HomeMy WebLinkAbout09-7697l
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
OLDE FORGE BUILDERS -
NEWVILLE, INC.
Plaintiff
V.
CIVIL ACTION - EQUITY
NO. 2009 --£w- 70 7
NORTH NEWTON TOWNSHIP
Defendant
JURY TRIAL DEMANDED
NOTICE TO DEFEND AND CLAIM RIGHTS
Ci V i < r;-'' p-
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 OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
. CAN GET LEGAL HELP.
Court Administrator, Fourth Floor
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
LAW OFFICES OF PETER I RUSSO, P.C.
Peter J. Russo, Esquire
Attorney ID No. 72897
5006 East Trindle Road, Suite 100
Mechanicsburg, PA 17050
717-591-1755
prussoC pjrlaw.com
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
OLDE FORGE BUII.DERS -
NEWVILLE, INC.
Plaintiff
V.
NORTH NEWTON TOWNSHIP
Defendant
Attorney for Plaintiff
CIVIL ACTION - EQUITY
NO. 2009 - CV -
JURY TRIAL DEMANDED
COMPLAINT ATTACHED TO PRELIMINARY INJUNCTION TO RESTRAIN
DEFENDANT FROM DRAWING UNDER LETTERS OF CREDIT
AND NOW, COMES Olde Forge Builders - Newville, Inc., the plaintiff, by and through
her attorney, Law Offices Peter J. Russo, P.C. and brings this action against the defendant, North
Newton Township, and avers the following in support thereof:
PARTIES
1. The Plaintiff is Olde Forge Builders - Newville, Inc., a Pennsylvania corporation with a
principal place of business located at 9 Keystone Drive, Mechanicsburg, Cumberland
County, Pennsylvania.
2. The Defendant is North Newton Township, a second-class township with its office 433
Oakville, Shippensburg, Cumberland County, Pennsylvania 17257.
OPERATIVE FACTS
3. At all times relevant hereto Plaintiff was the developer of North Newton Hill Phase 2A and
North Newton Hill Phase 3.
4. At all times relevant hereto Plaintiff was required to post a letter of credit for North Newton
Hill Phase 3, specifically Irrevocable Standby Letter of Credit No. D004009 issued by
Fulton Bank. A true and correct copy is attached hereto as Exhibit A.
5. The Irrevocable Standby Letter of Credit No. D004009 for $343,600.00 issued by Fulton
Bank was based on the Improvement Guarantee Estimate as provided by Act One
Consultants. A true and correct copy is attached hereto as Exhibit B.
6. At all times relevant hereto Plaintiff was required to post a letter of credit for North Newton
Hill Phase 2A, specifically Irrevocable Standby Letter of Credit No. D003651 for
$196,000.00 issued by Fulton Bank (collectively known as "the Letters of Credit"). A true
and correct copy is attached hereto as Exhibit C.
7. The Irrevocable Standby Letter of Credit No. D003651 for $196,000.00 issued by Fulton
Bank was based on the Improvement Guarantee Estimate as provided by Act One
Consultants. A true and correct copy is attached hereto as Exhibit D.
8. On or about July 10, 2009, Michael A. Scherer, Esquire acting as solicitor for North Newton
Township sent a certified letter to the Plaintiff advising Plaintiff of the Board of
Supervisors' decision to approve advertising bids for the installation of a wearing course of
asphalt for North Newton Hills Phase 2A and North Newton Hills Phase. A true and correct
copy is attached hereto as Exhibit E.
9. At no time did Defendant advise Plaintiff of any other failures or concerns which may have
been covered by either Irrevocable Standby Letter of Credit.
10. Defendant has made several attempts to draw on Irrevocable Standby Letter of Credit No.
D004009 and Irrevocable Standby Letter of Credit No. D003651 (collectively known as
"the Letters of Credit") claiming the Defendant was required to act in Plaintiff's stead.
11. On or about October 27, 2009, Plaintiffs counsel advised the Defendant's solicitor of the
Defendant's attempts to draw from the Irrevocable Standby Letters of Credit for tasks that
had both already been completed and approved by engineers on behalf of the Defendant or
for repairs that Plaintiff was not given the opportunity to correct. A true and correct copy of
said correspondence attached hereto as Exhibit F.
12. The Defendant's solicitor acknowledged receiving Exhibit F via email on October 27, 2009.
13. It is believe, therefore averred that William E. Green inspected the curbing work completed
by Plaintiff on or about September 6, 2006 and deemed the curbing work to be 100%
complete. A true and correct copy of said correspondence attached hereto as Exhibit G.
