland Parkway Mechanicsburg, PA 17055 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I accept service of the Writ of Summons on behalf of Caldwell Development, Inc., Defendant, and certify that I am authorized to do so. Date: /s/ Printed Name Title 382503vl NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff CALDWELL DEVELOPMENT, INC. Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5697 CIVIL : CIVIL ACTION - LAW 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 by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH iNFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan m~is adelante en las siguientes p~tginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu~s de la notificaci6n de esta Demanda y Aviso radicando personalmente o pot medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier smna de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin m~ts aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE 1NFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFIC1NA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA (717) 249-3166 NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff CALDWELL DEVELOPMENT, INC. Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5697 CIVIL : : CIVIL ACTION - LAW COMPLAINT NOW COMES the Newport Assembly of God Church ("Church") by and through its attorneys, Mette, Evans & Woodside, and files this Complaint, alleging as follows. 1. The Church is a church with a mailing address of 253 North Sixth Street, Newport, PA 17074. 2. The Church owns multi-purpose facilities located at 27 West Shortcut Road in Howe Township, Perry County, Pennsylvania. 3. The Defendant Caldwell Development, Inc. ("Caldwell") is a Pennsylvania corporation with offices at 434 North Front Street, Wormleysburg, Cumberland County, Pennsylvania. 4. At all relevant times, Caldwell owned and operated a sewage treatment plant located in Howe Township, Perry County, Pennsylvania, at a development called Newport Plaza or Newport Shopping Plaza. 5. On or about February 12, 1997 the Church and Caldwell entered into an agreement, denominated the "Newport Plaza Sewage Treatment Plant Agreement" (the "Agreement"). The Agreement is attached hereto as Exhibit 10. 11. 12. 13. 14. The Agreement provided, inter alia, that the Church would connect the sanitary waste lines from its multi-purpose facilities to the Caldwell sewage treatment plant and that the sewage treatment plant would accept the sewage for treatment and disposal. The Agreement provided, inter alia, that the Church would periodically pay to Caldwell a fee (hereinafter "Sewer Use Fee") for the use of the sewage treatment plant. The Agreement set forth in section 5 thereof the manner in which the Sewer Use Fee would be calculated. The calculation of the Sewer Use Fee was to be based on the "pro-rated share of the care, maintenance, repair and treatment of the [sewage treatment plant] as the Church's actual sewage contribution bears to the total sewage being treated." The Agreement provided that the sewage contribution from the Church's facilities would be measured by a water meter installed in the multi-purpose facility. Commencing in October, 1999, the Church periodically obtained and submitted water meter readings to Caldwell for use in calculation of the Sewer Use Fee, as provided by the Agreement. Commencing in November 1999, the Church began discharging sewage to the treatment plant. Commencing in November 1999, Caldwell began submitting to the Church invoices purporting to be for the Sewer Use Fee. The Church timely paid all invoices received from November 1999 through December 2002. 2 15. In January 2003 the property, including the sewage treatment plant, was sold by Caldwell to another entity. 16. The Agreement was not assigned to the purchasing entity and remains in full force and effect between the Church and Caldwell. 17. Since December 2002, the Church has continued to discharge sewage to the sewage treatment plant and to submit its water meter readings to Caldwell, but has not received any invoices for payment from Caldwell and has not made any payments to Caldwell. 18. During a review of its records, a consultant for the Church discovered that the invoices presented by Caldwell to the Church did not reflect a calculation of the Sewer Use Fee according to the terms of the Agreement. 19. Based on available records, the total amount of the Sewer Use Fee for the period November 1999 through December 2002, calculated as provided by the Agreement, was Three Thousand, Four Hundred Eighty Four Dollars and Eight Cents ($3,484.08). 20. The total amount of Sewer Use Fees billed by Caldwell and paid to Caldwell by the Church during the period November 1999 through December 2002 was Fourteen Thousand Six Hundred Twenty-five Dollars ($14,625.00). 21. The Church has requested repayment of the overpayment of Ten Thousand Seven Hundred Sixty-five and Ninety-two Cents ($10,765.92) from Caldwell, and Caldwell has not tendered the amount due. 22. The Agreement provides in clause 8 that "the Church shall have the right to obtain information records.., with reasonable notice being given in advance of such 23. 24. 25. 26. 27. 28. 29. requests .... Caldwell shall provide Church, in a timely manner upon request, appropriate and necessary information regarding the [sewage treatment plant] and its operation." On September 8, 2003, the Church requested in writing information regarding the sewage treatment plant and its operation. Exhibit "B." Caldwell did not respond to that request and did not provide the information, nor did it provide the Church with an opportunity to review Caldwell's records to obtain the information. COUNT I - BREACH OF CONTRACT The Church incorporates paragraphs 1 through 24 as if set forth fully herein. The invoices tendered did not reflect the terms of the Agreement regarding the calculation of the Sewer Use Fee. Caldwell, by tendering incorrect invoices, caused the Church to pay amounts greatly in excess of the amounts which it was obligated to pay. Caldwell's demand for amounts in excess of the amounts which it was lawfully owed, and its acceptance of payments in conformity with these excessive demands, constitute a breach of its contractual obligations to the Church. Caldwell's refusal to provide the information requested by the Church is a breach of its obligations under the Contract. 