HomeMy WebLinkAbout01-1833NORTH NEWTON TOWNSHIP,
Plaintiff
VS,
HOPEWELL TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
· NO. 2001-
: IN EQUITY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by an 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 LAVVYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS.
HOPEWELL TOWNSHIP,
Defendant
: CIVIL ACTION - LAW
· NO. 2001-
· IN EQUITY
COMPLAINT
COUNT I
1. Plaintiff is North Newton Township, a township of the second class
located in Cumberland County, with offices at 255 Oft Road, Shippensburg, PA 17257-
9513.
2. Defendant is Hopewell Township, a township of the second class located
in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240.
3. A landfill is located in both of the townships. The location is set forth in
certain documents and surveys that are part of the records maintained by the
Pennsylvania Department of Environmental Protection (DEP). Plaintiff incorporates the
relevant portions of those documents herein.
4. Over the past several years the landfill had been in the process of
expanding the operations in an application referred to as the "Newton Expansion",
5. Over those years the landfill had various owners and at the present time it
is owned and operated by Waste Systems International, Inc., (WSI) with offices at 420
Bedford Street, Lexington MA 02420.
6. Plaintiff had requested a determination by DEP, as part of the expansion
process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53 P.S.
Section 4000.1301 would be allocated between the townships.
7. Plaintiff has yet to receive a written response from DEP to its request.
Depending on the allocation determination by DEP the Plaintiff or Defendant may elect
to proceed with litigation before the Environmental Hearing Board of Pennsylvania
(EHB) and the appellate courts.
8. If the DEP allocates the tipping fee as to the entire permitted area,
despite the closure of the disposal areas in Hopewell Township, and that determination
is upheld by litigation before the EHB and through the appeal process, then North
Newton is entitled to a proportionate share of the tipping revenues received by
Hopewell Township from July 1, 1998 when the Newton Expansion was permitted.
9. The Plaintiff believes that it is entitled to approximately half of the
aforesaid tipping fees if the entire permitted area is considered and approximately
eighty per cent if only the expansion area is considered.
WHEREFORE, Plaintiff respectfully requests that the Court;
A. determine what the allocation amount is, based upon the final
determination, and calculate the amount the Defendant should pay to Plaintiff from July
1,1998 to the time of hearing; and
B. provide such other relief as is just and equitable.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
By:
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
. II
I verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to
unsworn falsification to authorities.
Dated:
0
0
0
0
I
VS.
HOPEWELL TOWNSHIP,
Defendant
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PI,EAS OF
Plaintiff : CUMBERLAND COUNTY, PENNA.
:
: CIVIL ACTION - LAW
:
: NO. 2001 = 1833
: IN EQUITY
DEFENDANT'S PRELIMINARY OBJECTION TO
PLAINTIFF'S COMPLAINT
Defendant, Hopewell Township, by its undersigned attorney, preliminarily objects
to plaintiff's complaint pursuant to Pa. R.C.P. 1028(a)(4) as follows:
DEMURRER TO PLAINTIFF'S COMPLAINT
1. Plaintiffand defendant are both Pennsylvania townships of the second class.
Plaintiff's complaint generally deals with matters concerning a landfill, portions of which
are located in each of the townships, since a recent expansion of the landfill area across
their common border from defendant township into plalntifftownship. A copy of
plaintiff's complaint is attached as Exhibit "A".
2. In paragraphs 6 to 8, plaintiff's complaint alleges that it has requested ofDEP a
determination as to how the host municipality benefit fee (tipping fee) should be allocated
between plaintiff and defendant, that it has not as yet received any written response from
DEP to its request, and that, depending on how DEP does respond to plaintiff's request,
defendant will be entitled to a share of tipping fee revenues already received by defendant
since July 1, 1998.
3. Plaintiffis asking this Court to determine its rights in anticipation of an event
(DEP's response to plaintiff's request for an allocation of host municipality benefit fees
between plalntiffand defendant) which has not occurred, and which may never occur.
4. In the absence of any determination by DEP as requested by plaintiff, no actual
or justiciable controversy and no cause of action exists or is imminent between the parties.
5. The courts of this Commonwealth do not possess judicial power to determine
anticipatory causes of action or to decide cases that have not as yet arisen between parties
6. Plaintiff's complaint sets out a cause of action which is anticipatory and asks this
Court to decide a case between the plaintiffand defendant which has not as yet arisen.
7. Plaintiff's complaint alleges no facts as to why July 1, 1998, is the date after
which plalntiffis entitled to a share of tipping fee revenues already received by defendant.
8. Plaintiff's complaint is based upon its claim to a proportionate share of the host
municipality benefit fee (tipping fee) mandated by the Municipal Waste Plauning,
Recycling and Waste Reduction Act, 53 P.S. sections 4000.1301 - 4000.1305 (hereinafter,
the "Act").
9. The operator of the landfill which lies in portions of each of plaintifftownship
and defendant township is Waste Systems International, Inc. (hereinafter, "WSI").
10. Section 4000.1301 of the Act imposes liability for payment of the host
municipality benefit fee (tipping fee) upon the operator of the landfill, in this case, WSI.
A copy of section 4000.1301 is attached as Exhibit "B".
11. Plaintiff has alleged no facts in its complaint which would justify transferring
the liability for payment of the host municipality benefit fee (tipping fee) from WSI, the
operator of the landfill, to defendant township.
12. No reason appears in the complaint why defendant should be liable to pay to
plaintiffany portion of the host municipality benefit fee (tipping fee) to which plaintiffmay
eventually be entitled.