14. Notwithstanding the foregoing, on October 28, 2009, Defendant made an additional request
of Fulton Bank that Irrevocable Standby Letter of Credit No. D004009 be drawn down by
$60,073.22 (see the true and correct copy of said correspondence attached hereto as Exhibit
H) and Irrevocable Standby Letter of Credit No. D003651 be drawn down by $35,579.85
(See the true and correct copy of said correspondence attached hereto as Exhibit 1) in order
to cover "repairs to curbing and prepare and place a wearing course."
15. Prior to each of the requests to draw from the Letters of Credit, Defendant knew or should
have know that the curbing work was completed by Plaintiff since that exact work was
completed and approved by the William E. Green.
16. Prior to the latest request to draw from the Letters of Credit, Defendant knew or should have
know that the curbing work was completed by Plaintiff since that exact work was completed
and approved by the William E. Green after it was pointed to Plaintiff's solicitor.
17. Prior to Defendant's requests to draw from the Letters of Credit, Defendant failed to notify
or otherwise advise Plaintiff of any repair work required for the curbing in North Newton
Hills Phase 2A or Phase 3.
18. Defendant's action in attempting to draw from the Letters of Credit knowing that the
Defendant has never notified or otherwise advised Plaintiff of any repair work required for
the curbing in North Newton Hills Phase 2A or Phase 3 is an act of fraud, specifically:
a. Defendant knowingly and intentionally made a material misrepresentation to Fulton
Bank when is represented that Defendant was required to repair curbing in Plaintiff's
stead;
b. Fulton Bank's reliance on the Defendant's misrepresentation is justifiable; and
c. Plaintiff has been or will be damaged as set forth herein.
19. Defendant's action in attempting to draw from the Letters of Credit knowing that the
Defendant has never notified or otherwise advised Plaintiff of any repair work required for
the curbing in North Newton Hills Phase 2A or Phase 3 is an act of intentional
misrepresentation, specifically:
a. Defendant knowingly and intentionally made a material misrepresentation to Fulton
Bank when is represented that Defendant was required to repair curbing in Plaintiff's
stead;
b. The Defendant's representation is material to the transaction at hand;
c. The Defendant knew or should have known that the representation it made to Fulton
Bank was made falsely or recklessly;
d. Defendant had the intent to mislead Fulton Bank in order to have Fulton Bank rely on
the representations in order to draw funds from the Letters of Credit;
e. Fulton Bank's reliance on the misrepresentation is justifiable; and
f. Any and all injuries suffered by the Plaintiff were proximately caused by Fulton Bank's
reliance on the misrepresentations of the Defendant.
20. Defendant's action in attempting to draw from the Letters of Credit knowing that the
Defendant has never notified or otherwise advised Plaintiff of any repair work required for
the curbing in North Newton Hills Phase 2A or Phase 3 is an act of unjust enrichment,
specifically:
a. Plaintiff conferred a benefit upon the Defendant in the form of the Letters of Credit;
b. Defendant wrongfully appreciated an unintended benefit by knowingly and improperly
attempting to draw on the Letters of Credit;
c. If Defendant were permitted to draw from the Letters of Credit, the Defendant would
receive a benefit from its wrongfully conduct;
d. If Defendant were permitted to benefit from its wrongfully conduct the result would be
inequitable for the Plaintiff.
21. At no time prior to October 28, 2009, was there a condition or requirement that Plaintiff's
maintain a maintenance bond for Eighteen Thousand Dollars ($18,000.00) as demanded in
Defendant's letter to Fulton Bank October 28, 2009. See Exhibits G and H.
22. Defendant's action in attempting to require an additional $18,000 for a maintenance bond
from the Letters of Credit knowing that the Defendant had never been required to provide
such bond for North Newton Hills Phase 2A or Phase 3 is an act of fraud.
23. Defendant's action in attempting to require an additional $18,000 for a maintenance bond
from the Letters of Credit knowing that the Defendant had never been required to provide
such bond for North Newton Hills Phase 2A or Phase 3 is an act of intentional
misrepresentation.
24. Defendant's action in attempting to require an additional $18,000 for a maintenance bond
from the Letters of Credit knowing that the Defendant had never been required to provide
such bond for North Newton Hills Phase 2A or Phase 3 is an act of negligent
misrepresentation.
25. Defendant's action in attempting to require an additional $18,000 for a maintenance bond
from the Letters of Credit knowing that the Defendant had never been required to provide
such bond for North Newton Hills Phase 2A or Phase 3 is an act of unjust enrichment.
WHEREFORE, Plaintiff, Olde Forge Builders - Newville, Inc. respectfully request that
this Honorable Court enter judgment in favor of Plaintiffs for damages, costs of suit and counsel
fees.
Respectfully submitted,
LAW OFFICES OF PETER J. RUSSO, P.C.