4 WHEREFORE, Newport Assembly of God Church demands judgment against Defendant Caldwell Development, Inc. in the amount of Ten Thousand Seven Hundred Sixty-five and Ninety-two Cents ($10,765.92), together with interest and costs, and such other relief as this Court may deem proper. Date: By: Respectfully submitted, METTE, EVANS & WOODSIDE Paula J. Leicht, Esquire Sup. Ct. I.D. No. 42585 Randall G. Hurst, Esquire Sup. Ct. I.D. No. 83931 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Newport Assembly of God Church VERIFICATION I, Gary Bellis, Senior Pastor of the Newport Assembly of God Church have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. NEWPORT ASSEMBLY OF GOD CHURCH By: ~'~~~ ~~r ' Rev. Gary Belli~, Senior Pasto Date: l~areh 1, 2004 NEWPORT PLAZA SEWAGE TREATMENT PLANT AGREEMENT This Newport Plaza Sewage Treatment Plant Agreement, hereinafter "Agreement", is entered into this [~Y-'~ day of February, 1997, by and between CALDWELL DEVELOPMENT INC., hereinafter "CALDWELL", and NEWPORT ASSEMBLY OF GOD CHURCH, a non-profit corporation, hereinafter "CHURCH". WITNESSETH: WHEREAS, CALDWELL has constructed a certain 15,000 gpd on-site sewage treatment plant, hereinafter "PLANT", to service exclusively CALDWELL's planned commercial development known as Newport Shopping Plaza, Howe Township, Perry County, Pennsylvania, hereinafter the "DEVELOPMENT", which plant was originally planned to have a capacity of 7,500 gallons per day treatment capacity which, would adequately service the DEVELOPMENT; and WHEREAS, CHURCH desires to construct church facilities north of the DEVELOPMENT which, as presently designed/planned, may require a capacity of approximately 6,100 gallons per day treatment capacity. CHURCH desires to purchase sewage treatment capacity in the PLANT from CALDWELL and contribute towards the operating maintenance cost PLANT when the CHURCH's facilities are built; and WHEREAS, the said parties have agreed upon a fixed sum for Church's purchase of 6,100 gallons per day of the Plant's treatment capacity for a term not less than twenty- five (25) years from the date of this Agreement, or the lifetime of the major components of the Plant, whichever shall later occur, and also agreed to a basis for division and allocation of costs for use, maintenance and repair at such time the CHURCH becomes a user of said Plant. WHEREAS, based upon CHURCH'S future sewage contribution and entry into this Agreement, CALDVVELL designed and constructed the PLANT with an increased capacity of 15,000 gpd. WHEREAS, in conjunction with CHURCH's participation and use of the PLANT, it will also require an easement across the property of CALDWELL, which CALDWELL is prepared to grant the CHURCH without additional consideration under the certain terms and conditions as set forth in this Agreement and as contained in separate easement instrument; and NOW THEREFORE, intending to be legally bound hereby, the parties hereinbefore identified do agree as follows: 1. Duty to Build and Operate Plant. CALDWELL has completed construction of the PLANT and agrees to operate same for no less than Twenty-Five (25) years from the date of this Agreement. After said period of time, if CALDWELL, its successors and 2 assigns, do not wish to operate said PLANT, then CALDWELL hereby grants the CHURCH the right to purchase the PLANT pursuant to the Memorandum of Understanding and Option to Purchase dated contemporaneously herewith. 2. Easement. The CHURCH intends to conned to the PLANT within six months from the date of execution of this Agreement. Accordingly,- following execution of this Agreement, CALDWELL shall provide CHURCH an appropriate recordable easement over the land between CHURCH and the PLANT so that CHURCH may have the right to access the PLANT. To this end, if CHURCH has not so connected to the PLANT within ten years of the date of this Agreement, the easement shall automatically terminate, expire and be returned to CALDWELL, its successors or assigns. CALDWELL shall also obtain, to CHURCH'S satisfaction, approval of the current mortgage holder relative to the grant of said easement. Following execution of this Agreement, representatives of both padies shall timely meet and reach an agreement upon the location of the proposed easement on CALDWELL's land for CHURCH's connection to the PLANT whereupon an appropriate easement instrument can be prepared, executed, held in escrow by CHURCH's attorneys, Mette, Evans and Woodside, and only delivered to CHURCH upon written notice to CALDWELL that it intends to commence construction of its facility and connect same to the PLANT within six (6) months' time from said notice. All costs of recording said easement, to include payment of realty transfer tax, if any, shall be borne by CHURCH. If CHURCH has not so notified Caldwell within ten (10) years of the date of this Agreement, the easement shall automatically terminate, expire, and be returned to CALDWELL, its successors or assigns. CALDWELL shall also obtain to CHURCH's satisfaction the approval of any current mortgage holder relative to the grant of said easement. 