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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS
NO. ? 77XI
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
PETITION FOR PRELIMINARY INJUNCTION
AND NOW comes Plaintiff, York Waste Disposal, a division of Republic Services Group of
Pennsylvania, LLC ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp & Rausch,
LLP and files this Petition for an Order of Special/Preliminary Injunctive Relief pursuant to
Pennsylvania Rule of Civil Procedure 1531 and 65 Pa. C.S.A. § 713 on the following grounds:
1. York Waste is a waste disposal company organized and existing under the laws of
the state of Pennsylvania, with a principal place of business at 1110 East Princess Street, York,
Pennsylvania 17405.
2. Defendant, Lemoyne Borough, (the "Borough") is a duly incorporated Borough in
the Commonwealth of Pennsylvania, organized pursuant to Pennsylvania's Borough Code 53
P.S. §46190, et seg., with a business address of 510 Herman Avenue, Lemoyne Pennsylvania
17043-1822.
3. Defendant, Dr. James A. Yates, ("Yates") is an adult individual residing at 833
Kiehl Drive, Lemoyne, Pennsylvania 17043 and was at all relevant times President of the
Borough Council.
4. Defendant, Wayne S. Mountz, ("Mountz") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
5. Defendant, Susan J. West, ("West") is an adult individual residing at 351 Lowther
Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of the
Borough.
6. Defendant, Samuel R. Leach, ("Leach") is an adult individual residing at 917
Walnut Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of
the Borough.
7. Defendant, Jodie L. Ruediger, ("Ruediger") is an adult individual residing at 863
Pennsylvania Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
8. Defendant, Judith McAllister, ("McAllister") is an adult individual residing at 210
Cumberland Road, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
9. Defendant, Robert W. Farver, ("Farver") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
10. As set forth more fully in the Action for Declaratory Judgment, a copy of which is
attached hereto as Exhibit "A", the Borough has violated the Pennsylvania Sunshine, 65 Pa.
C.S.A. §701 et seg., which requires that the reason for holding the executive session must be
announced at the open meeting occurring immediately prior or subsequent to the executive
session.
11. On December 6, 2007, the Borough held an illegal executive session because the
Borough Council did not state the reason for holding the executive session in direction violation
of the Sunshine Act, specifically, 65 Pa. C.S.A. §708.
12. Upon information and belief, the executive session held on December 6, 2007 was
for an improper purpose and in direct violation of the Sunshine Act, specifically 65 Pa. C.S.A.
§708 et se.
13. At the meeting, McAllister, head of the Sanitation Committee and Borough
Council Member, announced that she and other members of the Committee had reviewed the
bids for the trash contract and determined that York Waste was a non-responsible bidder and that
the Council was going to award the contract to Penn Waste, the next lowest bidder.
14. The Borough trash contract is to commence January 1, 2008.
15. York Waste will suffer immediate and irreparable harm if the Court does not
enjoin the Borough from signing a contract with Penn Waste until the Court can make a judicial
determination regarding the legality of the December 6, 2007 meeting.
16. On December -3,? , 2007, Plaintiff filed its verified Action for Declaratory
Judgment with this Court. See Exhibit "A".
17. Unless the requested Preliminary Injunction Order is granted, York Waste will
suffer immediate and irreparable harm which cannot be compensated by damages by reason of
the Borough's illegal motion to award the trash contract at a regular business meeting which did
not meet the strict requirements of the Sunshine Act and the Borough will enter into a trash
contract with another party in violation of state law.
18. York Waste has no adequate remedy at law.
19. The Borough will not suffer any appreciable injury if this Petition is granted
because the status quo will be restored, and the Borough will merely be restrained from awarding
the 2008 refuse contract to Penn Waste.
20. York Waste is ready, willing and able to continue to service Lemoyne Borough
with refuse service at the current rates pending the Court's decision in this case.
21. Defendant's wrongful conduct is actionable; the rights of the Plaintiff are clear;
and Plaintiff is likely to succeed on the merits of its claims.
22. The Sunshine Act provides that the court may enjoin any challenged action until a
judicial determination of the legality of the meeting at which the action was adopted is reached.
WHEREFORE, Plaintiff requests this Honorable Court to enter the following relief:
1) To enter a preliminary injunction, pursuant to PA.R.C.P. No. 1531 (a) and
65 Pa. C.S.A. § 713 , enjoining Lemoyne Borough from entering into the
contract with Penn Waste and enjoining Penn Waste from hauling waste,
removing and disposing of garbage from Lemoyne Borough residents on
and after January 1, 2008; and
2) To enter an order that York Waste shall continue providing refuse service to
Lemoyne Borough pending the resolution of this case.
3) To schedule a hearing on the continuance of the preliminary injunction
within five days after the granting of the injunction, or within such other
time as the parties may agree, or as the court upon cause shown shall direct.
Respectfully submitted,
Dated: it ?'e? aG 10 d 7
BLAKEY, YOST, BUPP & BAUSCH, LLP
By:
Charles A. Rausch, quire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200938
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
, (tip ?&
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
PLAINTIFF,
NO.
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and notice are served
by entering a written appearance personally or by attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the
case may proceed without you and a judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
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.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
Tele: (717) 249-3166
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.
MidPenn Legal Services
401 E. Louther Street, Suite 103
Carlisle, PA 17013
1-800-822-5288
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
PLAINTIFF,
NO.
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
ACTION FOR DECLARATORY JUDGMENT
AND NOW comes Plaintiff, York Waste Disposal, a division of Republic Services Group
of Pennsylvania, LLC ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp &
Rausch, LLP and files this Action for Declaratory Judgment, and in support thereof, avers and
states as follows:
1. York Waste is a waste disposal company organized and existing under the laws of
the state of Pennsylvania, with a principal place of business at 1110 East Princess Street, York,
Pennsylvania 17405.
2. Defendant, Lemoyne Borough, (the "Borough") is a duly incorporated Borough in
the Commonwealth of Pennsylvania, organized pursuant to Pennsylvania's Borough Code 53
P.S. §46190, et seg., with a business address of 510 Herman Avenue, Lemoyne Pennsylvania
17043-1822.
3. Defendant, Dr. James A. Yates, ("Yates") is an adult individual residing at 833
Kiehl Drive, Lemoyne, Pennsylvania 17043 and was at all relevant times President of the
Borough Council.
4. Defendant, Wayne S. Mountz, ("Mountz") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
5. Defendant, Susan J. West, ("West") is an adult individual residing at 351 Lowther
Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of the
Borough.
6. Defendant, Samuel R. Leach, ("Leach") is an adult individual residing at 917
Walnut Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of
the Borough.
7. Defendant, Jodie L. Ruediger, ("Ruediger") is an adult individual residing at 863
Pennsylvania Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
8. Defendant, Judith McAllister, ("McAllister") is an adult individual residing at 210
Cumberland Road, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
9. Defendant, Robert W. Farver, ("Farver") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
10. From 2005 to 2007, York Waste was contracted by the Borough to haul waste and
remove and dispose of garbage.
11. In September 2007, the Borough advertised for bids for a new contractor to
haul waste and remove and dispose of garbage.
12. Prior to October 4, 2007, York Waste submitted its timely bid proposal to the
Borough.
13. The bids were opened at the October 4, 2007 Borough Council meeting and the
Borough Council, comprised of Yates, Mountz, West, Leach, Ruediger, McAllister, and Farver
(collectively the "Borough Council"), accepted York Waste's Bid.
14. On October 4, 2007, the Borough Council did not make any mention of an
executive session for a future time.
15. On November 1, 2007, the Borough Council held its regular business meeting and
the Borough Council did not make any announcement regarding an executive session for a future
time.
16. On December 6, 2007, the Borough Council held its regular business' meeting.
17. The December 6, 2007 Agenda did not indicate that an executive session was to
be held.
19. At the beginning of the meeting, the Borough Council President apologized for
beginning the meeting late and explained that the Borough Council held an executive session.
20. No other mention was made regarding the executive session at the December 6,
2007 meeting.
21. The Borough Council did not state the reason for holding the executive session in
direct violation of the Sunshine Act, 65 Pa. C.S.A. § 701 et. seq., which provides that the reason
for holding the executive session must be announced at the open meeting occurring immediately
prior or subsequent to the executive session.
22. The Sunshine Act requires that an executive session can only be held when
reasons are given, and the reasons stated by the public agency must be specific, indicating a real,
discrete matter that is best addressed in private. 65 Pa. C.S.A. § 708; Reading Eagle Co. v.
Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993).
23. Following the illegal executive session, the Borough Council went into its regular
meeting.
24. At the meeting, McAllister, head of the Sanitation Committee and Borough
Council Member, announced that she and other members of the Committee had reviewed the
bids and determined that York Waste was a non-responsible bidder and that the Council was
going to award the contract to Penn Waste, the next lowest bidder.
25. A representative from York Waste asked the Borough Council how it had reached
its decision that York Waste was a non-responsible bidder. The Borough Council indicated that
this was an improper inquiry that the Borough Council would not discuss.
26. There was no further discussion by the Borough Council on the award of the trash
contract.
27. Thereafter, the Borough Council approved motions to disqualify York Waste and
to award the contract to Penn Waste, without any discussions and without any opportunity for
public comment on the proposed motions.
28. Upon information and belief, the executive session held on December 6, 2007 was
for an improper purpose and in direct violation of the Sunshine Act, 65 Pa. C.S.A. § 708, which
permits executive sessions for limited and specifically enumerated reasons.
29. Upon information and belief, York Waste believes that the illegal executive
session was held to discuss the award of the trash contract and the bidding process is not the
proper subject for an executive session.
30. Any and all official action taken at the December 6, 2007 is invalid since the
meeting did not meet the specific requirements of the Sunshine Act, 65 Pa. C.S.A. § 713.
31. York Waste is ready, willing, and able to continue servicing Lemoyne Borough at
the current rates, pending the Court's decision in this case.
WHEREFORE, Plaintiffs, York Waste, request this Honorable Court to enter the
following relief:
1) To declare, pursuant to 65 Pa. C.S.A §713, any and all official action taken at the
December 6, 2007 regular business meeting of Lemoyne Borough, including the motion to award
the Solid Waste Collection Contract to Penn Waste, invalid and to enter an injunction, pursuant
to 65 Pa. C.S.A §713, enjoining Lemoyne Borough from entering into the contract with Penn
Waste;
2) To award to York Waste, pursuant to 65 Pa. C.S.A. §714.1, reasonable attorney's
fees and costs for this litigation.
Dated:7ii. c- = 2n
Respectfully,
BLAKEY, YOST, BUPP & RAUSCH, LLP
By: G?-ccA
Charles A. Rausch, Es uire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200538
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
VERIFICATION
I, the Plaintiff in the within action, have read the foregoing Action for Declaratory
Judgment and hereby affirm that it is true and correct to the best of my personal knowledge,
information and belief. The language of the foregoing document is that of my attorney and not
my own, but it is based on information which I have given to my attorney. This verification and
statement is made pursuant to 18 Pa. C.S. §4904 relating to unworn falsification to authorities.
YORK WASTE DISPOSAL,
a division of REPUBLIC
SERVICES OF
PENNSYLVANIA, LLC
BY:
Date Mark A. Pergolese, General Manager
v" U
z, `r
z
r
i
YORK WASTE DISPOSAL, a division IN THE COURT OF COMMON PLEAS OF
of REPUBLIC SERVICES GROUP CUMBERLAND COUNTY, PENNSYLVANIA
OF PENNSYLVANIA, LLC,
PLAINTIFF
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS
KEITH A. SULTZBAUGH,
PLAINTIFF
V.
LEMOYNE BOROUGH,
DEFENDANT
07-7729 CIVIL TERM
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 07-7730 CIVIL TERM
ORDER OF COURT
AND NOW, this day of December, 2007, IT IS ORDERED that
no action is taken on the petitions for a preliminary injunction at 07-7729 Civil and 07-
7730 Civil.
By theyCourt,
Edgar B. Bayley, J.
Charles A. Rausch, Esquire
For Plaintiffs f? 1",iwksal
y z/x l,, 7
Y
i
JW
--i
YORK WASTE DISPOSAL, a division IN THE COURT OF COMMON PLEAS OF
of REPUBLIC SERVICES GROUP CUMBERLAND COUNTY, PENNSYLVANIA
OF PENNSYLVANIA, LLC,
PLAINTIFF
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS 07-7729 CIVIL TERM
----------------------------------------------------------------------------------------
KEITH A. SULTZBAUGH, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEMOYNE BOROUGH,
DEFENDANT 07-7730 CIVIL TERM
MEMORANDUM OPINION AND ORDER OF COURT
Bayley, J., December 27, 2007:
On both of the above dockets the plaintiff seeks a preliminary injunction.