Peter J. Russo, quire
Attorney for Plaintiff
Attorney ID No. 72897
5006 East Trindle Road, Suite 100
Mechanicsburg, PA 17050
717-591-1755
prusso@pjrlaw.com
Date: Friday. November 06, 2009
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
OLDE FORGE BUILDERS -
NEWVILLE, INC.
Plaintiff
CIVIL ACTION - EQUITY
V.
NORTH NEWTON TOWNSHIP
Defendant
NO. 2009 - CV -
JURY TRIAL DEMANDED
VERIFICATION
I, Craig Hench, President of Olde Forge Builders - Newville, Inc., am authorized to make this
verification on its behalf and verify that that the statements made in the foregoing document are true
and correct to the best of my knowledge. I understand that false statements made herein are subject
to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities.
Olde Forge Builders - Newville, Inc.
BY: 0/? .
Craig Hench, President
Date:._
EXH?B?T A
FultmBank
LISTENING.
BUSINESS FINANCIAL SERVICES GROUP
Irrevocable Standby Letter of Credit Number: D004009
L'OPY
Issue Date: April 06, 2006
Expiry Date: April 06, 2007
Beneficiary
North Newton Township
255 Ott Road
Shippensburg, PA 17257
Gentlemen:
Amount: USD 343,600.00
Applicant
Olde Forge Builders-Newville, Inc.
9 Keystone Drive
Mechanicsburg, PA 17050
We hereby establish this Irrevocable Standby Letter of Credit No. D004009 effective immediately by order and for
the account of Olde Forge Builders-Newville, Inc., up to an aggregate amount of $343,600.00 (Three Hundred
Forty Three Thousand Six Hundred and 00/100 U.S. Dollars) which is available upon presentation of your draft(s)
at sight drawn on Fulton Bank, Attn: Letter of Credit Dept., One Penn Square, Lancaster, PA 17602 bearing the
clause "Drawn under Fulton Bank Standby Letter of Credit No. D004009 dated April 6, 2006."
All drafts must be accompanied by a statement on the letterhead of and purportedly signed by an authorized
representative of North Newton Township indicating name and title of signatory stating "Olde Forge
Builders-Newville, Inc. has not completed the improvements for North Newton Hills, Phase 3 in North Newton
Township as required by North Newton Township."
Our liability under this Standby Letter of Credit is strictly limited to the payment of your drafts, which must be
presented to Fulton Bank on or before April 6, 2007, by 3:00 p.m. ("expiration date") or any extended expiration
date.
The expiration date of this Standby Letter of Credit shall be automatically extended without written amendment for
additional 1 (one) year periods beginning with the expiration date and upon each anniversary of such date, unless
30 (thirty) days prior to such expiration date or each anniversary of such date we notify North Newton Township in
writing, by overnight courier, that we elect not to extend this Standby Letter of Credit.
Payment of this Standby Letter of Credit shall be made without determination of conditions or facts pertaining to
related contractual agreements between Olde Forge Builders-Newville, Inc. and North Newton Township.
If cancellation of this Standby Letter of Credit is required before the expiry date herein or any extended expiry date,
the original of this Standby Letter of Credit and all amendments, if any, must be returned to us with the
beneficiary's letter requesting cancellation.
Any correspondence regarding this Standby Letter of Credit should be addressed to Fulton Bank, Attn: Letter of
Credit Dept., One Penn Square, Lancaster, PA 17602. Telephone inquiries regarding this Standby Letter of Credit
should be directed to the Letter of Credit Dept. at (717) 291-2649.
Page I of 2
Letter of Credit Department - One Penn Square • Lancaster, PA 17602 • (717) 291-2476 - Fax (717) 393-7986
fultonbank.com
113 * B
RdtmBank &e Y
LISTENING.
BUSINESS FINANCIAL SERVICES GROUP
Irrevocable Standby Letter of Credit Number: D003651
law Date: March 02, 2005
Expiry Date: March 02, 2006
Amount: USD 196,000.00
Beneficiary
North Newton Township
433 Oakville Road
Shippensburg, PA 17257
Gentlemen:
Applicant
Olde Forge Builders - Newville Inc.
9 Keystone Drive
Mechanicsburg, PA 17050
We hereby establish this Irrevocable Standby Letter of Credit No. D003651 effective immediately by order and
for the account of Olde Forge Builders - Newville Inc., up to the aggregate amount of $196,000.00 (One Hundred
Ninety Six Thousand and 00/100 U.S. Dollars) which is available upon presentation of your draft(s) at sight
drawn on Fulton Bank, One Penn Square, Lancaster, PA 17602 bearing the clause "Drawn under Fulton Bank
Standby Letter of Credit No. D003651 dated March 2, 2005." All drafts must be accompanied by a statement on
the letterhead of and purportedly signed by an authorized representative of North Newton Township indicating
name and title of signatory stating "Olde Forge Builders - Newville Inc. has not completed the improvements for
North Newton Hills Development, Phase 2A in North Newton Township as required by North Newton
Township."