3. u C ' . The cost of the PLANT was approximately $170,000, exclusive of legal, engineering and permitting costs. The CHURCH agrees to pay CALDWELL the sum of $52,500 to purchase 6,100 gpd of the PLANT's treatment capacity for a term of the later twenty-five (25) years commencing from the date of this Agreement or the lifetime of the major components of the PLANT. CHURCH shall pay to CALDWELL Fifty Percent (50%) of said s. um upon execution of this Agreement, and the balance upon delivery to a mutually selected Escrow Agent of the appropriate easement. At the time of the initial payment, CALDWELL shall provide CHURCH copies of all regulatory approvals to certify the PLANT is complete and operational at the capacity herein provided. A failure of CHURCH to pay said balance within said time period, and after a fudher ten (1 O) days' notice of default, shall result in a default of CHURCH hereunder, if CHURCH fails to pay within ten (10) days after notice of default, the escrowed deposit with interest shall be immediately released to CALDWELL as liquidated damages and not as a penalty, whereupon neither party shall have any further duties or obligations to the other hereunder. Furthermore, in the event CHURCH determines at some time in the future that it will not be connecting to the PLANT, it shall not be entitled to any refund of any sums heretofore paid, the escrow agent holding the easement shall be so notified and same shall be promptly returned to CALDWELL. The easement shall not be recorded by the Escrow Agent until the CHURCH's notification as provided in paragraph 2. 4. Transfer of Plant's Ownership. It is hoped and anticipated that the operation and even the ownership of the PLANT shall be conveyed and transferred to the Newport Borough Authority, or such other appropriate municipality. In such event, CHURCH's further obligations with regard to usage fees, maintenance, repair and treatment costs shall be as determined by said municipality/municipal authority. Furthermore, in such event, CALDWELL's fudher obligations, if any, with regard to operation, maintenance and repair, and treatment costs shall be only as then determined by said municipal authority, its successors and assigns. It is agreed that in the event of actual transfer of ownership to a municipality/municipal authority, such shall be conditioned upon the covenant, as contained in any document of transfer, that CHURCH shall be guaranteed for the term as herein provided continued use of 6,100 gpd of the PLANT's capacity and that CHURCH will not be obligated for any tapping/connection fee. 5. Assessment of Plant's Ooeratinq Exoenses. In the event that at the time of anticipated connection to the PLANT, the said municipal authority or other municipal 5 entity does not operate and/or own said PLANT, then CALDWELL shall install, at the expense of CHURCH, an appropriate water metedng device to measure CHURCH's actual contribution to the PLANT. Thereafter, once CHURCH is making use of, by contributions to the PLANT, it shall timely pay to CALDWELL its pro-rated share of the total cost of the care, maintenance, repair and treatment of the PLANT as the CHURCH's actual sewage contribution bears to the total sewage being treated. It would be anticipated that such billings for usage would be no less than quarterly or as the parties may otherwise agree. With regard to any extraordinary maintenance and repair costs, CALDWELL shall notify CHURCH no later than ten (10) days in advance of any necessary and reasonable corrective work. In the event and to the extent that the corrective repairs increase the PLANT's capacity, CHURCH shall receive additional capacity in direct relation to its prorated contribution towards the extraordinary repair. With regard to any extraordinary maintenance and repair cost, CALDWELL shall notify CHURCH, absent emergency circumstances, in which event notification shall be as soon as reasonably possible, ten (10) days in advance of the anticipated incurment of any necessary, but extraordinary, maintenance and repairs required. Normal operating expenses shall include the following expense categories. (i) purchased power (ii) chemicals (iii) sludge and waste removal (iv) insurance (v) certified operator (vi) testing by qualified laboratory (vii) causal labor (vii) other expenses necessary and reasonable for the PLANT's operation for services other than provided by CALDWELL or any affiliate of CALDWELL (ix) a management fee for CALDWELL's services not to exceed $4,000.00 per year for the first year of this Agreement, with a cost of living index adjustment allowed each anniversary of this Agreement. (It is noted CHURCH's share would be in direct relation to its prorated share of the total cost of the care, maintenance and repairs of the PLANT, as such may vary from time to time.) The CHURCH's obligation for its portion of the operating costs shall commence in the first full billing period following when CHURCH connects to the PLANT and shall be in direct relation to its prorated share of the usage of the PLANT as it may vary from time to time. 6. Reservation of Ca_oacitv. It is agreed that for so long as the PLANT is in operation and CHURCH is not in default of any of its obligations, that it shall have use of the PLANT with a reserve capacity of no more than 6,100 gallons per day. It is noted that CHURCH's usage is calculated based upon an average daily use over a month. If at any time CHURCH exceeds the aforesaid estimated peak contribution, then CHURCH and CALDWELL shall immediately investigate to determine the cause of such increased flow and recommend whatever action is deemed necessary and proper to limit said flow and accordingly determine the CHURCH's cost to correct the flow in excess of said 6,100 gpd. 7. F~estrictions of Waste Water. It is agreed that CHURCH shall only utilize said PLANT for ordinary water carried type household waste. Absolutely no waste shall be deposited in the collection lines and into the PLANT of a nature that could be categorized as industrial waste, meaning any solid, liquid or gaseous substance, or water borne waste, or form of energy rejected or escaping from any industrial manufacturing trade or business process, or from the development recovery or process of any natural resources as distinct from sanitary sewage. Furthermore, CHURCH shall not knowingly permit to be deposited in said collection of pollutants listed as toxic or hazardous in any and all regulations as promulgated by the EPA, DEP or any other federal or state agency or bureau. No floor drains, trench drains, foundation drains, roof drains, sump pumps, etc. shall be connected to the collection system. 