At 07-7730, plaintiff seeks the following relief:
1) To enter a special injunction, pursuant to Pa.R.C.P. No. 1531
(a), enjoining Lemoyne Borough from entering into a contract with
Penn Waste and enjoining Penn Waste from hauling waste,
removing and disposing of garbage from Lemoyne Borough
residents on and after January 1, 2008; and
2) To enter an order that York Waste shall continue providing
refuse service to Lemoyne Borough pending the resolution of this
case.
At 07-7729, plaintiff seeks the following relief:
1) To enter a preliminary injunction, pursuant to Pa.R.C.P. No.
1531 (a) and 65 Pa. C.S.A. § 713, enjoining Lemoyne Borough
from entering into a contract with Penn Waste and enjoining Penn
Waste from hauling waste, removing and disposing of garbage from
Lemoyne Borough residents on and after January 1, 2008; and
2) To enter an order that York Waste shall continue providing
refuse service to Lemoyne Borough pending the resolution of this
case.
Neither in the copies of the complaints attached to each petition or in the
petitions for a preliminary injunction in each case has Penn Waste been named a
defendant. Because each petition for a preliminary injunction seeks an order
"enjoining Lemoyne Borough from entering into the contract with Penn Waste
and enjoining Penn Waste from hauling waste, removing or disposing of garbage
from Lemoyne Borough residents on or after January 1, 2008," obviously, Penn
Waste is an indispensable party. We will not schedule a hearing for a preliminary
injunction that includes relief against Penn Waste until a complaint is filed against
Penn Waste.
ORDER OF COURT
AND NOW, this 2 day of December, 2007, IT IS ORDERED that
no action is taken on the petitions for a preliminary injunction at 07-7729 Civil and 07-
7730 Civil.
Edgar B. Bayley, J.
Charles A. Rausch, Esquire
For Plaintiffs
:sal
t ,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
1
No. C T- --TTZP\
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
AMENDED PETITION FOR PRELIMINARY INJUNCTION
AND NOW comes Plaintiff, Republic Services Group of Pennsylvania, LLC d/b/a York
Waste Disposal ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp & Rausch,
LLP and files this Amended Petition for an Order of Special/Preliminary Injunctive Relief
pursuant to Pennsylvania Rule of Civil Procedure 1531 and 65 Pa. C.S.A. § 713 on the following
grounds:
1. York Waste is a waste disposal company organized and existing under the laws of
the state of Pennsylvania, with a principal place of business at 3730 Sandhurst Drive York,
Pennsylvania 17406.
2. Defendant, Lemoyne Borough, (the "Borough") is a duly incorporated Borough in
the Commonwealth of Pennsylvania, organized pursuant to Pennsylvania's Borough Code 53
P.S. §46190, et SeMc ., with a business address of 510 Herman Avenue, Lemoyne Pennsylvania
17043-1822.
3. Defendant, Dr. James A. Yates, ("Yates") is an adult individual residing at 833
Kiehl Drive, Lemoyne, Pennsylvania 17043 and was at all relevant times President of the
Borough Council.
4. Defendant, Wayne S. Mountz, ("Mountz") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
5. Defendant, Susan J. West, ("West") is an adult individual residing at 351 Lowther
Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of the
Borough.
6. Defendant, Samuel R. Leach, ("Leach") is an adult individual residing at 917
Walnut Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of
the Borough.
7. Defendant, Jodie L. Ruediger, ("Ruediger") is an adult individual residing at 863
Pennsylvania Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
8. Defendant, Judith McAllister, ("McAllister") is an adult individual residing at 210
Cumberland Road, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
9. Defendant, Robert W. Farver, ("Farver") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
10. Penn Waste, Inc. ("Penn Waste") is a waste disposal company organized and
existing under the laws of the state of Pennsylvania, with a principal place of business at 85
Brickyard Road, Manchester, PA 14345.
11. As set forth more fully in the Action for Declaratory Judgment, a copy of which is
attached hereto as Exhibit "A", the Borough has violated the Pennsylvania Sunshine, 65 Pa.
C.S.A. §701 et seq., which requires that the reason for holding the executive session must be
announced at the open meeting occurring immediately prior or subsequent to the executive
session.
12. On December 6, 2007, the Borough held an illegal executive session because the
Borough Council did not state the reason for holding the executive session in direction violation
of the Sunshine Act, specifically, 65 Pa. C.S.A. §708.
13. Upon information and belief, the executive session held on December 6, 2007 was
for an improper purpose and in direct violation of the Sunshine Act, specifically 65 Pa. C.S.A.
§708 et M.
14. At the meeting, McAllister, head of the Sanitation Committee and Borough
Council Member, announced that she and other members of the Committee had reviewed the
bids for the trash contract and determined that York Waste was a non-responsible bidder and that
the Council was going to award the contract to Penn Waste, the next lowest bidder.
15. The Borough trash contract is to commence January 1, 2008.
16. York Waste will suffer immediate and irreparable harm if the Court does not
enjoin the Borough from signing a contract with Penn Waste until the Court can make a judicial
determination regarding the legality of the December 6, 2007 meeting.
17. On January , 2007, Plaintiff filed its verified Amended Action for
Declaratory Judgment with this Court. See Exhibit "A".
18. Unless the requested Preliminary Injunction Order is granted, York Waste will
suffer immediate and irreparable harm which cannot be compensated by damages by reason of
the Borough's illegal motion to award the trash contract at a regular business meeting which did
not meet the strict requirements of the Sunshine Act and the Borough will enter into a trash
contract with another party in violation of state law.
19. York Waste has no adequate remedy at law.
20. The Borough will not suffer any appreciable injury if this Petition is granted
because the status quo will be restored, and the Borough will merely be restrained from awarding
the 2008 refuse contract to Penn Waste.
21. York Waste is ready, willing and able to continue to service Lemoyne Borough
with refuse service at the current rates pending the Court's decision in this case.
22. Defendant's wrongful conduct is actionable; the rights of the Plaintiff are clear;
and Plaintiff is likely to succeed on the merits of its claims.
23. The Sunshine Act provides that the court may enjoin any challenged action until a
judicial determination of the legality of the meeting at which the action was adopted is reached.
WHEREFORE, Plaintiff requests this Honorable Court to enter the following relief:
1) To enter a preliminary injunction, pursuant to PA.R.C.P. No. 1531 (a) and
65 Pa. C.S.A. § 713 , enjoining Lemoyne Borough from entering into the
contract with Penn Waste and enjoining Penn Waste from hauling waste,
removing and disposing of garbage from Lemoyne Borough residents on
and after January 1, 2008; and
2) To enter an order that York Waste shall continue providing refuse service to
Lemoyne Borough pending the resolution of this case.
3) To schedule a hearing on the continuance of the preliminary injunction
within five days after the granting of the injunction, or within such other
time as the parties may agree, or as the court upon cause shown shall direct.
Respectfully submitted,
Dated: 113 I(&
BLAKEY, YOST, BUPP & BAUSCH, LLP
8 4:1 - ? Ian x , ; C
harles A. Rausch, squire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200938
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
AMENDED ACTION FOR DECLARATORY JUDGMENT
AND NOW comes Plaintiff, Republic Services Group of Pennsylvania, LLC d/b/a York
Waste Disposal ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp & Rausch,
LLP and files this Amended Action for Declaratory Judgment, and in support thereof, avers and
states as follows:
1. York Waste is a waste disposal company organized and existing under the laws of
the state of Pennsylvania, with a principal place of business at 3730 Sandhurst Drive York,
Pennsylvania 17406.
2. Defendant, Lemoyne Borough, (the "Borough") is a duly incorporated Borough in
the Commonwealth of Pennsylvania, organized pursuant to Pennsylvania's Borough Code 53
P. S. §46190, et seq., with a business address of 510 Herman Avenue, Lemoyne Pennsylvania
17043-1822.
3. Defendant, Dr. James A. Yates, ("Yates") is an adult individual residing at 833
Kiehl Drive, Lemoyne, Pennsylvania 17043 and was at all relevant times President of the
Borough Council.
4. Defendant, Wayne S. Mountz, ("Mountz") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
5. Defendant, Susan J. West, ("West") is an adult individual residing at 351 Lowther
Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of the
Borough.
6. Defendant, Samuel R. Leach, ("Leach") is an adult individual residing at 917
Walnut Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of
the Borough.
7. Defendant, Jodie L. Ruediger, ("Ruediger") is an adult individual residing at 863
Pennsylvania Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
8. Defendant, Judith McAllister, ("McAllister") is an adult individual residing at 210
Cumberland Road, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
9. Defendant, Robert W. Farver, ("Farver") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
10. Penn Waste, Inc. ("Penn Waste") is a waste disposal company organized and
existing under the laws of the state of Pennsylvania, with a principal place of business at 85
Brickyard Road, Manchester, PA 14345.
11. From 2005 to 2007, York Waste was contracted by the Borough to haul waste and
remove and dispose of garbage.
12. In September 2007, the Borough advertised for bids for a new contractor to
haul waste and remove and dispose of garbage.
13. Prior to October 4, 2007, York Waste submitted its timely bid proposal to the
Borough.
14. The bids were opened at the October 4, 2007 Borough Council meeting and the
Borough Council, comprised of Yates, Mountz, West, Leach, Ruediger, McAllister, and Farver
(collectively the "Borough Council"), accepted York Waste's Bid.
15. On October 4, 2007, the Borough Council did not make any mention of an
executive session for a future time.
16. On November 1, 2007, the Borough Council held its regular business meeting and
the Borough Council did not make any announcement regarding an executive session for a future
time.
17. On December 6, 2007, the Borough Council held its regular business meeting.
18. The December 6, 2007 Agenda did not indicate that an executive session was to
be held.
19. At the beginning of the meeting, the Borough Council President apologized for
beginning the meeting late and explained that the Borough Council held an executive session.
20. No other mention was made regarding the executive session at the December 6,
2007 meeting.
21. The Borough Council did not state the reason for holding the executive session in
direct violation of the Sunshine Act, 65 Pa. C.S.A. § 701 et. seq., which provides that the reason
for holding the executive session must be announced at the open meeting occurring immediately
prior or subsequent to the executive session.
22. The Sunshine Act requires that an executive session can only be held when
reasons are given, and the reasons stated by the public agency must be specific, indicating a real,
discrete matter that is best addressed in private. 65 Pa. C.S.A. § 708; Reading Eagle Co. v.
Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993).
23. Following the illegal executive session, the Borough Council went into its regular
meeting.
24. At the meeting, McAllister, head of the Sanitation Committee and Borough
Council Member, announced that she and other members of the Committee had reviewed the
bids and determined that York Waste was a non-responsible bidder and that the Council was
going to award the contract to Penn Waste, the next lowest bidder.
25. A representative from York Waste asked the Borough Council how it had reached
its decision that York Waste was a non-responsible bidder. The Borough Council indicated that
this was an improper inquiry that the Borough Council would not discuss.
26. There was no further discussion by the Borough Council on the award of the trash
contract.
27. Thereafter, the Borough Council approved motions to disqualify York Waste and
to award the contract to Penn Waste, without any discussions and without any opportunity for
public comment on the proposed motions.
28. Upon information and belief, the executive session held on December 6, 2007 was
for an improper purpose and in direct violation of the Sunshine Act, 65 Pa. C.S.A. § 708, which
permits executive sessions for limited and specifically enumerated reasons.
29. Upon information and belief, York Waste believes that the illegal executive
session was held to discuss the award of the trash contract and the bidding process is not the
proper subject for an executive session.
30. Any and all official action taken at the December 6, 2007 is invalid since the
meeting did not meet the specific requirements of the Sunshine Act, 65 Pa. C.S.A. § 713.
31. York Waste is ready, willing, and able to continue servicing Lemoyne Borough at
the current rates, pending the Court's decision in this case.
WHEREFORE, Plaintiffs, York Waste, request this Honorable Court to enter the
following relief.
1) To declare, pursuant to 65 Pa. C.S.A §713, any and all official action taken at the
December 6, 2007 regular business meeting of Lemoyne Borough, including the motion to award
the Solid Waste Collection Contract to Penn Waste, invalid and to enter an injunction, pursuant
to 65 Pa. C.S.A §713, enjoining Lemoyne Borough from entering into the contract with Penn
Waste;
2) To award to York Waste, pursuant to 65 Pa. C.S.A. §714.1, reasonable attorney's
fees and costs for this litigation.