Our liability under this Standby Letter of Credit is strictly limited to the paymentof your drafts, which must be
presented to Fulton Bank on or before March 2, 2005, by 3:00 p.m. ("expiration date") or any automatically
extended expiration date.
The expiration date of this Standby Letter of Credit shall be automatically extended without written amendment
for additional 1 (one) year periods beginning with the expiration date and upon each anniversary of such date,
unless 30 (thirty) days prior to such expiration date or each anniversary of such date we notify North Newton in
writing, by overnight courier, that we elect not to extend this Standby Letter of Credit.
Any correspondence regarding this Standby Letter of Credit should be addressed to Fulton Bank, Attn: Letter of
Credit Dept., One Penn Square, Lancaster, PA 17602. Telephone inquiries regarding this Standby Letter of
Credit should be directed to the Letter of Credit Dept. at (717) 291-2649.
Except as otherwise expressly stated herein, this Standby Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of Commerce Publication No. 500.
very truly rte,
FULTON BANK
C?9? ?/) A??'o V_ P
Authorized Signature
Page 1 of 1
Letter of Credit Department • One Penn Square • Lancaster, PA 17602 - (717) 291-2476 • Fax (717) 393-7986
fultonbank.com
EXH?B?T ?
Sep 13 06 09:38a Bonnie Myers 717-477-8842 p.2
02/25/2085 11:02 717-4W314 ACT ONE PAGE 02/82
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I pw#EMEmIT 6uARAmm E6Twe - NORTH NEMrON,HLLS PHASE 2A ;' •_ :, :•.
NoAmobw 1 2004 R9idNd 6 NOiilFi 11EYIfiDN TOrMII$tilP `
ffem UNIT Lwff x087
t and
a, 1.50 4 &M 1
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2 EA 1 i ZOOLOO
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30
Finos
1 • LF
2 5D
4
SRFM? LF 4001 &am=
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impitTgap w?9.
g. ? 240
LF MOD
4. ?oo?oo
470 LF IJAMOM
IL" Gpeadw Z20 a A 1.100.00
F?oaiow 61s? YW
b+l? i 9 EA low
BaNn -iron 2 EA : 00 00
450 LP 1 740A0
I
128 Lt;
1
4 ZLW
cumm 1724 LF 00 li5R00
Ahod 2A Sd3bo !
Camhod 2A ?•
3100
SY
7.00
2 5•
t Oou?ae
?awn?erd 3100
3100
405
405
BY
SY
SY i
&
3 7
s 18.00
00
Is t
SIMMON lwbblr S 14,M"
and Mukh 1 LS 3 000.00 i 8
Tmm (dm vAftrAW ti ab EA 5 MOD 1 1 &0"
750 Lf Mi s 7,
_! a
me Ilmns 1 Cosh 2 E/1 200.00
w • ' JS? :v
'was EST RATE SUBTOTAL $174.1MOD
p.5FEiFRIirt 111 1Irdpa -Sm I R M-2.575 i 4.3"
..?„?:• ? lox s 1??eso
1FE?=??•? j.???' TOT " .fl0
a;. ; ewra. Ameuwt- =195.000.00
?DC3133
09-12-2006 08:42 CRAIGHENCH 7177662355---------- PAGE2
EXH?B?T ?