8. Right to Obtain Information. CALDWELL agrees that CHURCH shall have the right to obtain information records and to obtain access to the system for the purpose of inspection, with reasonable notice being given in advance of such requests in order not 8 to disrupt the normal business activities of CALDWELL. CALDWELL shall provide CHURCH, in a timely manner upon request, appropriate and necessary information regarding the PLANT and its operation. 9. ~J:]3~. The PLANT is expected to have a usable life of a minimum of twenty-five (25) years. Accordingly, CHURCH agrees that it will discharge sewage collected to the PLANT for a period of twenty-five (25) years, and thereafter shall have the right to use the PLANT consistent with this Agreement until CHURCH provides CALDWELL with sixty (60) days written notice of intention to terminate this Agreement and sever its connections to the PLANT. While CHURCH has no time obligation to connect to the PLANT, it is understood that CHURCH hopes to so connect within a reasonable short pedod of time. However, it is understood that the Twenty-Five (25) years herein referred to with regard to usable life and discharge pedod shall be Twenty-Five (25) years from the date of this Agreement and insofar as CALDWELL is obligated in any manner whatsoever hereunder. In the event that CHURCH after connection desires to discontinue the discharge of sewage in the PLANT pdor to the expiration of twenty-five (25) years from the commencement of the operation of the PLANT, it shall still be required to pay its proportional share of operating costs for the balance of the term of this Agreement, based upon its average metered usage for the previous two (2) years reduced only upon and by assignment of any or all of CHURCH's capacity to CALDWELL or a third party. 10. ~..~gJ3133.e,~. CHURCH and CALDWELL shall have the right and privilege at any time to assign and transfer this Agreement to such other parties as they may desire but only following the written consent of the o{her, which consent will not be unreasonably withheld but subject to CALDWELL's rights to repurchase pursuant to Paragraph 18 hereof. Upon such assignment, if any, the assignee shall be subject to all the obligations and entitled to all the privileges of this Agreement. An assignee shall execute an agreement accepting all obligations of this Agreement. 11. Duty to Insure and Waivers. CALDWELL shall obtain and maintain adequate insurance to protect the PLANT from loss or damage to any normal casualty. CHURCH agrees that it shall insure its own property from any loss or damage due to any malfunction of the PLANT and/or collection lines. CHURCH does furthermore waive its right to make any claim against CALDWELL for any personal injury or property damage occurring in the performance of this Agreement and/or resulting from the failure of the PLANT and collection system to function propedy for any cause whatsoever, absent the grossly negligent or intentional actions of CALDWELL.~ 12. Duty to Cooperate. CHURCH agrees to cooperate with CALDWELL during the construction and during the term of this Agreement to make joint application when necessary for any permits required by the Commonwealth of Pennsylvania, United States 10 of America, or any other governmental body or political subdivision. Any costs associated with such application shall be borne by CALDWELL 13. IrlCrease in Plant's Ca_oacitv. If any federal, state or local government agency or body generally requires any improvements, modifications or upgrade of the PLANT, the cost associated with compliance shall be borne by the percentage of reserve capacity of each party compared to the total capacity. As previously indicated, CHURCH shall have a reserve capacity of 6,100 gpd and the PLANT shall have a total reserve capacity of 15,000 gpd so that the CHURCH's share of reserved capacity shall be 41%. Any expansion of the PLANT's capacity shall be borne by the party or parties responsible for the increased sewage demand in direct proportion to each party's responsibility for the increased sewage demand above CALDWELL's 8,900 gpd and CHURCH's 6,100 gpd. 1-4. Duty_ To Properly Operate Plant. During the lifetime of the PLANT, CALDWELL covenants and agrees that it shall maintain, repair and operate said PLANT in a good and proper condition and in accordance with any and all local state and federal statutes and regulations. This covenant shall only be assignable with CHURCH's consent which shall not be unreasonably withheld. If the ownership of the PLANT is conveyed to a municipality/municipal authority consistent with the provisions contained in Paragraph 4 of this Agreement, this covenant shall cease, no consent to assignment as provided in Paragraph 10 and this paragraph shall be required and all responsibilities for the care, 13. operation and maintenance shall then, accordingly, be that of the municipality/municipal authority. 15. Sewer Connection Line. While CHURCH shall have the right and obligation to construct and be solely responsible for the cost of its sewage collection line to the :PLANT, all plans and specifications therefore shall be approved by CALDWELL. 16. ~. Provided CHURCH is not in default of this Agreement, it shall not be required to pay any connection or tapping fee to CALDWELL. 