Respectfully,
Dated: ' /31ce
BLAKEY, YOST, BUPP & RAUSCH, LLP
By-_-
Charles A. Rausch, E quire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200538
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
VERIFICATION
I, the Plaintiff in the within action, have read the foregoing Amended Action for
Declaratory Judgment and hereby affirm that it is true and correct to the best of my personal
knowledge, information and belief. The language of the foregoing document is that of my
attorney and not my own, but it is based on information which I have given to my attorney. This
verification and statement is made pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification
to authorities.
REPUBLIC
SERVICES OF
PENNSYLVANIA, LLC,
d/b/a YORK WASTE DISPOSAL
1 oa ?o $ BY:
Date Mark A. Pergolese, Genera Manager
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff :
V.
Imcr?cl??-?4t2.-,?G??c c?7fLC ?o?:
Defendants
CIVIL ACTION-
JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and notice are served
by entering a written appearance personally or by attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the
case may proceed without you and a judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
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.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
Tele: (717) 249-3166
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.
MidPenn Legal Services
401 E. Louther Street, Suite 103
Carlisle, PA 17013
1-800-822-5288
•
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
NO. CAA 1-1t C'. CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
AMENDED ACTION FOR DECLARATORY JUDGMENT
AND NOW comes Plaintiff, Republic Services Group of Pennsylvania, LLC d/b/a York
Waste Disposal ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp & Rausch,
LLP and files this Amended Action for Declaratory Judgment, and in support thereof, avers and
states as follows:
1. York Waste is a waste disposal company organized and existing under the laws of
the state of Pennsylvania, with a principal place of business at 3730 Sandhurst Drive York,
Pennsylvania 17406.
2. Defendant, Lemoyne Borough, (the "Borough") is a duly incorporated Borough in
the Commonwealth of Pennsylvania, organized pursuant to Pennsylvania's Borough Code 53
P. S. §46190, et seg., with a business address of 510 Herman Avenue, Lemoyne Pennsylvania
17043-1822.
3. Defendant, Dr. James A. Yates, ("Yates") is an adult individual residing at 833
Kiehl Drive, Lemoyne, Pennsylvania 17043 and was at all relevant times President of the
Borough Council.
4. Defendant, Wayne S. Mountz, ("Mountz") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
5. Defendant, Susan J. West, ("West') is an adult individual residing at 351 Lowther
Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of the
Borough.
6. Defendant, Samuel R. Leach, ("Leach") is an adult individual residing at 917
Walnut Street, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member of
the Borough.
7. Defendant, Jodie L. Ruediger, ("Ruediger") is an adult individual residing at 863
Pennsylvania Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
8. Defendant, Judith McAllister, ("McAllister") is an adult individual residing at 210
Cumberland Road, Lemoyne, Pennsylvania 17043 and was at all relevant times a council
member of the Borough.
9. Defendant, Robert W. Farver, ("Farver") is an adult individual residing at 844
Indiana Avenue, Lemoyne, Pennsylvania 17043 and was at all relevant times a council member
of the Borough.
s
10. Penn Waste, Inc. ("Penn Waste") is a waste disposal company organized and
existing under the laws of the state of Pennsylvania, with a principal place of business at 85
Brickyard Road, Manchester, PA 14345.
11. From 2005 to 2007, York Waste was contracted by the Borough to haul waste and
remove and dispose of garbage.
12. In September 2007, the Borough advertised for bids for a new contractor to
haul waste and remove and dispose of garbage.
13. Prior to October 4, 2007, York Waste submitted its timely bid proposal to the
Borough.
14. The bids were opened at the October 4, 2007 Borough Council meeting and the
Borough Council, comprised of Yates, Mountz, West, Leach, Ruediger, McAllister, and Farver
(collectively the "Borough Council'), accepted York Waste's Bid.
15. On October 4, 2007, the Borough Council did not make any mention of an
executive session for a future time.
16. On November 1, 2007, the Borough Council held its regular business meeting and
the Borough Council did not make any announcement regarding an executive session for a future
time.
17. On December 6, 2007, the Borough Council held its regular business meeting.
18. The December 6, 2007 Agenda did not indicate that an executive session was to
be held.
19. At the beginning of the meeting, the Borough Council President apologized for
beginning the meeting late and explained that the Borough Council held an executive session.
20. No other mention was made regarding the executive session at the December 6,
2007 meeting.
21. The Borough Council did not state the reason for holding the executive session in
direct violation of the Sunshine Act, 65 Pa. C.S.A. § 701 et. seq., which provides that the reason
for holding the executive session must be announced at the open meeting occurring immediately
prior or subsequent to the executive session.
22. The Sunshine Act requires that an executive session can only be held when
reasons are given, and the reasons stated by the public agency must be specific, indicating a real,
discrete matter that is best addressed in private. 65 Pa. C.S.A. § 708; Reading Eagle Co. v.
Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993).
23. Following the illegal executive session, the Borough Council went into its regular
meeting.
24. At the meeting, McAllister, head of the Sanitation Committee and Borough
Council Member, announced that she and other members of the Committee had reviewed the
bids and determined that York Waste was a non-responsible bidder and that the Council was
going to award the contract to Penn Waste, the next lowest bidder.
25. A representative from York Waste asked the Borough Council how it had reached
its decision that York Waste was a non-responsible bidder. The Borough Council indicated that
this was an improper inquiry that the Borough Council would not discuss.
26. There was no further discussion by the Borough Council on the award of the trash
contract.
27. Thereafter, the Borough Council approved motions to disqualify York Waste and
to award the contract to Penn Waste, without any discussions and without any opportunity for
public comment on the proposed motions.
28. Upon information and belief, the executive session held on December 6, 2007 was
for an improper purpose and in direct violation of the Sunshine Act, 65 Pa. C.S.A. § 708, which
permits executive sessions for limited and specifically enumerated reasons.
29. Upon information and belief, York Waste believes that the illegal executive
session was held to discuss the award of the trash contract and the bidding process is not the
proper subject for an executive session.
30. Any and all official action taken at the December 6, 2007 is invalid since the
meeting did not meet the specific requirements of the Sunshine Act, 65 Pa. C.S.A. § 713.
31. York Waste is ready, willing, and able to continue servicing Lemoyne Borough at
the current rates, pending the Court's decision in this case.
WHEREFORE, Plaintiffs, York Waste, request this Honorable Court to enter the
following relief.
1) To declare, pursuant to 65 Pa. C.S.A §713, any and all official action taken at the
December 6, 2007 regular business meeting of Lemoyne Borough, including the motion to award
the Solid Waste Collection Contract to Penn Waste, invalid and to enter an injunction, pursuant
to 65 Pa. C.S.A §713, enjoining Lemoyne Borough from entering into the contract with Penn
Waste;
2) To award to York Waste, pursuant to 65 Pa. C.S.A. §714.1, reasonable attorney's
fees and costs for this litigation.
r
Dated: /
Respectfully,
BLAKEY, YOST, BUPP & BAUSCH, LLP
By d Cy
Charles A. Rausch, E )quire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200538
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
VERIFICATION
I, the Plaintiff in the within action, have read the foregoing Amended Action for
Declaratory Judgment and hereby affirm that it is true and correct to the best of my personal
knowledge, information and belief. The language of the foregoing document is that of my
attorney and not my own, but it is based on information which I have given to my attorney. This
verification and statement is made pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification
to authorities.
REPUBLIC
SERVICES OF
PENNSYLVANIA, LLC,
d/b/a YORK WASTE DISPOSAL
l o? 4? BY:
Date Mark A. Pergolese, Genera Manager
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
and ROBERT W. FARVER,
DEFENDANTS
JURY TRIAL DEMANDED
STIPULATION OF PARTIES TO AMEND PETITION AND COMPLAINT
1. The parties hereby stipulate that Penn Waste, inc. (hereinafter "Penn Waste") is
an indispensable party to the above-captioned matter.
2. Therefore, the parties agree to join Penn Waste as a Defendant and respectfully
request that the Court amend the Caption to include Penn Waste pursuant to Pa.R.C.P. 2232(c).
3. The parties hereby stipulate that the Petition and Complaint can be amended,
pursuant to Pa. K.C.P. 1033, to correct the name and address of Plaintiff, York Waste Disposal, a
division of Republic Services Group of Pennsylvania, LLC, with a principal place of business at
1110 East Princess Street, York, Pennsylvania 17405 to Republic Services of Pennsylvania, LLC
d/b/a York Waste Disposal with a principal place of business at 3730 Sandhurst Drive, York,
Pennsylvania 17406.
NO.
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
-,
Respectfully Submitted,
BLAKEY YOST, BUP & BAUSCH, LLP
c
Charles A. Rausch, Esquire
Attorney I.D. # 36814
Nicole M. Ehrhart, Esquire
Attorney I.D. # 200538
Attorneys for Plaintiff
17 East Market Street
York, PA 17401
(717) 845-3674
JOHNSON, DUFFIE, STEWART & WEIDNER
By: L
Michael J. Cassidy, Esquire
Attorney I.D. # 82/G¢
Attorney for Lemoyne Borough
301 Market Street
P.O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
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REPUBLIC SERVICES GROUP IN THE COURT OF COMMON PLEAS OF
OF PENNSYLVANIA, LLC CUMBERLAND COUNTY, PENNSYLVANIA
d/b/a YORK WASTE DISPOSAL
V.
LEMOYNE BOROUGH : NO. 2007 - 7729 CIVIL TERM ..?
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCCALLISTER, CIVIL ACTION - LAW
ROBERT W. FARVER, and
PENN WASTE, INC.
KEITH A. SULTZBAUGH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEMOYNE BOROUGH and NO. 2007 - 7730 CIVIL TERM
PENN WASTE, INC.
ORDER OF COURT
AND NOW, this 9TH day of JANUARY, 2008, this case having been reassigned
to the undersigned, a hearing on Plaintiffs' request for a Preliminary Injunction is
scheduled for TUESDAY, JANUARY 15, 2008, at 1:30 a.m. in Courtroom # 3 of the
Cumberland County Courthouse, Carlisle, Pa. 17013.
y the Court,
Edward E. Guido, J.
Nicole M. Ehrhart, Esquire
Carolyn J. Pugh, Esquire
Charles A. Rausch, Esquire
Michael J. Cassidy, Esquire
Neil A. Slenker, Esquire
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AUViUNOi u,G' d 3Hi JO
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
NO. 07-7729 Civil
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
I, Michael J. Cassidy, Esquire, attorney for Defendants Lemoyne Borough, Dr. James A.
Yates, Wayne S. Mountz, Susan J. West, Samuel R. Leach, Jodie L. Ruediger, Judith McAllister,
and Robert Farver accept service of the Petition for Special/Preliminary Injunction filed in the
above action.
Michael J. Cassidy
Johnson, Duffie, Stewart & Weidner
301 Market Street - PO Box 109
Lemoyne, PA 17043-0109
Telephone: (717) 761-4540 ext. 138
Fax: (717) 761-3015
Dated: ? /00
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
NO. 07-7729 Civil
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
I, Michael J. Cassidy, Esquire, attorney for Defendants Lemoyne Borough, Dr. James A.
Yates, Wayne S. Mountz, Susan J. West, Samuel R. Leach, Jodie L. Ruediger, Judith McAllister,
and Robert Farver accept service of the Complaint filed in the above action.
Michael J. Cassidy
Johnson, Duffle, Stewart & Weidner
301 Market Street - PO Box 109
Lemoyne, PA 17043-0109
Telephone: (717) 761-4540 ext. 138
Fax: (717) 761-3015
Dated: V 7 /-8
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
NO. 07-7729 Civil
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
I, Neil A. Slenker, Esquire, attorney for Defendant Penn Waste, Inc. accept service of the
Complaint filed in the above action.
Neil A. Slenker, Esquire
Stock & Leader
Susquehanna Commerce Center East
221 West Philadelphia Street Suite E600
York, Pennsylvania 17401-2994
Dated: D
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
NO. 07-7729 Civil
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
I, Neil A. Slenker, Esquire, attorney for Defendant Penn Waste, Inc. accept service of the
Petition for Special/Preliminary Injunction :eil th ove ion
. Slenke r, Esquire
Stock & Leader
Susquehanna Commerce Center East
221 West Philadelphia Street Suite E600
York, Pennsylvania 17401-2994
Dated: a
1 f77
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC, NO.: 07-7729
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearances of Neil A. Slenker, Esquire and Andrew C. Spears, Esquire on
behalf of the Defendant, Penn Waste, Inc., in the above matter.