Nov 06. 09 08:36a ACT ONE Consultants, Inc. (717) 236-3314 p.2
IMPROVEMENT ESTWATE - WORTH miEwTON HILLS - PMASE 3
ITEN CA ANT[TY UNIT UMT COST TOTALS
SITE WOW
A4 I UST TfwKtft S 9ardd?ll 1 3318 LF $ 5.00 $ 16,590.00
Sib Work Subboah $ 1 S98A0
EROSION R DIME fATWN CO L
B9 C4nsbuc*mA6m ms I 2 EA $ 500.00 $ 1,000.00
82 18" SM Fence I 1195 LF $ 1.25 $ 1,493.75
B3 ReinlOrcod Sit Fence 407 LF $ 2.00 $ 814.00
84 Sedbwd T 3 EA $ 2.000.00 $ 6,000.00
B5 Inlet Sediment Trap 1 15 EA $ 100.00 $ 1,500.00
86 DWmion Dikes 1 197 LF IS 4.00 $ 788.00
B7 Ines
p4w 9twxales
326
LF
; 4.00
$ 1.304.00
88 Level Spreader 325 LF $ 5.00 S 1.625.00
Erosion a Sedimentation Conkoi Subtoted; S 14 24.75
STORM SEVAM
C1 Ink#e *Tops & Grates 1 15 EA $ 1.000.00 $ 15,000.00
C2 Basin • 18" pkpe 1 7 EA $ 2,500.00 $ 17,500.00
C3 18" CPPIS I 1049 LF $ 25.00 3 26,225.00
C4 48" CMP Culvert/END TREA I ENT 91 LF $ 80.00 $ 7,280.00
C5 .38-60 CMP ARCHIENO TRE TMENT 74 LF I S 65.00 1S 4.810.00
CB Delention Basin 54, 55, 1 1 LU PAP SUM S 5,000.00
S tornn Sewers Subbelal: $ 75,81SAO
STREE TS
01 Ctub 4520 LF $ 12.00 S 54,240.00
D2 6" Crushed 2A S arse 6882 SY $ 7.00 $ 48,174.00
03 2.5" BCBC 6882 SY $ 6.00 S 41,292.00
04 1.5" 102 )YeeLng Course 8882 SY $ 5.00 $ 34,410.00
05 Ptun Station Access - 6" C 2A Subbase 0 SY $ 7.00 $ -
D6 Pump Sbtion Access - 0 SY $ 13.00 $ -
Streeft Subtotal: $ 178115.00
LANDSCAPING 1
E1
E2 T soil Seed and Mulch
S hit Rag Fermi I 1
1 840 LUMP SUM
LF Is 9.60 $ 7,000.00
S 8.084.00
MISCELLANEOUS 1 landsoa i Subtotak S 13,064.00
F 1 Concrete Monuments
F2 Si ns 4
9 EA $ 200.00
EA $ 500.00 $ 800.00
$ 4.500.00
MiscaNaneaaus Subtotal: $ 5,300.00
ESTIMATED SUBTOTAL S 305,409.75
EMirnaled Inspection Fees - 2.5% $ 7.63534
10% Contingency S 30,540.98
TOTAL $ 343,585.97
EWMnled Surety Guarantee Amount f 343,ti00.!!D
i
EXH?g?T E
Law Offices
O'BRIEN, BARIC & SCHERER
19 West South Street
Carlisig Pennsylvania 17013
Robert L O'Brien
David A. Baric
Michael A. Scherer
7ricia A Naylor
Of Counsel
Craig Hench
Olde Forge Builders, Inc.
9 Keystone Drive
Mechanicsburg, Pennsylvania 17050
RE:
Dear Mr. Hench:
North Newton Hills
Phase Ila and III
(717) 249-6873
Fax (717) 249-575S
E-mail. mscherarRobslaw, cm
July 10, 2009
At the July 7, 2009 Board of Supervisors meeting, the supervisors of North
Newton Township voted to approve advertisement for bids for the installation of the
wearing course of asphalt for the above-captioned project for which you are the
developer.
Payment for this improvement to your development will come from the letter of
credit you obtained from Fulton Bank to bond your development.
You are encouraged to complete the roadwork required as a condition of the
plan prior to the township contracting with a third party to do so, at your expense.
Very truly yours,
MAS/ar
cc: eter Russo, Esquire
North Newton Township
File
O'BRIEN BARK & SCHERER
x4A,
Michael A. Scherer
mae.didnntMarthnewtonhitiolhench3.kr
EXH?B?T F
$ .
PETER J. RUSSO. ESQUIRE
ASHLEY R. SIPE. PARALEGAL
Michael A. Scherer, Esquire
O'Brien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
RE: OLDE FORGE BUILDERS-NEWVILLE. INC.
REQUEST TO DRAW ON LETTER OF CREDIT
Dear Mike,
VIA US MAIL
VIA EMAIL
VIA FAX
My client has advised me that on or about October 19, 2009 your client, North Newton
Township made a request of Fulton Bank to draw from the Letter of Credits issued by Fulton
Bank in connection with North Newton Hills Phase 2A and Phase 3.
It is our understanding that your client's request was based on the following work:
$77,184.35 for street paving
$15,668.72 for repair or replacement of curbing
2,800.00 for repair or replacement of storm water inlet
$95,653.07 TOTAL
For several months, your client, my client, you and I have had discussions about the
eventual need to pave the streets in North Newton Hills Phase 2A and/or Phase 3, however at no
time has there ever been any discussion or notice about the need to replace the curbing or a storm
water inlet.
We believe that William Green has already signed off on the satisfactory completion of
both the curbing and the storm water inlets in Phase 2A and Phase 3. 1 am placing your client on
notice by this letter that their intentional request to draw from the letter of credit for work already
deemed completed by William Green and/or your client, specifically any work relating to
anything other than paving, will be viewed as fraud and we will take appropriate action to seek
recourse for your client's actions.