17. ~;ale or Assignment by Church. In the event at any time(s) CHURCH determines at any time that it does not have need of any or all of its reserve capacity and wishes to assign or sell same other than to an affiliate of CHURCH, or non-profit entity, whose primary endeavor is limited to social based purposes sponsored by CHURCH, in which it may do so without notice to CALDWELL but in which event CHURCH shall remain liable for such assignee's obligations hereunder, it shall first notify CALDWELL of its desire to sell/assign same and CALDWELL shall have the first right to repurchase said capacity which shall be at a price no greater than the prorata price of CHURCH's contribution herein for 6,100 gpd reduced by straight line depreciation calculated from the date of CHURCH's connection. CALDWELL shall have no less than thirty (30) days after receipt of CHURCH's written notification of such intention(s) to act upon its right to repurchase prior to CHURCH selling such capacity to any other third party. However, 12 CAI_DWELL shall have no such obligation to repurchase all or any portion of said capacity and if CALDWELL does not choose to repurchase, CHURCH may then assign its capacity without CALDWELL's further approval. If such is not assigned by the CHURCH within six (6) months of notice to CALDWELL, however, each subsequent time the CHURCH intends to assign any capacity, it shall first give CALDWELL the notice hereunder. In the event of any assignment by CHURCH to any third party, CHURCH agrees to remain secondarily responsible for its obligations and that of any parties to whom CHURCH may assign all or portions of its capacity. Notwithstanding the foregoing, this Agreement shall inure to the benefit of CHURCH and its successor owners of the parcel of land that receives sewer service under this Agreement provided, however, CHURCH shall not sell the land, or any portion thereof, to a non-affiliated entity, as hereinbefore described, without first granting CALDWELL the right of first refusal at the same price and terms received by CHURCH in any bona fide offer. In such event, CHURCH shall provide CALDWELL a written notice of such bona fide offer and CALDWELL shall have no less than Twenty (20) days from receipt to notify CHURCH that it wishes to purchase said land upon same price and terms as contained in the bona fide offer. However, CALDWELL shall have no obligation to purchase and if CALDWELL does not choose to purchase, CHURCH may then sell without CALDWELL's further approval. If the property is not then sold by the CHURCH to said party presenting 3_3 the bona fide offer, CHURCH shall give CALDWELL notice each subsequent time the CHURCH receives any bona fide offer to purchase for the term of this Agreement. 18. Amendment. This Agreement shall not be altered, amended, changed or modified except in writing by the parties hereto. 19. Notices. Any notices or other communications required or permitted to be given under this Agreement shall be in writing, shall be sufficiently given if delivered in person or mailed by Registered, Certified Mail, postage prepaid, as hereinafter specified, unless an alternate addressee or address is furnished in writing by any party to the others. To CALDWELL: Caldwell Development, Inc. 434 North Front Street Wormleysburg, PA 17043 Attn: Mark G. Caldwell With a copy to: James R. Clippinger, Esquire Caldwell & Keams 3631 North Front Street Harrisburg, PA 17110 TO CHURCH: Newport Assembly of God Church 253 North Sixth Street Newport, PA 17074 With a copy to: Robert Haynes, Esquire 3.4 Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 20. Agreement Determined To Be Unlawful. In the event that a court or governmental regulatory body with proper jurisdiction determines that this Agreement or any provision of this Agreement is unlawful, respectively, this Agreement, or that provision of this Agreement, to the extent it is unlawful, shall terminate. If a provision of this Agreement is terminated but the parties can continue legally, commercially and practicably without the terminated provision, the remainder of this Agreement shall continue in effect. No additional liability shall attach to either party as a result of any such termination. 21. No Waiver Through Failure to Act. Either party's failure to insist on performance of any of the terms and conditions herein, or exercising their right of privilege, or either party's waiver of any breach hereunder, shall not be construed as a waiver, waiving any terms, conditions or privileges, whether of the same or similar type. 22. Time of Performance. Time of performance is of the essence in this Agreement and a substantial material term hereof. 23. Force Maieure. Neither party shall be liable for the failure to perform when such failure is caused by unforeseeable force majeure circumstances. If such circumstances occur, the party injured by the other party's inability to perform may either elect to terminate this Agreement and/or suspend this Agreement, but for the duration of the force majeure circumstances and then resume performance under this Agreement. 24. Incomoration and Mer(mr: The parties agree that the WHEREAS clauses hereinbefore contained shall be incorporated into this Agreement. The parties further agree that this document contains all their agreements which have been reduced to writing, and there are no verbal side agreements between the parties pertaining to the subject matter of this Agreement. ATTEST: ATTEST: G:\OATA\JRC\O~38\~\~6520.1 CALDWELL DEVELOPMENT, INC, NEWPORT ASSEMBLY OF GOD CHURCH ACKNOWLEDGMENT COMMONWEALTH.OF PENNSYLVANIA : · SS COUNTY OF DAUPHIN : ./ On this the ~ day of ~ 1.997, before me the subscribing personally appeared -_ .. . ' who s¢lrnowledged himself to be the President of Newport Assembly of God Church and that being authorized to do so as such officer executed the foregoing Newport Plaza Sewage Treatment Plant Agreement for the purposes therein contained on behalf of the corporation. WITNESS my hand and seal the day and year aforesaid. [ NOTARY PUBLIC NOTAalAL SEAL MARG/ARET L BO'YD. Notmy ~ M~' Cornmis~ion ~ ~ ~I ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA : : COUNTY OF DAUPHIN : · On this the L~day of ~ 1997, before me the subscribing personally appeared ~ ~, (~4~-,<~ who acknowledged himself to be the President of Caldwell Development Company and that being authorized to do so as such officer executed the foregoing Newport Plaza Sewage Treatment Plant Agreement for the purposes therein conf~ined on behalf of the corporation. WITNESS my hand and seal the day and year aforesaid. N~TARY PUBLIC My Commi.