Respectfully submitted,
1-9ng
Date
STOCK AND LEADER
By:
St me Court I.D. #77974
Andrew C. Spears, Esquire
Supreme Court I.D. #87737
Susquehanna Commerce Center - East
Suite 600
221 West Philadelphia Street
York, PA 17401-2994
Telephone: (717) 846-9800
Fax: (717) 843-6134
c
10
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
YORK WASTE DISPOSAL, a division of
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC, NO.: 07-7729
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
CERTIFICATE OF SERVICE
AND NOW, this tj day of 2008, I, Mary K. Ridings,
Paralegal for Neil A. Slenker, Esquire, of the law firm 040 Stock and Leader, attorneys for
Defendant, Penn Waste, Inc., hereby certify that I served the within Praecipe for Entry of
Appearance this day by depositing the same in the United States mail, postage prepaid, in York,
Pennsylvania, addressed to:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401-1205
Michael J. Cassidy, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
PO Box 309
Lemoyne, PA 17043-0109
STOCK AND LEADER
14-0
Date
By:
Mary K.6 ding, Par egal for
Neil A. nker, Esq ire
Supreme Court I.D. #77974
Susquehanna Commerce Center East
Suite 600
221 West Philadelphia Street
York, PA 17404
Telephone: (717) 846-9800
Fax: (717) 843-6134
t? O
a ..
Johnson, Duffie, Stewart & Weidner
By: John R. Ninosky, Esquire
I.D. No. 78000
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
e-mail: jrn@jdsw.com
(717) 761-4540
Attorney for Defendants, Lemoyne
Borough, Yates, Mountz, West,
Leach, Ruediger, McAllister and
Farver
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a YORK
DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER and
PENN WASTE, INC.,
Defendants
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 07-7729 Civil
DECLARATORY JUDGMENT ACTION
: JURY TRIAL DEMANDED
PRAECIPE
PLEASE enter the appearance of the undersigned on behalf of the Defendants,
Lemoyne Borough, Dr. James A. Yates, Wayne S. Mountz, Susan J. West, Samuel R.
Leach, Jodie L. Ruediger, Judith McAllister and Robert W. Farver in the above-
captioned matter.
JOHNSON, DUFFIE, STEWART & WEIDNER
By
Jolfn R. Ninosky, Esquire
I.D. #: 78000
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendant, Lemoyne
Borough, Yates, Mountz, West, Leach,
Ruediger, McAllister and Farver
DATE: 111flon
.1 -
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly served upon the
following counsel of record, by depositing the same in the United States Mail, postage
prepaid, in Lemoyne, Pennsylvania, on 0?Q Qa
Charles A. Rausch, Esquire
Nicole M. Ehrhart, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401
Attorneys for Plaintiffs
Penn Waste
85 Brickyard Road
Manchester, PA 14345
Defendant
JOHNSON, DUFFIE, STEWART & WEIDNER
By e??4 A-14wa5t4
John . Ninosky, Esquire
I. D. #: 78000
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendant, Lemoyne
Borough, Yates, Mountz, West, Leach,
Ruediger, McAllister and Farver
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Johnson, Duffle, Stewart & Weidner
By: Michael J. Cassidy
I.D. No. 82164
John R. Ninosky
I. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
mjc@jdsw.com
Attorneys for Defendants Lemoyne
Borough, Yates, Mountz, West,
Leach, Ruediger, McAllister and
Farver
REPUBLIC SERVICES GROUP OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, LLC d/bla YORK CUMBERLAND COUNTY, PENNA.
DISPOSAL,
NO. 2007-7729
Plaintiff
DECLARATORY JUDGMENT ACTION
V.
LEMOYNE BOROUGH, DR. JAMES A.
YATES, WAYNE S. MOUNTZ, SUSAN
J. WEST, SAMUEL R. LEACH, JODIE
L. RUEDIGER, JUDITH MCALLISTER,
ROBERT W. FARVER and PENN
WASTE, INC.,
JURY TRIAL DEMANDED
Defendants
ANSWER OF LEMOYNE BOROUGH, DR. JAMES A. YATES, WAYNE S.
MOUNTZ, SUSAN J. WEST, SAMUEL R. LEACH, JODIE L- RUEDIGER,
JUDITH MCALLISTER, and ROBERT W, FARVER, TO PLAINTIFF'S
AMENDED PETITION FOR PRELIMINARY INJUNCTION
AND NOW, come Defendants Lemoyne Borough, Dr. James A. Yates, Wayne S.
Mountz, Susan J. West, Samuel R. Leach, Jodie L. Ruediger, Judith McAllister, and Robert W.
Farver (hereinafter said individuals collectively referred to as "Lemoyne Defendants"), by and
through its attorneys, Johnson, Duffle, Stewart & Weidner, PC, and file this answer to Plaintiffs
Amended Petition for Preliminary Injunction, and in support thereof, aver as follows:
1. Admitted, upon information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. Defendant, Samuel R. Leach, is an adult individual residing at 817
Walnut Street, Lemoyne, Pennsylvania 17043.
7. Admitted.
8. Admitted.
9. Denied. Defendant, Robert W. Farver, is an adult individual residing at 936 Ohio
Avenue, Lemoyne, Pennsylvania 17043.
10. Admitted, upon information and belief.
11. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further denial, it is specifically denied that the Borough has
violated the Pennsylvania Sunshine Act, 65 Pa.C.S.A. §701 et seq.
12. Denied. Said averment is denied as stated and strict proof thereof is demanded
at trial. It is admitted that Borough Council held an executive session on December 6, 2007 at
the beginning of its regularly-scheduled meeting. However, it is denied that said executive
session was illegal or held in violation of the Sunshine Act.
13. Denied. Said averment is denied as stated and strict proof thereof is demanded
at trial. The executive session held on December 6, 2007 was held for purposes permitted
under the Sunshine Act.
14. Denied. Said averment is denied as stated. At all times in question, Ms. Jodie
Ruediger, Borough Council member, served as Chair of the Borough Council's Sanitation
Committee. Ms. Ruediger announced during the public session of the Borough Council meeting
that the Sanitation Committee reviewed the bids for the solid waste contract, reviewed York
Waste Disposal's performance as the incumbent solid waste collector, and that the Committee
recommended that York Waste Disposal be disqualified as a non-responsible bidder. Upon a
motion by Ms. Ruediger, the Lemoyne Borough Council voted unanimously to disqualify York
Waste Disposal as a non-responsible bidder. Upon subsequent motion by Ms. Ruediger, the
Lemoyne Borough Council voted unanimously to award the solid waste contract to Penn Waste,
Inc., the next lowest bidder.
15. Denied. Said averment is denied as stated. Lemoyne Borough entered into a
three-year solid waste contract with Penn Waste, Inc. on or about December 7, 2007, which
solid waste contract has already commenced, effective January 1, 2008.
16. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further answer, it is denied that York Waste Disposal
prospectively will suffer immediate and irreparable harm. Any harm which York Waste Disposal
may have suffered (which harm is specifically denied), is reparable by way of monetary
damages.
17. Denied. Plaintiff failed to insert a date in said averment, making it impossible for
Answering Defendants to respond.
18. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further answer, it is averred that to the extent harm is suffered
by York Waste Disposal (which harm is specifically denied), such harm would be monetary in
nature only, and fully compensable by an award of monetary damages.
19. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further answer, it is averred that to the extent York Waste
Disposal suffers harm (which is specifically denied), such harm would be monetary in nature
only, and fully compensable by an award of monetary damages.
20. Denied. Said averment is denied in its entirety. Lemoyne Borough will suffer
appreciable injury if Plaintiffs petition is granted, because the Borough has already reached a
conclusion that York Waste Disposal is not a responsible bidder based upon its inability to
adequately serve the needs of the Borough. Furthermore, the Borough has already awarded
the solid waste contract to Penn Waste, Inc., which commenced performing said contract
January 1, 2008.
21. Denied. Said averment is denied as stated. Lemoyne Borough, after adequate
investigation, has determined that York Waste Disposal is not able to adequately serve the
needs of the Borough with respect to the solid waste contract. To the extent that York Waste
Disposal is ready and willing to continue to service Lemoyne Borough with refuse service, said
averment suggests a state of mind to which Answering Defendants are unable to form an
opinion, and said averment is therefore denied.
22. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further denial, at all times relevant hereto, Answering
Defendants acted appropriately and in compliance with the law with respect to investigating
whether York Waste Disposal was a responsible bidder and in awarding the contract to Penn
Waste, Inc.
23. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required.
WHEREFORE, Defendants Lemoyne Borough and the Lemoyne Defendants,
respectfully request that this Honorable Court deny Plaintiffs Amended Petition for Preliminary
Injunction.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By. L..... _..
Michael . Cassidy, Esq.
I. D. No. 82164
John R. Ninosky, Esq.
1. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, PA 17043
(717) 761-4540
Attorneys for Defendants Lemoyne
Borough, Yates, Mountz, West, Leach,
Ruediger, McAllister and Farver
DATE: ,Lis- Zo- 8
:320941
1605-493
VERIFICATION
1, HOWARD DOUGHERTY, LEMOYNE BOROUGH SECRETARY, hereby
acknowledge that Lemoyne Borough is a Defendant in this action and that 1 am authorized to
make this verification on its behalf; that I have read the foregoing Answer to Plaintiffs Amended
Petition for Preliminary Injunction; and that the facts stated therein are true and correct to the
best of my knowledge, information and belief.
I understand that any false statements herein are made subject to penalties of 18 Pa.
C. S. §4904, relating to unsworn falsification to aut4orities.
DATE: 1-15-08
CERTIFICATE OF SERVICE
AND NOW, this _L,`,?? day of January, 2008, the undersigned does hereby certify that
she did this date serve a copy of the foregoing document upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at
Lemoyne, Pennsylvania, addressed as follows:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
.17 East Market Street
York, PA 17401
Neil A. Slenker, Esquire
Stock and Leader
Susquehanna Commerce Center East
221 W. Philadelphia Street
Suite 600
York, PA 17401-2994
JOHNSON, DUFFIE, STEWART & WEIDNER
By: &-?. A (.
C67;-Zen S. Jense
(- 7751
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Johnson, Duffle, Stewart & Weidner
By: Michael J. Cassidy
I.D. No. 82164
John R. Ninosky
I. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
mjc@jdsw.com
KEITH A. SULTZBAUGH,
Plaintiff
V.
LEMOYNE BOROUGH,
Defendant
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNA.
: NO. 2007-7730
CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
ANSWER OF DEFENDANT, LEMOYNE BOROUGH, TO PLAINTIFF'S
AMENDED PETITION FOR SPECIAUPRELIMINARY INJUNCTION
AND NOW, this 15th day of January, 2008, comes Defendant, Lemoyne Borough, by and
through its undersigned counsel, Johnson, Duffie, Stewart and Weidner, P.C., and files its
Answer to the Amended Petition for Special/Preliminary Injunction filed by Keith A. Sultzbaugh,
and in support thereof avers as follows:
1. Admitted.
2. Admitted.
3. Admitted, upon information and belief.
4. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further denial, it is specifically denied that Lemoyne Borough
violated Pennsylvania competitive bidding law and, more specifically, Section 46402(a) of the
Pennsylvania Borough Code, 53 P.S. §45101 et seq. Lemoyne Borough complied with
Pennsylvania competitive bidding law when it awarded the solid waste contract to Penn Waste,
Inc., as the lowest responsible bidder.
5. Denied. Said averment is denied in its entirety. Lemoyne Borough Council
properly determined that York Waste Disposal was a non-responsible bidder, when the Borough
Council voted unanimously to disqualify York Waste Disposal. Lemoyne Borough Council
properly disqualified York Waste Disposal as a non-responsible bidder from bidding on the solid
waste contract, based upon its experience dealing with York Waste Disposal over the previous
three years, based on York Waste Disposal's failure to properly service Lemoyne Borough, and
based upon the Borough's investigation which revealed that York Waste Disposal had been
disqualified by other municipalities as a non-responsible bidder in recent years.
6. Denied. Said averment is denied as stated, in that it suggests that the solid
waste contract with Penn Waste, Inc. will commence at a future date. Lemoyne Borough's solid
waste contract with Penn Waste, Inc. commenced on January 1, 2008, prior to Plaintiffs
Amended Complaint having been filed and served.
7. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required.
8. Admitted in part. Denied in part. It is admitted that Plaintiff will be required to
pay a slightly higher rate for trash collection by virtue of the fact that Lemoyne Borough has
awarded the solid waste collection contract to Penn Waste, Inc. However, said averment is
denied in that it suggests that Lemoyne Borough has failed to operate within the law. Lemoyne
Borough, at all times, operated within the law, particularly with respect to awarding the contract
to Penn Waste, Inc.
9. Denied. Plaintiff failed to insert the relevant date into this averment, rendering it
impossible for Lemoyne Borough to respond. It is averred that Lemoyne Borough accepted
service of the Amended Complaint on January 4, 2008.