LAW OFFICES OF
PETER J.RUSSO ec.
ATTORNEYS AT LAW
ELIZABETH ]. SAYLOR. ESQUIRE
AMBER L SOUfHARD. PARALEGAL
Tuesday, October 27, 2009
5006 FAST TRINDLE ROAD. SUITE 100. MECHANICSBURG, PA 17050
PHONE: (717) 591-1755 FAX: (717) 591-1756
If you should have any questions or concerns, please feel free to contact me via email at
pros q,,Rjrlaw.com or by telephone at (717) 591-1755 extension 102 or my paralegal, Ashley
Sipe via email at giRa@pjrlaw.com or by telephone at (717) 591-1755 extension 103.
Very truly yours,
Peter J. Russo
cc: Olde Forge Builders - Newville
Fulton Bank
E)(" IBIT G
B -LEBO ENGRqMRING, 111C
CivdEngineers -P?anners -surveyors -structuralEngineers
17 STATE AVENUE
CARLISLE, PA 17013-4431
PHONE: (717) 243-4x14 EAX: (717) 243-3301
EMAIL: brehmseia net
DOUGLAS S. BREHM, PLS.
PRESIDENT
GREGORY S. LEBO, P.E.
VICE-PRESIDENT
TO: North Newton Township
FROM: William E. Green, P.E.
DATE: September 7, 2006
SUBJECT: Bond Reduction Request
for North Newton Hills
Phases 2A and 3
STATLER & LAHR, INC.
(I98I-1988)
S-MLER-BREHM ASSOCIATES INC.
(198-199$)
On September 1, 2006, our office received a request for a reduction in the security being
held for the Township related improvements of Phase 3 at North Newton Hills. Upon
reviewing our files for Phase 2A, we also recommend that a portion of the security being
held for this phase be released. The current amount of security being held is $68,462.00
for Phase 2A, and $343,600.00 for Phase 3.
We visited the site on September 5, 2006, and recommend the following reductions from
the Phase 2A security:
Item B2 - 18" Silt Fence - complete
Item B3 - Reinforced Silt Fence - complete
Item B4 - Sediment Trap - complete
Item B6 - Diversion Dikes - complete
Item B7 - Interceptor Swales - complete
Item D5 - Pump Station Access (stone) - complete
Item D6 - Pump Station Access (paving) - complete
Item E1 - Topsoil, Seed and Mulch - complete
Item E3,- Split Rail Fence - complete
Inspection Fees - 80% complete
Total Recommended Reduction for Phase 2A
_ $ 1,350.00
_ $ 3,080.00
_ $ 2,000.00
_ $ 960.00
_ $ 1,880.00
_ $ 2,835.00
_ $ 5,265.00
_ $ 3,000.00
_ $ 7,200.00
_ $ 3.484.00
_ $27,570.00
We have also reviewed the request for reduction of the Phase 3 security as submitted by
ACT ONE on September 1, 2006, and note that none of the work associated with items
B8, D4, E 1, E2, F 1 and F2 has been completed.
cbambersburg O? ice: 31 N04 Second Streets Suite 4 cW mbersburg PA 17201-1819
PbOne: (717) 267-1401
North Newton Township
September 7, 2006
Page 2
We concur that work items A4, B1, B5, B6, B7, C2, C3, C4, C5, C6, D1, D2, D3 are all
100% complete.
Only 50% of items B2, B3, B4 should be released at this time. These items need to
remain in place until the lots are stabilized with grass cover and/or pavement.
We do not recommend releasing security for two of the inlets listed under item C1
because steps have not yet been installed in inlets 32 and 33. The need to install these
steps was noted in our April 12, 2006 field report.
Considering the above, we recommend a release of $246,674.50 from the current security
being held for the Township related Phase 3 improvements.
Should you have any questions, please do not hesitate to contact our office.
WEG/dsc
cc: ACT ONE Consultants, Inc.
Old Forge Builders
file:memo-nnt-north newton hills-bond reduction
BRRHM-IM0 EN9EMEMNG, INC.
EXHIBIT H
Supervisors
David R. Parthemore
J. Glenn Glesner
Harold L Hamilton
(717) 776-3409,.
nwwtontwp®camcast.net
Secretary/lreasurer
October 28, 2009
Fulton Bank
Letter of Credit Department
W. Jared Griest
One Penn Square
Lancaster, PA 17602
RE: Draw on Standby Letter of Credit No. D004009
Applicant: Olde Forge Builders-Newville, Inc.
Dear W. Griest:
Bonnie L Myers
255 Ott Road
Shippensburp PA 17257...