~sion Expires: NOTARI,~ SEAL TILLY C. KOLUS, Nota~ Public · ~Hanisburg, Dauphin County My ~mmissio~ Expires Nov. 28, http://www.mette.com September 8, 2003 James Clippinger, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Re: Newport Assembly of God Church Request for Information Dear Mr. Clippinger: As you are aware, there exists a contract between our client, the Newport Assembly of God Church, and your client, CaldwelI Development, Inc. This contract, denoted as the Newport Plaza Sewage Treatment Plant Agreement (hereinafter "Agreement"), provides, in pertinent part: 8. Right to Obtain Information. CALDWELL agrees that CHURCH shall have the right to obtain information records and to obtain access to the system for the purpose of inspection, with reasonable notice being given in advance of such requests .... CALDWELL shall provide CHURCH, in a timely mariner upon request, appropriate and necessary information regarding the PLANT and its operation. Accordingly, on behalf of the Church, we are requesting that your client provide to us the following information in a timely manner: 1. Total discharge flow, in millions of gallons, for each month from November 1999 through January 2003. 2. Total "normal operating expenses," as defined by paragraph 5, items (i) through (viii) of the Agreement, for each month from November 1999 through January 2003. 3. An itemization of the above expenses, showing what each was for (e.g., power, chemicals, operator, etc.). September 8, 2003 Page 2 The appropriate Cost of Living Adjustment applicable to Caldwell's "management fee," as provided by the Agreement ('~ 5, item (ix)), for each anniversary year from November 2000 through November 2002. Water meter readings submitted to CaldweI1 by the Church for each month (or such periods as were reported) from November 1999 through January, 2003. Thank you for your assistance in this matter. If'you have any questions regarding this request, please contact the undersiga~ed. Very truly yours, Randall G. Hurst CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, addressed as follows: James R. Clippinger, Esquire Caldwell & Keams 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendant Caldwell Development, Inc. METTE, EVANS & WOODSIDE Randall G. Hurst, Esquire Sup. Ct. I.D. No. 83931 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Newport Assembly of God Church Date: NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff vs. CALDWELL DEVELOPMENT, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5697 CIVIL CIVIL ACTION - LAW PRAECIPE Please enter the appearance of Steven J. Schiffman, Esquire, as attorney for the Defendant in the above[¢~p/~oned_ ~ matter. Atty. ID/No./ 25488 SERRATEI~LI, SCHIFFMAN, BROWN & CALHOON, P,C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff VS. CALDWELL DEVELOPMENT, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5697 CIVIL CIVIL ACTION' - LAW NOTICE TO PLEAD TO: NEWPORT ASSEMBLY OF GOD CHURCH and PAULA J. LEICHT, ESQUIRE and RANDALL G. HURST, ESQUIRE You are hereby notified to plead to the enclosed New Matter within Twenty (20) days from service hereof, or a default judgment may be entered against you. S. teven J//~{;f~t'fman, Esquire Attome~'ID #25488 SERRATELLI, SCHIFFMAN, BROWN &: CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-91t 70 NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff VS. CALDWELL DEVELOPMENT, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-5697 CIVIL : CIVIL ACTION' - LAW DEFENDANT'S ANSWER TO COMPLAINT AND NEW MATTER AND NOW comes Defendant, Caldwell Development, INc., by and through its attorney, Steven J. Schiffman, Esquire, and the law firm of Serratelli, Schiffman, Brown and Calhoon, P.C., and flies this Answer to the Complaint and New Matter and alleges as follows: 1. Denied. It is denied that the name of the Plaintiff is Newport Assembly of God Church, to the contrary it is believed that the actual name of the Plaintiff is Assembly of God Church of Newport, Pennsylvania. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that there is an agreement between the Defendant and the Plaintiff in this matter. To the extent that Paragraph 6 is a characterization of the Agreement attached as Exhibit A to the Complaint between the parties. It is denied as the writing speaks for itself. 7. Admitted in part and denied in part. It is admitted that the Agreement between the parties provided for payment of a fee. To the extent that paragraph 7 attempts to characterize the Agreement it is denied as the Agreement speaks for itself. 8. Admitted in part and denied in part. It is admilted that the Agreement has a provision as set forth in Section 5 thereof. To the extent that Paragraph 8 is a characterization of the Agreement, it is denied as the Agreement speaks for itself. 9. Admitted in part and denied in part. It is admitted that the Agreement has a provision regarding calculation of the Sewer Use Fee. To the extent that Paragraph 9 is a characterization of the Agreement, it is denied as the Agreement speaks for itself. 10. Admitted in part and denied in part. It is admitted that the Agreement has a provision regarding sewage contribution measurements. To the extent that Paragraph 10 is a characterization of the Agreement, it is denied as the Agreement speaks for itself. 11. Admitted in part, denied in part. It is admitted that Church provided some form of readings to Defendant. It is denied that the readings translated into the cost of the usage. To the contrary the readings were multiplied by a factor of 100. The charges were based upon the Church's estimated usage provided to Defendant. Attached as ]Exhibit A is letter from Defendant to Plaintiffwhieh sets forth the basis of the charges. It is further denied that invoices were provided to Church in 1999, to the contrary it is believed and therefore averred that invoices were submitted commencing September 1, 2000 for the period November, 1999 through August, 2000. Further, at no time did Church notify Defendant of the use being made and Defendant had no reason to believe that the charges were other than proper. 12. Denied. After reasonable investigation Defendantt is without information or belief as to the math of the matter asserted in paragraph 12 and it thus deemed denied. Strict proof thereof is demanded at trial. 