10. Denied. Plaintiff failed to insert the relevant date into this averment, rendering it
impossible for Lemoyne Borough to respond. It is averred that the Amended Complaint is time-
stamped as having been filed on January 4, 2008.
11. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required.
12. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required.
13. Denied. Said averment is denied as stated. Lemoyne Borough will suffer harm
if the Petition is granted because Lemoyne Borough has already awarded the contract to Penn
Waste, Inc., which began performing the contract on January 1, 2008. By way of further denial,
Lemoyne Borough has already reached a determination, after adequate investigation, that York
Waste Disposal is not capable of properly servicing the needs of Lemoyne Borough.
14. Denied. Said averment is denied in that Lemoyne Borough has already reached
a determination, after adequate investigation, that York Waste Disposal is not capable of
servicing the needs of Lemoyne Borough with respect to solid waste collection. Said
determination was based upon Lemoyne Borough's investigation and review of York Waste
Disposal's performance under the most recent solid waste collection contract and based upon
York Waste Disposal having been determined to be a non-responsible bidder by other
municipalities.
15. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required.
WHEREFORE, Defendant Lemoyne Borough requests this Honorable Court deny
Plaintiffs Amended Petition for Special/Preliminary Injunction.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
Michael J.J. C Esq.
I. D. No. 82164
John R. Ninosky, Esq.
I. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, PA 17043
(717) 761-4540
Attorneys for Defendant
DATE:
:320944
1605-493
A
VERIFICATION
I, HOWARD DOUGHERTY, LEMOYNE BOROUGH SECRETARY, hereby
acknowledge that Lemoyne Borough is a Defendant in this action and that I am authorized to
make this verification on its behalf; that I have read the foregoing Answer to Plaintiff's Amended
Petition for Special/Preliminary Injunction; and that the facts stated therein are true and correct
to the best of my knowledge, information and belief.
I understand that any false statements herein are made subject to penalties of 18 Pa.
C. S. §4904, relating to unsworn falsification to authorities.
DATE: 1-15-08
CERTIFICATE OF SERVICE
AND NOW, this ??ay of January, 2008, the undersigned does hereby certify that
she did this date serve a copy of the foregoing document upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at
Lemoyne, Pennsylvania, addressed as follows:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401
Neil A. Sienker, Esquire
Stock and Leader
Susquehanna Commerce Center East
221 W. Philadelphia Street
Suite 600
York, PA 17401-2994
JOHNSON, DUFFIE, STEWART & WEIDNER
By:L
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a NO.: 07-7729
YORK WASTE DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
ANSWER OF DEFENDANT PENN WASTE, INC., TO PLAINTIFF'S AMENDED
PETITION FOR PRELIMINARY INJUNCTION
This I I 'h day of January, 2008, comes Defendant Penn Waste, Inc., ("Penn
Waste") by and through its attorneys, the law firm of Stock and Leader, to answer
Plaintiff's Amended Petition for Preliminary Injunction as set forth below.
1. Admitted upon information and belief.
2. Admitted upon information and belief.
3 - 9. Denied. Defendant lacks sufficient information to form an opinion as to
the truth or veracity of these averments, and they are therefore denied. Strict proof
thereof is hereby demanded.
10. Admitted with the notation that Penn Waste's zip code is 17345.
11. Denied. This averment is denied as a conclusion of law. To the extent
further response is deemed necessary, after reasonable investigation, Defendant lacks
sufficient information to form an opinion as to the truth or veracity of these averments,
and they are therefore denied. Strict proof thereof is hereby demanded.
12. Denied. This averment is denied as a conclusion of law. To the extent
further response is deemed necessary, after reasonable investigation, Defendant lacks
sufficient information to form an opinion as to the truth or veracity of these averments,
and they are therefore denied. Strict proof thereof is hereby demanded.
13. Denied. This averment is denied as a conclusion of law. To the extent
further response is deemed necessary, after reasonable investigation, Defendant lacks
sufficient information to form an opinion as to the truth or veracity of these averments,
and they are therefore denied. Strict proof thereof is hereby demanded.
14. Denied. At the public meeting on December 6, 2007, at the appropriate
point on the agenda, a representative of the Sanitation Committee announced the
Committee's recommendation that York Waste Disposal be found to be a non-
responsible bidder, and that the 2008 refuse service contract be awarded to Penn Waste as
the lowest responsible bidder. The Borough Council then took formal action passing
resolutions consistent with the Committee's recommendation.
15. Admitted. By way of further answer, it is averred that the 2008 refuse
contract between Lemoyne Borough and Penn Waste took effect on January 1, 2008, and
that since that time, Penn Waste has been serving as the municipal refuse contractor in
the Borough.
2
16. Denied. This averment is denied as a conclusion of law. To the extent
harm is suffered by York Waste (which is denied) it would be monetary in nature only,
and fully compensable by an award of monetary damages. By way of further answer, it is
averred that the 2008 refuse service contract, with Penn Waste as the refuse hauler, is
already in effect.
17. Denied. Plaintiff failed to insert the relevant date into this averment,
rendering it impossible for Penn Waste to respond. It is averred that the Amended Action
for Declaratory Judgment is time stamped as having been filed on January 4, 2008. The
Amended Action for Declaratory Judgment was not served on Penn Waste until January
8, 2008.
18. Denied. This averment is denied as a conclusion of law. By way of
further answer, it is averred that to the extent harm is suffered by York Waste (which is
denied) it would be monetary in nature only, and fully compensable by an award of
monetary damages.
19. Denied. This averment is denied as a conclusion of law. By way of
further answer, it is averred that to the extent harm is suffered by York Waste (which is
denied) it would be monetary in nature only, and fully compensable by an award of
monetary damages.
20. Denied. Plaintiff delayed in filing its Amended Action for Declaratory
Judgment and Amended Petition until after the 2008 refuse service contract had been
executed, the performance bond posted, and Penn Waste had begun to service the
residents of Lemoyne Borough. Penn Waste, not York Waste Disposal, is currently the
municipal waste hauler in Lemoyne Borough and is providing the services required by
3
the refuse service contract. Accordingly, a preliminary injunction of the sort requested
by Plaintiff will not preserve the status quo, and will in fact cause substantial harm to
Penn Waste, which has invested the time, materials, and resources required to perform as
mandated by the 2008 refuse service contract, and harm to the residents of Lemoyne
Borough who would have to endure yet another change in haulers.
21. Denied. This averment is denied to the extent it suggests that York Waste
Disposal is the current refuse collector in Lemoyne Borough. To the extent this averment
references the intent or ability of York Waste Disposal to replace Penn Waste as the
refuse collector in the Borough at the rates in place in the prior contract, Penn Waste
lacks sufficient knowledge to form an opinion as to the truth or veracity of this averment,
and it is therefore denied. Strict proof thereof is hereby demanded.
22. Denied. This averment is denied as a conclusion of law.
23. Denied. This averment is denied as a conclusion of law.
WHEREFORE, Defendant Penn Waste respectfully requests that this honorable
Court deny Plaintiff's Amended Petition for Preliminary Injunction.
NEW MATTER
24. A petition for the issuance of a preliminary injunction may be granted only
where the moving party demonstrates:
a) that relief is necessary to prevent immediate and irreparable harm
which cannot be compensated in damages;
4
b) that greater injury will occur from refusing the injunction than
from granting it;
C) that the injunction will restore the parties to the status quo as it
existed immediately before the alleged wrongful conduct;
d) that the alleged wrong is manifest, and the injunction is reasonably
suited to abate it; and
e) that the plaintiff's right to relief is clear. Kierski v. Township of
Robinson, 810 A.2d 196,198 (Pa. Cmwlth. 2002).
25. After being awarded the 2008 refuse service contract, Penn Waste
purchased refuse containers for the use of Borough residents, undertook an educational
campaign to educate and inform Borough residents of the manner in which refuse
collection would be handled under the new contract, trained drivers on the new collection
routes implemented in the Borough, ordered two new collection trucks, and purchased a
performance bond.
26. Plaintiff delayed in filing its Amended Petition For Preliminary Injunction
and Amended Action for Declaratory Judgment until after: a) Lemoyne Borough and
Penn Waste entered into the 2008 refuse service contract; b) Penn Waste posted a
performance bond with the Borough; c) the contract took effect on January 1, 2008; d)
Penn Waste had invested the time, materials, and employee resources required to perform
under the contract; and e) Penn Waste had begun fulfilling its role as municipal refuse
collector by collecting trash throughout the Borough on the designated collection days.
27. Penn Waste is currently serving as the municipal refuse collector for the
Borough of Lemoyne.
28. Following the award of the contract to Penn Waste on December 6, 2007,
Plaintiff had ample time to seek preliminary relief before the 2008 refuse service contract
took effect. Plaintiff nonetheless failed to take any action until December 26, 2007 when
it first filed its defective Action for Declaratory Judgment and Petition for Preliminary
Injunction. After the Court promptly notified Plaintiff on December 27, 2007 of the
defects in its pleadings, Plaintiff again failed to take any action seeking preliminary relief
until the Amended Action for Declaratory Judgment and Amended Petition were filed on
January 4, 2008, which, as discussed above, was after the 2008 refuse service contract
was in effect and Penn Waste was servicing Borough residents.
29. Plaintiff has failed to state a claim for preliminary injunctive relief.
Moreover, even if all allegations in Plaintiff's Amended Petition are deemed to be true
(which is denied), Plaintiff has failed to allege facts demonstrating the imminent threat of
irreparable harm. Since Penn Waste is currently serving as the municipal refuse collector
for the Borough of Lemoyne, there is no imminent threat of harm to be remedied by
preliminary relief. The relief demanded by Plaintiff would not preserve the status quo.
Furthermore, the mere passage of time does not in itself cause Plaintiff to suffer any
greater harm than that which it alleges to have already suffered. The claims espoused by
Plaintiff in its Amended Action for Declaratory Judgment can therefore be fully
adjudicated in the normal course of a civil action.
30. The only harm Plaintiff has allegedly suffered is monetary in nature (the
revenues it would have received had it been awarded the contract) and therefore is not a
proper basis for preliminary injunctive relief.
6
31. The "wrong" alleged by Plaintiff, namely the purported failure to
adequately disclose the purpose of the alleged executive session, is not manifest.
Plaintiff concedes that the Borough Council announced that an executive session had
occurred. Thus the occurrence of the executive session was not in any way concealed.
Plaintiff only speculates as to what might or might not have occurred at the executive
session. The rejection of York Waste Disposal as a responsible bidder and the award of
the contract to Penn Waste occurred at a public meeting following the passage of formal
resolutions. Should this Court conclude that the general nature of the executive session
should have been disclosed, the issuance of an injunction, which would harm both Penn
Waste and the residents of Lemoyne Borough, is a remedy that is disproportionate to the
nature of the conduct at issue.
WHEREFORE, Defendant Penn Waste respectfully requests that this honorable
Court deny Plaintiff's Amended Motion for Preliminary Injunction.
Respectfully submitted,
STOCK AND LEADIEI
By:
Neil A. STenker, Esquire
Supreme Court I.D. #: 77974
Andrew C. Spears, Esquire
Supreme Court I.D.#: 87737
Attorney for Defendant, Penn Waste, Inc.
Susquehanna Commerce Center - East
221 West Philadelphia Street, Suite 600
York, PA 17401-2994
Phone: 717-846-9800
Fax: 717-843-6134
7
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a
YORK WASTE DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
VERIFICATION
NO.: 07-7729
I hereby affirm that the following facts are correct: I am authorized agent of Penn Waste, Inc. in
the foregoing action. The attached Answer of Defendant, Penn Waste, Inc., to Plaintiff's Amended
Petition for Preliminary Injunction is based upon information which has been furnished to counsel and
information which has been gathered by counsel in the preparation of this document. The language of the
Answer of Defendant, Penn Waste, Inc., to Plaintiff's Amended Petition for Preliminary Injunction is that
of counsel and not mine. I have read the Answer of Defendant, Penn Waste, Inc:, to Plaintiff s Amended
Petition for Preliminary Injunction and to the extent that the same is based upon information which I have
given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent
that the content of the Answer of Defendant, Penn Waste, Inc., to Plaintiff's Amended Petition for
Preliminary Injunction is that of counsel, I have relied upon counsel in making this Verification. I hereby
acknowledge that the averments of fact set forth in the aforesaid Answer of Defendant, Penn Waste, Inc.,
to Plaintiff's Amended Petition for Preliminary Injunction are made subject to the penalties of 18 Pa. C.S.
4904 relating to unsworn falsification to authorities.
PENN W TE, INC.