(717) 532-5372
(717) 776-7665
Fax (727) 477-8842
nnewtontwp®embargmaiL cony
Olde Forge Builders - Newville, Inc. has not completed the improvements for North Newton
Hills Phase 3 in North Newton Township as required by North Newton Township. Therefore,
North Newton Township has made repairs to curbing and prepared and placed a wearing course
on the streets of Phase 3 in the stead of Olde Forge Builders, Inc.
The North Newton Township Board of Supervisors requests a draw in the amount of
$60,073.22 from letter of credit D004009 (Phase 3). The required draft is enclosed. Please see
my correspondence from October 23, 2009 for the referenced letter of credit and applicable
amendment.
The township must hold an 18 month maintenance bond on the improvements following the
dedication of the streets. Therefore until such maintenance bond is received, the remaining
balances of the letters of credit should remain intact and amendments thereof be issued to the
beneficiary, North Newton Township. Please forward payment to: North Newton Township,
255 Ott Road, Shippensburg, PA 1.7257. Thank you for your timely assistance in this matter.
Best regards,
? fdZC?
David R. Parthemore
Chairman
North Newton Township
Board of Supervisors
Enclosures
Cc: 01de Forge Builders - NewvIIle, Inc. Craig Hench w/o attachments
Municipal Building. 433 Oakville Road, Shippensburg, PA 17257
(717) 77613404
www.nordmewtontDwnship.com
EXHIBIT I
Supervisors
David R. Parthemore
J. Glenn Glesner
Harold L Hamilton
(717) 776-3409..
nnewtontwp®comcast. net
October 28, 2009
Fulton Bank
Letter of Credit Department
Mr. Jared Griest
One Penn Square
Lancaster, PA 17602
RE: Draw on Standby Letter of Credit No. D003651
Applicant: Olde Forge Builders-Newville, Inc.
Dear Mr. Griest:
Secretary Treasurer
Bonnie L Myers
255 Ott Road
Shippensburg, PA 17257-
M7) 532-5372
M7) 776-7665
Fax: (717) 477-8842
nnewtontwpoembargmatbcom
Olde Forge Builders - Newville, Inc. has not completed the improvements for North Newton
Hills Development, Phase 2A in North Newton Township as required by North Newton
Township. Therefore, North Newton Township has made repairs to curbing and prepared and
placed a wearing course on the streets of Phase 2A in the stead of Olde Forge Builders, Inc.
The North Newton Township Board of Supervisors requests a draw in the amount of
$35,579.85 from letter of credit D003651 (Phase 2A). The required draft is endosed. Please
see my correspondence from October 23, 2009 for the referenced letter of credit and applicable
amendment.
The township must hold an 18 month maintenance bond on the improvements following the
dedication of the streets. Therefore until such maintenance bond is received; the remaining
balances of the letters of credit should remain intact and amendments thereof be issued to the
beneficiary, North Newton Township. Please forward payment to: North Newton Township,
255 Ott Road, Shippensburg, PA 17257. Thank you for your timely assistance in this matter.
Best regards,
David R. Parthemore
Chairman
North Newton Township
Board of Supervisors
Enclosures
Cc: 01de Forge Builders - Newville, Inc. Craig Hench w/o attachments
Municipal Building 433 Oakville Road, Shippensburg, PA 17257
(717) 776-3409
www.nordmewtontowrmdiip.com
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
OLDE FORGE BUILDERS -
NEWVILLE, INC.
Plaintiff
V.
NORTH NEWTON TOWNSHIP
Defendant
CIVIL ACTION - EQUITY
NO. 2009 - CV -
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Peter J. Russo, hereby certify that I am on this day serving a copy of the foregoing
document upon the person (s) and in the manner indicated below:
Michael A. Scherer, Esquire
OSrien, Baric & Scherer
19 West South Street
Carlisle, PA 17013
VIA US MAIL POSTAGE PREPAID
VIA EMAIL - MScherer@OBSiaw.com
VIA FAX - (717) 249-5755
Peter J. Russo
Date: November Jr= 2009
0
rr ,LEI..
k4: _
Tk'C lti
2009 NOV -6 P ?-, 16
cullvi
478.5o Po A
C mssl
ea-S3158
OLDE FORGE BUILDERS -
NEWVILLE, INC.,
Plaintiff
vs.
NORTH NEWTON TOWNSHIP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 09-7697 CIVIL
IN RE: APPLICATION FOR PRELIMINARY INJUNCTION
ORDER
AND NOW, this / 0 - day of November, 2009, upon the application for a preliminary
injunction on motion of Plaintiff, and having then taken the matter under advisement, this
Honorable Court hereby orders that Defendant, North Newton Township, be hereby enjoined,
prohibited and restrained from drawing funds from Irrevocable Standby letter of Credit No.