13. Admitted in part and denied in part. It is admitted that at some point in time Defendant began submitting to the Plaintiffits invoices for the Sewer Use Fee. It is denied that the invoices were other than the actual charges for the Sewer Use Fe, to the contrary Church at all times billed what was believed to be the correct charges. 14. Admitted. Was 15. Admitted. 16. Denied. It is denied that the Agreement was not assigned to the purchasing entity and remains in full force and effect between the Church and Defendant. To the contrary the Agreement was assigned, as was the ownership of the sewer treatment plant to Newport Plaza Associates, LP, although the Church wrongfully refused to consent to the assignment as a device to get the parties to amend the Agreement. It is admitted that the Church did not consent to the assignment which in no way affects the actual assignment. Further, Church has been billed by the new owner and has refused to pay any current charge. 17. Admitted in part, denied in part. It is admitted that the Church has continued to discharge sewage to the treatment plant. It is also admitted that the Church has made no payments for the usage of since December of 2002. It is denied that any water meter readings were or should have been submitted to Defendant after the assiglunent of the Agreement by Defendant. 18. Denied. It is denied that after reasonable investigation, Defendant is without information and belief as to the allegations set forth in Paragraph 18 and they are therefore deemed denied. Strict proof thereof is demanded at trial. 19. Denied. It is denied that after reasonable investigation, Defendant is without information and belief as to the truth of the matter asserted in Pm'agraph 19 and the allegations are therefore deemed denied. Strict proof thereof is demanded at trial. 20. Admitted. 21. Admitted in part and denied in part. It is admitted that Plaintiffhas requested repayment of $10,765.92. It is denied that the Plaintiff is entitled or otherwise due the amount set forth in their demand. To the contrary, all sums paid to the Defendant were due and owing and properly received by the Defendant. 22. Admitted in part and denied in part. It is admits:ed that the Agreement between the parties includes a Clause 8. To the extent that Paragraph 212 is a characterization of the Agreement, the allegations are denied as the Agreement speaks for itself. 23. Admitted in part and denied in part. It is admitted that Exhibit B was sent to Defendant. To the extent that Paragraph 23 is a characterization of the Exhibit B, the allegations are denied as the Exhibit speaks for itself. 24. Denied. It is denied Caldwell did not provide the information or an opportunity to review Caldwell's records, to the contrary, at the time of the requested assignment Caldwell made its records available to Plaintiff's counsel who did go to Caldwell's offices to review the records. Subsequent to the filling of the writ of summons in this matter Church was given the opportunity and in fact did inspect and copy ail records desired. COUNT 1 - BREACH OF CONTRACT 25. The Defendant incorporates Paragraphs 1 through 24 of its Answer to the Complaint at if fully set forth herein. 26. Denied. Paragraph 26 is a conclusion of law to which no answer need be filed and is thus deemed denied. To the extent it is a factual allegation it is denied that the invoices tendered did not reflect the terms of the agreements regarding the: calculation of the Sewer Use Fee. To the contrary, the invoices reflected the proper Sewer Use Fee. 27. Denied. Paragraph 27 is a conclusion of law to which no answer need be filed and it is thus deemed denied. To the extent that the allegation is a factual allegation it is denied that the invoices were incorrect under the Agreement. To the .contrary, the invoices were properly calculated under the Agreement. 28. Denied. Paragraph 28 is a conclusion of law to which no answer need be made and is thus deemed denied. 29. Denied. Paragraph 29 is a conclusion of law to which no answer need be made and is thus deemed denied. NEW MATTER 30. From the beginning of the implementation of the Agreement between Church and Defendant, Church was made fully aware of the calculation of charges for usage. 31. Church being fully aware of the calculation and 'the usage consented to and paid the charges presented to Church on a monthly basis. 32. Church consented to and having agreed to the charges as presented has waived any and all claims it may have to any overpayment. 33. Any mistake in the reading of the meter was contributed to by Church. 34. Church at all times knew that the charges were not based upon meter readings. 35. Church at all times knew that the transfer of the sewage plant was pending and acted in such a way as to attempt to interfere with the sale for its own benefit in violation of the Agreement between the parties. WHEREFORE, Defendant Caldwell Development, Inc. demands that the Complaint of the Plaintiff Newport Assembly of God Church be dismissed with costs and such other relief as the Court deems proper awarded to Defendant. Attorney for Defendant 03/24/2004 14:24 FAX 717 232 2766 CALDW~LL & KEARN$ [~005/005 VERIFICATION I verify that thc statements made in the foregoing document are true and correct. I understand that false statvments hexein are made subject to the penalties o£ 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Date: CERTIFICATE OF SERVICE 1, Steven J. Schiffman, Esquire, do hereby certify that on this ~0 day of March , 2004, ! served a copy of the foregoing document by United States Mail, First Class, postage pre- paid, to the following person(s): Paula J. Leicht, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 P,~ndall G. Hurst, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Steven J. S~ffman, Esquire SERRA~I~I~LLI, SCHIFFMAN, BROWN~& CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorney for Defendant oa/~t/~oo~ ~:ao ~x ~7 ~ ~?ss c,L~LL & ~,~s aoo~ Jan,~U., ZUU~ 11:4~AM CALDWELL DEVELOPMEMT No,011] P. 2 CALD kHL D E V E LO P M IE N T