By:
Scott R. Wagner
Date: Title: President
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a NO.: 07-7729
YORK WASTE DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
CERTIFICATE OF SERVICE
AND NOW, this 11th day of Januaa _, 2008, I, Mary K. Ridings,
Paralegal for Neil A. Slenker, Esquire, of the law firm of Stock and Leader, attorneys for
Defendant, Penn Waste, Inc., hereby certify that I served the within Answer Of Defendant, Penn
Waste, Inc., To Plaintiffs Amended Petition For Preliminary Injunction this day by depositing
the same in the United States mail, postage prepaid, in York, Pennsylvania, addressed to:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401-1205
1-11-09
Date
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
PO Box 309
Lemoyne, PA 17043-0109
STOCK
By:
Mary di gsea as gal for
Neil A. len r, squire
Supreme Court I.D. #77974
Susquehanna Commerce Center East
Suite 600
221 West Philadelphia Street
York, PA 17401-2994
Telephone: (717) 846-9800
Fax: (717) 843-6134
U.WSIPENN WASTEILemoyne BoroughWnswer to Petition - Sunshine Law (York Waste, 07-7729).doc
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REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC, d/b/a
YORK DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES
A. YATES, WAYNE S. MOUNTZ,
SUSAN J. WEST, SAMUEL R.
LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT
W. FARVER and PENN WASTE,
INC,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2007-7729 CIVIL
Defendants DECLARATORY JUDGMENT ACTION
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
KEITH A. SULTZBAUGH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEMOYNE BOROUGH and
PENN WASTE, INC.,
Defendants
NO. 2007-7730 CIVIL
CIVIL ACTION - IN EQUITY
ORDER OF COURT
AND NOW, this 15th day of January, 2008, after
hearing, there does not appear to have been a violation of the
Sunshine Act, nor an abuse of discretion on the part of the
Borough's Sanitation Committee or Borough Council. Since we are
satisfied that the Plaintiffs' right to relief is far from
clear, the request for a preliminary-i-ajunction is DENIED.
By the Court,
Edward E. Guido, J.
Charles A. Rausch, Esquire
Nicole M. Ehrhart, Esquire
Carolyn J. Pugh, Esquire
Joseph R. Ninosky, Esquire
Michael J. Cassidy, Esquire
Copts rn*.cLL
Neil A. Slenker, Esquire
srs
t7 : f i'3
8f ?fa??,?/I?0]
u,
Johnson, Duffle, Stewart & Weidner
By: Michael J. Cassidy
I.D. No. 82164
John R. Ninosky
I. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
mjc@jdsw.com
Attorneys for Defendants Lemoyne
Borough, Yates, Mountz, West,
Leach, Ruediger, McAllister and
Farver
REPUBLIC SERVICES GROUP OF IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, LLC d/b/a YORK CUMBERLAND COUNTY, PENNA.
DISPOSAL,
NO. 2007-7729
Plaintiff
DECLARATORY JUDGMENT ACTION
V.
LEMOYNE BOROUGH, DR. JAMES A.
YATES, WAYNE S. MOUNTZ, SUSAN
J. WEST, SAMUEL R. LEACH, JODIE
L. RUEDIGER, JUDITH MCALLISTER,
ROBERT W. FARVER and PENN
WASTE, INC.,
Defendants
JURY TRIAL DEMANDED
ANSWER OF DEFENDANTS LEMOYNE BOROUGH. Dr. JAMES A.
YATES, WAYNE S. MOUNTZ. SUSAN J. WEST. SAMUEL R. LEACH,
JODIE L. RUEDIGER, JUDITH McALLISTER and ROBERT W. FARVER.
TO PLAINTIFF'S AMENDED ACTION FOR DECLARATORY JUDGMENT
AND NOW, come Defendants Lemoyne Borough, Dr. James A. Yates, Wayne S.
Mountz, Susan J. West, Samuel R. Leach, Jodie L. Ruediger, Judith McAllister and Robert W.
Farver (hereinafter said individuals collectively referred to as "Lemoyne Defendants"), by and
through their attorneys, Johnson, Duffie, Stewart & Weidner, P.C., and file this Answer to
Plaintiffs Amended Action For Declaratory Judgment, and in support thereof, aver as follows:
1. Admitted, upon information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. Defendant, Samuel R. Leach, is an adult individual residing at 817
Walnut Street, Lemoyne, Pennsylvania 17043.
7. Admitted.
8. Admitted.
9. Denied. Defendant, Robert W. Farver, is an adult individual residing at 936 Ohio
Avenue, Lemoyne, Pennsylvania 17043.
10. Admitted, upon information and belief.
11. Admitted in part. Denied in part. It is admitted that Lemoyne Borough and
York Waste entered into a contract for the collection, transportation, and disposal of solid waste
within the Borough of Lemoyne for the period January 1, 2005 through December 31, 2007
(said contract hereinafter referred to as "2005 Solid Waste Contract"). However, said averment
is denied to the extent that it characterizes or limits York Waste's obligations under the 2005
Solid Waste Contract, which, being a writing, speaks for itself.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted.
18. Admitted.
19. Denied. Said averment is denied in its entirety. At the beginning of the
December 6, 2007 meeting of the Lemoyne Borough Council, Borough Council President,
James A. Yates, announced that the Borough Council would be adjourning briefly to meet in
executive session to discuss potential litigation. Upon the Borough Council's return to council
chambers after having met in executive session, Borough Council President, James A. Yates,
thanked members of the public for their patience while the Borough Council met in executive
session and commenced with the public portion of the Borough Council meeting at 7:40 p.m.
20. Denied. Said averment is denied in its entirety. At the beginning of the
December 6, 2007 meeting of the Lemoyne Borough Council, Borough Council President,
James A. Yates, announced that the Borough Council would be adjourning briefly to meet in
executive session to discuss potential litigation. Upon the Borough Council's return to council
chambers after having met in executive session, Borough Council President, James A. Yates,
thanked members of the public for their patience while the Borough Council met in executive
session and commenced with the public portion of the Borough Council meeting at 7:40 p.m.
21. Denied. Said averment is denied in its entirety. To the extent said averment is
paraphrasing requirements set forth in the Sunshine Act regarding the procedure for holding an
executive session, the averment is denied in that the Sunshine Act, 65 Pa.C.S.A. §701 et seq.
speaks for itself. By way of further denial, it is specifically denied that the Borough Council did
not state the reason for holding the executive session. Borough Council President, James A.
Yates, announced the reason for the executive session at the public meeting immediately prior
to adjourning into executive session.
22. Denied. . Said averment states a conclusion of law, to which no responsive
pleading is required.
23. Denied. Said averment is denied in its entirety. At the beginning of its regular
meeting on December 6, 2007 at 7:30 p.m., Borough Council President, James A. Yates,
announced that the Borough Council was temporarily adjourning to meet in executive session
for the purpose of discussing potential litigation. After meeting in executive session, the
Borough Council returned to the council chambers and proceeded with the public portion of its
regular business meeting.
24. Denied. Said averment is denied as stated. During the regular business
meeting of the Lemoyne Borough Council on December 6, 2007, Borough Council member
Jodie Ruediger, Chair of the Borough Council Sanitation Committee, announced that the
Sanitation Committee had reviewed the bids and York Waste's performance under the 2005
Solid Waste Contract and was recommending that York Waste be disqualified as a non-
responsible bidder. Upon motion by Ms. Ruediger to disqualify York Waste as a non-
responsible bidder, and said motion having been seconded, the Borough Council voted
unanimously to disqualify York Waste as a non-responsible bidder. York Waste having been
disqualified as a non-responsible bidder, Ms. Ruediger made a motion to award the 2008 Solid
Waste Contract to Penn Waste as the lowest responsible bidder. Said motion having been
seconded, the Lemoyne Borough Council voted unanimously to award the 2008 Solid Waste
Contract to Penn Waste as the lowest responsible bidder.
25. Admitted in part. Denied in part. It is admitted that a representative from York
Waste asked the Borough Council how it had reached its decision that York Waste was a non-
responsible bidder. However, the balance of said averment is denied. At the public meeting on
December 6, 2007, the Lemoyne Borough Solicitor explained to the York Waste representative
that the Borough Council reached its decision that York Waste was a non-responsible bidder
based upon the recommendation made by the Borough Council Sanitation Committee which
had reviewed York Waste's performance under the 2005 Solid Waste Contract, complaints
received by residents over the three-year term of the 2005 Solid Waste Contract, and the fact
that York Waste had been determined to be a non-responsible bidder by other municipalities.
26. Admitted.
27. Denied. Said averment is denied as stated. Borough Council unanimously
approved the motion to disqualify York Waste as a non-responsible bidder, based upon
recommendation made by the Sanitation Committee which had reviewed York Waste's
performance under the 2005 Solid Waste Contract during a public meeting of the Sanitation
Committee on November 19, 2007. The Borough Council provided an opportunity to members
of the public to comment on matters of concern, including the award of the 2008 Solid Waste
Contract, at the beginning of the December 6, 2007 Borough Council meeting, prior to the
Borough Council awarding the 2008 Solid Waste Contract.
28. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further denial, the executive session held by the Borough
Council on December 6, 2007 was for a proper purpose permitted under the Sunshine Act, 65
Pa.C.S.A. §701 et seq.
29. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. By way of further denial, the executive session held on December 6, 2007
was held for the purpose of discussing potential litigation, as announced by Borough Council
President, James A. Yates, prior to going into executive session.
30. Denied. Said averment is denied as a conclusion of law to which no responsive
pleading is required. All official action taken by Borough Council at the December 6, 2007
meeting was taken in accordance with the Sunshine Act, 65 Pa.C.S.A. §707 et seq.
31. Denied. Said averment is denied in its entirety. The Borough Council
determined that York Waste lacks the ability to properly service the needs of Lemoyne Borough
with respect to the collection, transportation, and disposal of solid waste, based upon York
Waste's performance under the 2005 Solid Waste Contract. As to York Waste's averment that
it is ready and willing to continue servicing Lemoyne Borough, Answering Defendants are
unable to form an opinion as to the veracity of said averment, which is therefore denied.
WHEREFORE, Defendant Lemoyne Borough and the Lemoyne Defendants respectfully
request this Honorable Court enter judgment in their favor and deny Plaintiff's request for a
declaratory judgment.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By: L--- ?
Michael J. assidy, Esq.
I. D. No. 82164
John R. Ninosky, Esq.
I. D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, PA 17043
(717) 761-4540
Attorneys for Defendants Lemoyne
Borough, Yates, Mountz, West, Leach,
Ruediger, McAllister and Farver
DATE: L' °8
:321429
1605-493
VERIFICATION
I, HOWARD E. DOUGHERTY, Lemoyne Borough Secretary, hereby acknowledges that
Lemoyne Borough is a Defendant in this action and that I am authorized to make this verification
on its behalf; that I have read the foregoing Answer to Plaintiff's Amended Action for Declaratory
Judgment; and that the facts stated therein are true and correct to the best of my knowledge,
information and belief.
I understand that any false statements herein are made subject to penalties of 18 Pa.
C. S. §4904, relating to unsworn falsification to authorities.
L
B
DATE: -V-?- 108
CERTIFICATE OF SERVICE
AND NOW, this ,<I day of January, 2008, the undersigned does hereby certify that
she did this date serve a copy of the foregoing document upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at
Lemoyne, Pennsylvania, addressed as follows:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401
Neil A. Slenker, Esquire
Stock and Leader
Susquehanna Commerce Center East
221 W. Philadelphia Street
Suite 600
York, PA 17401-2994
JOHNSON, DUFFIE, STEWART & WEIDNER
i
By:
C teen S. Jense
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a NO.: 07-7729
YORK WASTE DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
NOTICE TO PLEAD
TO: Plaintiff, Republic Services Group of Pennsylvania, LLC
d/b/a York Waste Disposal
c/o Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401-1205
YOU ARE HEREBY notified to file a written response to the enclosed New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
STOCK AND LEAD
By:
eil A. enker, Esquire
Supreme Court I.D. #: 77974
Andrew C. Spears, Esquire
Supreme Court I.D.#: 87737
Attorney for Defendant, Penn Waste, Inc.
Susquehanna Commerce Center - East
221 West Philadelphia Street, Suite 600
York, PA 17401-2994
Phone: 717-846-9800
Fax: 717-843-6134
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a NO.: 07-7729
YORK WASTE DISPOSAL, :
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
ANSWER AND NEW MATTER OF
DEFENDANT PENN WASTE, INC., TO PLAINTIFF'S AMENDED
ACTION FOR DECLARATORY JUDGMENT
This day of January, 2008, comes Defendant Penn Waste, Inc., ("Penn
Waste") by and through its attorneys, the law firm of Stock and Leader, to answer
Plaintiff's Amended Action for Declaratory Judgment as set forth below.