D004009 and Irrevocable Standby Letter of Credit No. D003651 pursuant to the latest request
for a draw down made on or about October 28, 2009. This order is entered without prejudice to
the Defendant to seek prompt payment pursuant to a new request for draw down in the amount of
$77,184.35.
Hearing on the underlying complaint in equity in this case to be set by order of even date
herewith.
BY THE COURT,
./Peter Russo, Esquire
For the Plaintiff
?chael Scherer, Esquire
For the Defendant
Am
S mom. LLl -
//?? 11 o'?
?__
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
OLDE FORGE BUILDERS - CIVIL ACTION - EQUITY
NEWVILLE, INC.
Plaintiff
V. NO. 2009 -7697
NORTH NEWTON TOWNSHIP
Defendant JURY TRIAL DEMANDED
AFFIDAVIT OF SERVICE
L , l pct a/v 0 , being duly sworn according to law, that I am over 18 years
of age and not a pa y to the above-captioned action, served and made known to
??1? ,4 -5,C-' on the /p th day of ti60,6W&7,7 2009 at
a Complaint Attached to Preliminary Injunction to Restrain Defendant from
Drawing Under Letters of Credit and Motion for Emergency Special Relief described
below:
[ ] Personally delivered them into the hands of the person to be served
[ ] Adult family member with whom that person resides. Relationship is
[ Agent or person in charge of person's office or usual place of business
[ ] Other.
Description of Recipient
Sex: ? ? V"y?or Skin Color: allb 14 Hair Color: C''r /?C?'??€
Facial Hair: N1W Height (approx.): A-11,* Weight (approx.): /(-11147
Age: /''LSE 6-,Ps
Signature
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Cesar L. Buono, Notary Public
Camp Hill Boro, Cumberland County
My Commission Expires Feb, 14, 2012
Member, Pennsylvania Aeaocletion of Notaries
Title Badge/ID # (if any)
Address: 5006 E. Trindle Road, Suite 100
Mechanicsburg, PA 17050
Phone Number: (717) 591-1755
2 E, 9 it , t
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
R Thomas Kline
Sheriff
Ronny R Anderson
Chief Deputy
Jody S Smith
Civil Process Sergeant
Edward L Schorpp
Solicitor
?exty ci ?uitrb???
OFFFlc r,:r '-- "ERIFF
Fly ,--7-,F ICE _
I?,.?s??J IARY
OF THE
2009 NOV 24 A 8* 3?
44?, 1
ENNI
Olde Forge Builders, Inc.
Case Number
vs.
North Newton Township 2009-7697
SHERIFF'S RETURN OF SERVICE
11/18/2009 11:50 AM - Jason Vioral, Corporal, who being duly sworn according to law, states that on November 18,
2009 at 1150 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: North Newton Township, by making known unto Dave Parthemore, Board Supervisor at
433 Oakville Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time
handing to him personally the said true and correct copy of the same.
SHERIFF COST: $46.44
November 19, 2009
SO ANSWERS,
R THOMAS KLINE, SHERIFF
Co al
ic;. GountySuite Sherrt7, Teleosott. Inc.
05126-00236 26/1405879.v1
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
BY: John P. Gonzales, Esquire
ID# 71265
620 Freedom Business Center, Suite 300
King of Prussia, PA 19406
(610) 354.8264
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Olde Forge Builders- Newville, Inc.,
Plaintiff
v.
North Newton Township
Defendant
Civil Action -Equity
No. 09-7697 Civil
Jury Trial Demanded
CERTIFICATE OF SERVICE
I, JOHN P. GONZALES, ESQUIRE, being duly sworn according to law, hereby certify
that my Entry of Appearance on behalf of Defendant, North Newton Township, was forwarded
to all counsel of record on November 24, 2009 and was sent via first class mail, postage prepaid
to the last lrnown address of other parties or their representatives.
Peter J. Russo, Esquire
Law Offices of Peter J. Russo, P.C.
5006 East Trindle Road
Suite 100
Mechanicsburg, PA 17050
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
BY:
JO AL ,ESQUIRE
Attorney for Defendant
2Q~9 ~~u~ 30 F~~'i :~~ ~~
05126-00236 26/1405879.v1
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
BY: John P. Gonzales, Esquire
ID# 71265
620 Freedom Business Center, Suite 300
King of Prussia, PA 19406
(610) 354.8264
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Olde Forge Builders- Newville, Inc.,
Plaintiff
Civil Action -Equity
v.
North Newton Township
Defendant
No. 09-7697 Civil
Jury Trial Demanded
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of North Newtown Township, Defendant, in the
above-referenced matter.
BY:
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
JOHONZALES, ESQUIRE
Attorney for Defendant
DATE: l 1 ~~ ~ ~/
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