C O M P i~. Ns)'eptember 21, 2000 Newport Assembly of God Church Atto: Lincla Finkeubinder 2~ l~orth 6da Street ~qewport, PA 170~4-1214 Dear Lhida~ l~er our phone conversation, I enclose a schedule of the water usage for the church for the past I0 months. Our calculations for sewer charge~ were based on the~e meter readings provided by Pastor Hill. An equivalent dwelling unit or ]CDU is based on 250 gallons (or portion thereof) of water usage per day. We calculate the chctrch's ~_.DT.T's by first taking the number of gallous of water used, divided by the number of days in the month or quarter, and then divide that number by 250. This sltows the number of ~DU's or potion of I~DT.T*s used in that time period. The church was connected to the sewage treatment plant on November 2, X999, appro~mately ten months prior to the billing date of August 31, 2000. Tho total amount of water used during that time was 155,000 gallons. The calculation for the entire ten months would bc as follows*. 185,000 gallons/10 months - 18,500 galllons per month divided by 30 (average number of days per month) -- 616.67/250 ~ 2.47 l~D~J's (rounded to $ for portion of I~-DU). This is how we determined that the church use~ $ EDU's per month and, therefore, bill at $375 per month (or $125 per EDU). Please feel free to call ifyou have additional questions. Thank you for your prompt payment of the sewer bill ~c]~F. Jme Endasures Very truly iyours, Jean H. Kelly Aecoun tin~ Manager RECEIVED TIME MAR. 24. 2:07PM NEWPORT ASSEMBLY OF GOD CHURCH, Plaintiff CALDWELL DEVELOPMENT, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5697 CIVIL : CIVIL ACTION - LAW REPLY TO NEW MATTER 30. Denied. To the contrary, the Church only received one letter from Caldwell regarding the calculation of sewer use charges, and that letter was not received at the "beginning of the implementation of the Agreement,"' but was some ten months later, in September of 2000. 31. It is admitted that the Church paid the charges that Caldwell presented. It is specifically Denied that the Church was ever made fi~lly aware of how each bill was calculated or that the Church consented to payment e,f amounts not authorized by the Agreement. To the contrary, the Church relied on the false representations of Caldwell that the amounts being charged were correct and proper. 32. The averment that the Church consented to the charges as presented is specifically Denied. The averment that the Church has waived any and all claims is a legal conclusion to which no reply is necessary. To the extent a reply is necessary, the averment is specifically Denied. To the contrary, the Church never consented to paying charges not calculated as required by the Agreement and never waived its rights under the Agreement. 33. Denied. It is denied that any mistake was made in reading the meter. To the contrary, the Church provided Caldwell with accurate meter readings, which Caldwell ignored in computing the sewer charges. As is evident from Plaintiff's Exhibit "A," Caldwell imposed a uniform monthly charge without regard to any meter readings, which such imposition is a breach of Caldwell's obligations under the Contract. 34. It is specifically Denied that the Church knew that the sewer charges were not based on meter readings. To the contrary, as clearly stated in Plaintiff's Exhibit "A," Caldwell falsely assured the Church that its calculations were based on meter readings. 35. It is Admitted that the Church knew that the transfer of the sewage treatment plant was pending. It is specifically Denied that the Church acted in such a way as to attempt to interfere with the sale and it is further Denied that the Church acted in violation of the Agreement. To the contrary, the Chtu-ch repeatedly made requests of Caldwell to discuss and resolve the matter of the assignment of the Agreement as provided therein and was consistently rebuffed and ignored in those efforts. WHEREFORE, Newport Assembly of God Church demands judgment against Defendant Caldwell Development, Inc. in the amount of Ten Thousand Seven Hundred Sixty-five and Ninety-two Cents ($10,765.92), together with interest and costs, and such other relief as this Court may deem proper. Date: By: Respectfully submitted, METTE, EVANS & WOODSIDE Sup. Ct. I.D. No. 83931 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Newport Assembly of God Church VERIFICATION I, Gary Bellis, Senior Pastor of the Newport Assembly c,f God Church have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. NEWPORT ASSEMBLY OF GOD CHURCH By: ~ Rev. Gary Bellls, Senior Pastor CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing Reply to Defendant's New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, addressed as follows: Steven J. Schiffman, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorneys for Defendant Caldwell Development, Inc. Date: By: METTE, EVANS & WOODSIDE G. Hurst, Esquire Sup. Ct. I.D. No. 83931 3401 North Front Slxeet P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiff, Newport Assembly of God Church NEWPORT ASSEMBLY OF GOD CHURCH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff v. No. 03-5697 CIVIL CALDWELL DEVELOPMENT, INC. Defendant CIVIL ACTION - LAW PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued and satisfied with prejudice. Respectfully submitted, METTE, EVANS & WOODSIDE By: /}JAt O'7/r Rand&ll G. Hurst, Esquire Supreme Court LD. #83931 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: ;7 (11( ,}-rlvS~ Attorneys for Plaintiffs CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing Praecipe to Discontinue upon the person( s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by first class mail, addn:ssed as follows: Steven A Schiffman, Esquire Serratelli, Schiffman, Brown and Calhoun 2080 Linglestown Road, Suite 201 Harrisburg, PA l7110 Respectfully submitted, METTE, EVANS & WOODSIDE By: ~6~ Ran all G. Hurst, Esquire Sup. Ct. I.D. No. 83931 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax: Date: ft Attorneys for Plaintiffs 'J..f. 2m? 'i ( 406836vl .1 -;->, c.' ,;,,) {) ; -