1. Admitted upon information and belief.
2. Admitted upon information and belief.
1-9. Defendant, Penn Waste, Inc. (hereinafter "Penn Waste") lacks sufficient
information to form an opinion as to the truth or veracity of these averments, and they are
therefore denied. Strict proof thereof is hereby demanded. To the extent that Penn Waste
is required to answer, any and all allegations or insinuations of wrongdoing on the part of
Penn Waste are specifically denied.
2
10. Admitted with clarification. Penn Waste's principal place of business is
located at 85 Brickyard Road, Manchester, York County, Pennsylvania 17345.
11. Admitted.
12. Admitted.
13. Admitted in part, denied in part. Admitted that York Waste submitted a
bid proposal to the Borough. Penn Waste lacks sufficient information to form an opinion
as to the truth or veracity of the remaining averments in paragraph 13, and they are
therefore denied. Strict proof therefore is hereby demanded.
14. Admitted in part, denied in part. It is admitted that the bids were opened
at the October 4, 2007 Borough Council meeting. The remainder of this averment is
denied as a conclusion of law.
15. After reasonable investigation, Penn Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it is therefore denied.
Strict proof thereof is hereby demanded.
16. After reasonable investigation, Penn Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it is therefore denied.
Strict proof thereof is hereby demanded.
17. Admitted.
18. Admitted in part, denied in part. It is admitted that the Agenda did not
indicate that an executive session was to be held that night. It is specifically denied that
there is any legal requirement that an executive session must be listed on the agenda.
Moreover, it is averred, upon information and belief, that at the December 6, 2007, the
3
Borough Council properly called the meeting to order and then properly announced that
they would be adjourning for an executive session to discuss potential litigation.
19. Denied. It is averred, upon information and belief, that at the December 6,
2007 meeting, the Borough Council properly called the meeting to order and then
properly announced that they would be adjourning for an executive session to discuss
potential litigation. As to whether or not the Borough Council President made any
further references to the executive session, Penn Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it is therefore denied.
Strict proof thereof is hereby demanded.
20. Denied. It is averred, upon information and belief, that at the December 6,
2007 meeting, the Borough Council properly called the meeting to order, and then
properly announced that they would be adjourning for an executive session to discuss
potential litigation.
21. Denied. This averment is denied as a conclusion of law. By way of
further answer, Penn Waste incorporates by reference its response to Paragraph 20 and
notes that the Pennsylvania Sunshine Act, 65 Pa. C.S.A. § 701, et seq., speaks for itself.
22. Denied. This averment is denied as a conclusion of law.
23. Denied. This averment is denied as a conclusion of law. By way of
further answer, it is denied that Lemoyne Borough (the "Borough") violated the Sunshine
Act or held an illegal executive session.
24. Admitted in part, denied in part. Admitted that at the appropriate point of
the agenda at the December 6, 2007 Borough Council meeting, the Borough Council, at
the recommendation of the Sanitation Committee, passed a motion declaring York Waste
4
to be a non-responsible bidder, followed by a second motion awarding the municipal
refuse and recycling contract to Penn Waste. It is denied that the aforesaid motions were
passed without the Borough taking the procedural steps required by law. By way of
further answer, it is averred that the Borough performed a full, fair, honest, and legally
sufficient investigation as to the responsibility of York Waste.
25. Denied. After reasonable investigation, Penn Waste lacks sufficient
knowledge to form an opinion as to the truth or veracity of this averment, and it is
therefore denied. Strict proof thereof is hereby demanded.
26. Denied. After reasonable investigation, Penn Waste lacks sufficient
knowledge to form an opinion as to the truth or veracity of this averment, and it is
therefore denied. Strict proof thereof is hereby demanded.
27. Admitted in part, denied in part. Admitted that at the appropriate point of
the agenda at the December 6, 2007 Borough Council meeting, the Borough Council
passed a motion declaring York Waste to be a non-responsible bidder, followed by a
second motion awarding the municipal refuse and recycling contract to Penn Waste. It is
denied that the aforesaid motions were passed without the Borough taking the procedural
steps required by law.
28. Denied. This averment is denied as a conclusion of law. By way of
further response, the Pennsylvania Sunshine Act, 65 Pa. C.S.A. § 708, speaks for itself.
29. Denied. This averment is denied as a conclusion of law. To the extent
this averment alleges the substance of the discussion in the executive session, Penn Waste
lacks sufficient knowledge to form an opinion as to the truth or veracity of this averment,
and it is therefore denied. Strict proof thereof is hereby demanded.
5
30. Denied. This averment is denied as a conclusion of law.
31. Denied. This averment is denied to the extent it suggests that York Waste
Disposal is the current refuse collector in Lemoyne Borough. To the extent this averment
references the intent or ability of York Waste Disposal to replace Penn Waste as the
refuse collector in the Borough at the rates in place under the prior contract, Penn Waste
lacks sufficient knowledge to form an opinion as to the truth or veracity of this averment,
and it is therefore denied. Strict proof thereof is hereby demanded.
WHEREFORE, Defendant Penn Waste, Inc., demands that judgment be entered
in its favor and that the relief requested by the Plaintiff be denied.
NEW MATTER
32. All prior paragraphs above are incorporated herein as if fully set forth.
33. After being awarded the 2008 refuse service contract, and prior to the
contract taking effect on January 1, 2008, Penn Waste purchased refuse containers for the
use of the Borough, undertook an educational campaign to educate and inform Borough
residents of the manner in which refuse collection would be handled under the new
contract, trained drivers on the new collection routes implemented in the Borough,
purchased a new collection truck for use in the Borough, and purchased a performance
bond.
34. York Waste delayed in filing its Amended Complaint until after: a)
Lemoyne Borough and Penn Waste entered into the 2008 refuse service contract on
December 7, 2007; b) Penn Waste posted a performance bond with the Borough; c) the
contract took effect on January 1, 2008; d) Penn Waste had invested the time, funds,
6
materials, and employee resources required to perform under the contract; and e) Penn
Waste had begun fulfilling its role as municipal refuse collector by collecting trash and
recycling throughout the Borough on the designated collection days.
35. Penn Waste is currently serving as the municipal refuse collector for the
Borough of Lemoyne.
36. Following the award of the contract to Penn Waste on December 6, 2007,
York Waste had ample time to file the within action against Penn Waste before the 2008
refuse service contract took effect and before Penn Waste invested its time, funds,
materials and employee resources.
37. York Waste's claims are barred by the doctrine of laches.
38. York Waste's action is frivolous and brought with no substantial
justification.
39. Accordingly, pursuant to Section 714.1 of the Sunshine Act, York Waste
is responsible for paying Penn Waste's attorney fees and costs of litigation. 65 Pa.
C.S.A. § 714.1.
WHEREFORE, Defendant Penn Waste, Inc. respectfully requests that this
honorable Court enter judgment in Penn Waste's favor on Plaintiff's Amended Action for
7
Declaratory Judgment, deny the relief requested by Plaintiff and award Penn Waste
reasonable attorney fees and costs of litigation.
Respectfully submitted,
STOCK AND LEADER
By:
eil A. enker, Esquire
Supreme Court I.D. #: 77974
Andrew C. Spears, Esquire
Supreme Court I.D.#: 87737
Attorney for Defendant, Penn Waste, Inc.
Susquehanna Commerce Center - East
221 West Philadelphia Street, Suite 600
York, PA 17401-2994
Phone: 717-846-9800
Fax: 717-843-6134
VERIFICATION
I hereby affirm that the following facts are correct: I am authorized agent of Penn
Waste, Inc. in the foregoing action. The attached Answer of Defendant, Penn Waste,
Inc., to Plaintiff's Amended Action for Declaratory Judgment is based upon information
which has been furnished to counsel and information which has been gathered by counsel
in the preparation of this document. The language of the Answer of Defendant, Penn
Waste, Inc., to Plaintiff's Amended Action for Declaratory Judgment is that of counsel
and not mine. I have read the Answer of Defendant, Penn Waste, Inc., to Plaintiff's
Amended Action for Declaratory Judgment and to the extent that the same is based upon
information which I have given to counsel, it is true and correct to the best of my
knowledge, information and belief. To the extent that the content of the Answer of
Defendant, Penn Waste, Inc., to Plaintiff's Amended Action for Declaratory Judgment is
that of counsel, I have relied upon counsel in making this Verification. I hereby
acknowledge that the averments of fact set forth in the aforesaid Answer of Defendant,
Penn Waste, Inc., to Plaintiff's Amended Action for Declaratory Judgment are made
subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities.
PENN W , INC.
By:
Scott R. Wagner
Date: 1- 6-0 Title: President
9
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA, LLC d/b/a NO.: 07-7729
YORK WASTE DISPOSAL,
Plaintiff
V.
LEMOYNE BOROUGH, DR. JAMES A. YATES,
WAYNE S. MOUNTZ, SUSAN J. WEST,
SAMUEL R. LEACH, JODIE L. RUEDIGER,
JUDITH McALLISTER, ROBERT W. FARVER,
and PENN WASTE, INC.,
Defendants
CERTIFICATE OF SERVICE
AND NOW, this w day of JaiWIM , 2008, I, Mary K. Ridings,
Paralegal for Neil A. Slenker, Esquire, of the law firm Stock and Leader, attorneys for
Defendant, Penn Waste, Inc., hereby certify that I served the within Answer Of Defendant, Penn
Waste, Inc., To Plaintiffs Amended Action for Declaratory Judgment this day by depositing
the same in the United States mail, postage prepaid, in York, Pennsylvania, addressed to:
Charles A. Rausch, Esquire
Blakey, Yost, Bupp & Rausch, LLP
17 East Market Street
York, PA 17401-1205
Date
-Z?-as
Michael J. Cassidy, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
PO Box 309
Lemoyne, PA 17043-0109
STOCK,ANp LEADER
By:
Mary K. Rfdirigs, Pa alegay Or
Neil A. Sl nke , Esq ire
Supreme I.D. 77974
Susquehanna Commerce Center East
Suite 600
221 West Philadelphia Street
York, PA 17401-2994
Telephone: (717) 846-9800
Fax: (717) 843-6134
U.•INSIPENN WASTEILemoyne BoroughUnswer to Complaint - Sunshine Act.doc
10
v -
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
NO. 07-7729
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
REPLY TO NEW MATTER OF DEFENDANT PENN WASTE, INC.
AND NOW comes Plaintiff, Republic Services Group of Pennsylvania, LLC d/b/a York
Waste Disposal ("York Waste"), by and through its attorneys, Blakey, Yost, Bupp & Rausch,
LLP and files this Reply to New Matter of Defendant Penn Waste, Inc., and in support thereof,
avers and states as follows:
32. Denied. The allegation is a conclusion of law to which no reply is required. The
allegations of the Complaint are incorporated herein by reference thereto.
33. Denied. After reasonable investigation, York Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it therefore denied. Strict proof
thereof is hereby demanded.
34. Denied. York Waste timely filed its Action for Declaratory Judgment. By way of
further answer, an Action for Declaratory Judgment for violation of the Sunshine Act shall be
filed within 30 days from the date of a meeting. 65 Pa. C.S.A. § 713. York Waste filed its
Action for Declaratory Judgment on December 26, 2007 which was within the required 30 days
from the December 6, 2007 Lemoyne Borough Meeting.
a) Denied. After reasonable investigation, York Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it therefore denied. Strict proof
thereof is hereby demanded.
b) Denied. After reasonable investigation, York Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it therefore denied. Strict proof
thereof is hereby demanded.
C) Admitted on information and belief.
d) Denied. After reasonable investigation, York Waste lacks sufficient knowledge to
form an opinion as to the truth or veracity of this averment, and it therefore denied. Strict proof
thereof is hereby demanded. To this extent that this averment contains factual allegations,
Lemoyne Borough did not take the procedural steps required by law and Lemoyne Borough did
not perform a full, fair, honest, and legally sufficient investigation as to the responsibility of
York Waste.
e) Admitted on information and belief.
35. Admitted on information and belief.
36. Denied. York Waste timely filed its Action for Declaratory Judgment. See
Paragraph No. 34 above.
37. Denied. The allegation is a conclusion of law to which no answer is required.
38. Denied. The allegation is a conclusion of law to which no answer is required.
39. Denied. The allegation is a conclusion of law to which no answer is required.
WHEREFORE, Plaintiffs, York Waste, request this Honorable Court to enter the
judgment in its favor and against the Defendants on all counts of York Waste's Action for
Declaratory Judgment.
Respectfully,
BLAKEY, YOST, BUPP & BAUSCH, LLP
A (Z' (
Dated: B - G
Rausch, Esquire
Supreme Ct. ID No. 36814
Nicole M. Ehrhart, Esquire
Supreme Ct. ID No. 200538
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
VERIFICATION
1, the Plaintiff' in the within action, have read the foregoing Reply to New Matter and
hereby affirm that it is true and correct to the best of my personal knowledge, information and
belief. The language of the foregoing document is that of my attorney and not my own, but it is
based on information which I have given to my attorney. This verification and statement is made
pursuant to 18 Pa. C.S. §4904 relating to unworn falsification to authorities.
REPUBLIC
SERVICES OF
PENNSYLVANIA, LLC,
d/b/a YORK WASTE DISPOSAL
/r..' 'a BY:
Date Mark A. Pergolese, Gen Manager
C . ' a
CERTIFICATE OF SERVICE
I hereby certify that I am this day causing a copy of the Reply to New Matter of
Defendant Penn Waste, Inc., to be served on the following persons by First Class United States
Mail:
Michael J. Cassidy, Esquire
Joseph R. Ninosky, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
Lemoyne, PA 17043-0109
Neil A. Slenker, Esquire
Stock and Leader
221 East Philadelphia Street, E600
York, PA 17401
Dated:,'
Charles A. Rausch, Esquire
Carolyn J. Pugh, Esquire
Supreme Ct. ID No. 200972
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Plaintiff
Respectfully submitted,
BL , YOST BUPP & SCH, LLP
B Supreme Ct. ID No. 36814
c-"
?1
KEITH A. SULTZBAUGH
Plaintiff,
V.
LEMOYNE BOROUGH and PENN WASTE, INC. :
Defendants,
REPUBLIC SERVICES GROUP OF :
PENNSYLVANIA LLC d/b/a YORK WASTE
DISPOSAL
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CASE NO. 07-7730 CIVIL
Plaintiff
V. CASE NO. 07-7729 CIVIL
LEMOYNE BOROUGH
DR. JAMES A. YATES ;
WAYNE S. MOUNTZ
SUSAN J. WEST
SAMUEL R. LEACH
JODIE L. RUEDIGER
JUDITH McALLISTER
ROBERT W. FARVER
PENN WASTE, INC. ;
Defendants,
STIPULATION AND ORDER OF SETTLEMENT
RD
This Stipulation and Order of Settlement is entered into as of this3 day of April, 2008,
by and among Plaintiffs Keith A. Sultzbaugh ("Sultzbaugh") and Republic Services Group of
Pennsylvania, LLC d/b/a/ York Waste Disposal ("York Waste Disposal') (collectively
"Plaintiffs"), and Defendants Lemoyne Borough ("Lemoyne Borough"), Penn Waste, Inc.
("Penn Waste"), and Dr. James A. Yates, Wayne S. Mountz, Susan J. West, Samuel R. Leach,
Jodie L. Ruediger, Judith McAllister, and Robert W. Farver (collectively the "Lemoyne Borough
Council") (Lemoyne Borough, Penn Waste, and the Lemoyne Borough Council are collectively
referred to as the "Defendants").
RECITALS
A. WHEREAS, in September, 2007, the Lemoyne Borough issued an Invitation to
Bidders for municipal solid waste collection and disposal and recyclables collection and
marketing services in Lemoyne Borough and covering a three (3) year period beginning January
1, 2008 (the "Waste Contract"); and
B. WHEREAS, on October 4, 2007, sealed bids were submitted to Lemoyne
Borough by York Waste Disposal and Penn Waste; and
C. WHEREAS, York Waste Disposal submitted the lowest bid; and
D. WHEREAS, on December 6, 2007, the Lemoyne Borough Council passed a
motion determining, inter alia, that York Waste Disposal did not qualify as a responsible bidder;
and
E. WHEREAS, on December 6, 2007, the Lemoyne Borough Council also passed a
motion awarding the Waste Contract to Penn Waste and thereafter Lemoyne Borough entered
into the Waste Contract with Penn Waste; and
F. WHEREAS, Plaintiffs each filed a Complaint (followed by Amended
Complaints) against one or more of the Defendants seeking declaratory and injunctive relief
-2-
including, inter alia: (A) a declaration that the determination made by Lemoyne Borough and the
Lemoyne Borough Council that York Waste Disposal did not qualify as a responsible bidder was
arbitrary, capricious, unlawful, improper and an abuse of discretion; and (B) a declaration that
Lemoyne Borough and the Lemoyne Borough Council had violated the Pennsylvania Sunshine
Act, 65 Pa. C.S.A. § 701 et seq. in connection with its review of bids and award of the Waste
Contract; and
G. WHEREAS, the Defendants filed Answers and/or other responses to the
Plaintiffs' Complaints denying all allegations and opposing the relief sought by Plaintiffs; and
H. WHEREAS, the claims asserted in the Complaint sub nom Keith A. Sultzbaugh
v. Lemoyne Borough and Penn Waste, Inc., Cumberland County Court of Common Pleas, Civil
Action No. 07-7730, and the claims asserted in the Complaint sub nom Republic Services Group
of Pennsylvania LLC d/b/a York Waste Disposal v. Lemoyne Borough, et al., Cumberland
County Court of Common Pleas, Civil Action No. 07-7729, together with all defenses thereto as
asserted in the Answers and/or other responses to the Plaintiffs' Complaints and/or otherwise
related to or arising out of the Complaints are hereinafter referred to as "the Actions"; and
1. WHEREAS, the parties anticipate that on ** _ 2008, the Lemoyne
Borough Council will pass a motion determining and providing the following: "Lemoyne
Borough and the Lemoyne Borough Council currently are parties to litigation regarding the
recent award of a new Waste Contract to Penn Waste. In order to resolve disputed claims and
defenses, and with the advice of counsel, it is hereby moved that Lemoyne Borough and the
Lemoyne Borough Council enter into a proposed Settlement and Order of Stipulation as
prepared by counsel for the parties, which Settlement includes the following key provision, and
** or about May 1, 2008, or at the next regularly scheduled public meeting of the Lemoyne
Borough Council immediately following court approval of this Stipulation
-3-
which Settlement is further adopted by Lemoyne Borough and Lemoyne Borough Council by this
motion:
Lemoyne Borough and Lemoyne Borough Council did not have the benefit of full
and complete information on December 6, 2007 regarding whether York Waste Disposal
qualified as a responsible bidder, and that upon further review, the Lemoyne Borough Council
has determined that York Waste Disposal was not in breach of contract under the 2005-2007
Solid Waste Collection Contract, and consequently the Lemoyne Borough Council hereby
revokes and rescinds, in its entirety, its prior determination that York Waste Disposal was not a
responsible bidder; and
J. WHEREAS, the Defendants agree that they shall not advance, make or assert any
positions or statements contrary to or inconsistent with the language set forth in the preceding
paragraph in connection with any future bid solicitation or bid award processes involving the
collection or disposal of municipal solid waste or recycling; and
K. WHEREAS, specifically conditioned upon the Lemoyne Borough Council
passing a motion using the language set forth above in Whereas clause "I" and not making or
passing any other contrary or inconsistent determinations or motions, the Plaintiffs and the
Defendants (individually a "Party," and collectively "the Parties"), desire to enter into this
Stipulation and Order of Settlement to avoid burdensome and protracted litigation, and to resolve
disputed claims and defenses;
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained, and for good and valuable consideration, intending to be legally bound hereby, the
Parties agree and stipulate as follows:
-4-
TERMS AND CONDITIONS
The Parties agree that the Whereas clauses set forth above are incorporated into
these Terms and Conditions as if fully set forth herein.
2. The Plaintiffs agree within five (5) business days following approval of this
Stipulation and Order of Settlement by the Court to file discontinuances pursuant to Rule 229(a)
of the Pennsylvania Rules of Civil Procedure dismissing their Complaints in the Actions with
prejudice.
Specifically conditioned upon the Lemoyne Borough Council passing a motion
using the language set forth in Whereas clause "I" above, and upon approval of this Stipulation
and Order of Settlement by the Court, the Parties, for themselves and for their respective
directors, shareholders, officers, affiliates, agents, employees, servants, successors and assigns
("the Releasors"), hereby remise, release, and forever discharge each other Party, and their
respective directors, shareholders, officers, affiliates, agents, employees, servants, successors and
assigns, of and from any and all manner of Actions and causes of Actions, damages, claims, and
demands whatsoever, in law or in equity, in connection with, related to, or arising out of, any
claim or allegation that was or could have been asserted in connection with, related to, or arising
out of, the matters addressed in this Actions and/or the award of the Waste Contract by Lemoyne
Borough to Penn Waste, which the Releasors have or had from the beginning of the world
through the date of this Stipulation and Order of Settlement, except for claims to enforce the
obligations of the Parties pursuant to this Stipulation and Order of Settlement.
4. York Waste Disposal agrees that it will not fund, solicit or encourage the filing by
a Lemoyne Borough taxpayer of any other Actions challenging the award of the Waste Contract
to Penn Waste.
-5-
5. The Parties hereto acknowledge that they have entered into this Stipulation and
Order of Settlement with the opportunity for advice and consent of counsel, and that they do so
knowingly and voluntarily, with a complete understanding of the Terms and Conditions hereof,
and that they agree not to make any statements or engage in any Actions inconsistent with the
Terms and Conditions hereof.
6. This Stipulation and Order of Settlement may be executed in counterparts by the
Parties hereto, each of which shall be deemed to be an original, and all of which shall be one and
the same document. Signatures received by facsimile shall be deemed originals.
7. This Stipulation and Order of Settlement shall be binding upon and inure to the
benefit of the Parties hereto, and their respective directors, shareholders, officers, affiliates,
agents, employees, servants, successors and assigns.
This Stipulation shall be governed by the laws of the Commonwealth of
Pennsylvania, without regard to choice of law principles.
9. This Stipulation is the entire agreement among the Parties, and may be modified
only in writing signed by the Parties or their duly appointed agents and approved by the Court.
10. This Stipulation and Order of Settlement shall be presented to the Court for
approval. If for any reason the Court does not approve this Stipulation and Order of Settlement,
or if the Lemoyne Borough Council does not pass a motion as described in the WHEREAS
clause "I" above, then this Stipulation shall be null and void and all claims and defenses
otherwise released herein by the Parties shall be preserved.
[Rest of page left intentionally blank]
-6-
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals as of the
day and year first above written.
Attest:
Attest:
Lemoyne Borough Council
Shireen Farr, President
Attest:
Republic Services of Pennsylvania LLC
d/b/a York Waste isposal
Dean DiValerio, Vice President
-7-
't
Ti
-
Tv
.. 1
APR 2 3 2008
KEITH A. SULTZBAUGH
Plaintiff,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V. CASE NO. 07-7730 CIVIL
LEMOYNE BOROUGH and PENN WASTE, INC. :
Defendants,
REPUBLIC SERVICES GROUP OF
PENNSYLVANIA LLC d/b/a YORK WASTE
DISPOSAL
Plaintiff
V.
LEMOYNE BOROUGH
DR. JAMES A. YATES
WAYNE S. MOUNTZ
SUSAN J. WEST
SAMUEL R. LEACH
JODIE L. RUEDIGER
JUDITH McALLISTER
ROBERT W.FARVER
PENN WASTE, INC.
Defendants,
CASE NO. 07-7729 CIVIL ?
ORDER
AND NOW, thisar- day of April, 2008, the foregoing Stipulation of Settlement of the
Parties is approved and the provisions thereof are hereby the ORDER of this Court.
Guido, Judge
-8-
3
"Pt
,
4
.2008
ems. goy ??
y/24?o8-
A??y /1>• S??lcfrZ.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
REPUBLIC SERVICES GROUP
OF PENNSYLVANIA, LLC
d/b/a YORK WASTE DISPOSAL
PLAINTIFF,
NO. 07-7729
V.
LEMOYNE BOROUGH,
DR. JAMES A. YATES,
WAYNE S. MOUNTZ,
SUSAN J. WEST,
SAMUEL R. LEACH,
JODIE L. RUEDIGER,
JUDITH MCALLISTER,
ROBERT W. FARVER, and
PENN WASTE, INC.
DEFENDANTS
CIVIL ACTION: ACTION FOR
DECLARATORY JUDGMENT
JURY TRIAL DEMANDED
PRAECIPE TO SATISFY DOCKET
TO THE PROTHONOTARY:
Please mark the above-captioned action discontinued, settled, and satisfied, with
prejudice.
BLAKEY, YOST, BUPP & RAUSCH, LLP
y:
Charles A. Rausch, Esquire
Supreme Ct. ID No. 36814
17 East Market Street
York, PA 17401
(717) 845-3674
Attorney for Plaintiff
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