13. Plaintiff's complaint fails to state a claim upon which relief may be granted.
WI-IEREFORE, defendant respectfully requests that this Court sustain defendant's
preliminary objection by way of demurrer and dismiss plaint'flY's complaint.
Dated: April,~ , 2001
Sally J. ~i~der, Attorney for Defendant,
Hopew~ Township
701 East King Street
Shippensburg, PA 17257
Telephone (717) 532-9476.
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
VS.
: CIVIL ACTION - LAW
HOPEWELL TOWNSHIP,
Defendant
: NO. 2004-
: IN EQUITY
COMPLAINT
COUNT I
1. Plaintiff is North Newton Township, a township of the second class
located in Cumberland County, with offices at 255 Ott Road, Shippensburg, PA 17257-
9513.
2. Defendant is Hopewell Township, a township cf the second class located
in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240.
3. A landfill is located in both of the townships. The location is set forth in
certain documents and surveys that are part of the records maintained by the
Pennsylvania Department of Environmental Protection (DEP), Plaintiff incorporates the
relevaht portions of those documents herein.
4. Over the past several years the landfill had been in the process of
expanding the operations in an application referred to as the "Newton Expansion".
5. Over those years the landfill had various owners and at the present time it
is owned and operated by Waste Systems International, Inc., (WSI) with offices at 420
Bedford Street, Lexington MA 02420,
6. Plaintiff had requested a determination by DEP, as part of the expansion
process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53
Section 4000.1301 would be allocated between the townships.
7. Plaintiff has yet to receive a written response from DEP to its request.
Depending on the allocation determination by DEP the Plaintiff or Defendant may elect
to proceed with litigation before the Environmental Hearing Board of Pennsylvania
(EHB) and the appellate courts.
8. If the DEP allocates the tipping fee as to the entire permitted area,
despite the closure of the disposal areas in Hopewell Township, and that determination
is upheld by litigation before the EHB and through the appeal process, then North
Newton is entitled to a proportionate share of the tipping revenues received by
Hopewell Township from July 1, 1998 when the Newton Expansion was permitted.
9. The Plaintiff believes that it is entitled to approximately half of the
aforesaid tipping f(~bs if the entire permitted area is considered and approximately
~,,~,~,~.~:ll~,~i.ghty. per cent if only the expansion area is considered.
WHEREFORE, Plaintiff respectfully requests that the Court;
A, determine what the allocation amount is, based upon the final
determination, and calculate the amount the Defendant should pay to Plaintiff from July
1,1998 to the time of headng; and
B. 3rovide such other relief as is just and equitable.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
I verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relatingto
unsworn falsification to authorities.
Dated:
53 P,S. § 4000.1301
_IUNICIPAL '& ~UASI-MUN, CORB.
CHAPTER 13..HO~ MLNICIPALITY BENEFIT FEE.
§ 4000.1301. Hmst mlmidimlit~efit fee
(8).lmpo~itio.,--There is imposed & host munkfppl~y benefit fee upon the 0 .pez?o. r
of each .m?idpal write hndf~ or resource recover~ fac~' tht has ~ valid .pe~,...t'on
effective d~e of t~f~ act. The tee shall be paid t~ the hos~ muntcipsh'tO'., If. t~e hos~
the percentage of the per ed
(b) Amoun~The fee tm $! per to~ Of weighed ~'~ °r,$1: pe~':~ e~bic
yards of volume-meaaured 8olid waste for all solid waste received at &landfill or facili~.
A~y amounts p~i b~. an operator to '~ host munidpal~t~ 'pursu~n~' to & preexis~nS
qr~ment shall serve as a credit a~inst the' fee~omount imlmsed by this section.
Ce) Count~ option&--Nothins in this aat sh~n preven~ & hose county from ne~otiat~n~
& fee or fee in a different form, if the host county and the operator of the municipal
waste Llpflf111 or r~_~trce reeovery igtee in writing. Any eoun~ which has negotilff~d a
fee as of the effective chte of this act may reqmre 'that the' fee be confinuecL
1988, July 28, P.L. 5~6, No. 101, § 1R01, effective in 60 ~ .,
I~S p.q. i 6018.101 ct seq. "-'
l Section 4000.1302 of this title. ;~" ,',,*',', ,.
I Section 6901 et r~q. of this title. ;' ""' ~-'-
Umted States Supreme Court ..' '
Solkl wo.~ d~al, discfimhlafioa in favor of S.~. 1677, $11 .U~. 3~3, 1:28 L.N.~J.~ 399, o~
local bu~ncssc~ sec C & A Carbonc, Inc. v. rcmand617N.¥.S~:148~2~SA.D~d612.
Town of ~lsrkstOWll, N.Yn U~.N.Y.I~4, Il4 ..... ::.,..,:, ]~ -.
Notes of Deeisions ,:.
Apportiommmt 3 al of York, Incv. Dcpanmcm of Environmental
Conf~uc~oe find 8ppJkaflee 2 -, Rc~ourcc~ 615 A.2d 824, :IS0,
Vdidila, orlaz 1 ,.. : .Cmwl~h.1992. ~,.~'~ ~ ,._.'~ .',~'-.~_.~,'
Waxtc di~ tax was not exccsstvc cron
thoush it generated ~catcr rv-v~n~ rhsn ~
8cnera~d by host municipalit~ fc~. Grand C..gnf
Sanitary Landfill Inc. v. Township of Plainfield,
589 A.2d 767, 138 Pa. Cmwlth. 640, Cmwlth.199L
2. C~nm~ction and application
· 'r~,~ n,'-,',~rrm~,nt of Environmental Resources
Fccs impmcd by Municipal Wa~e ~lannin&
Recycling and Wasm Rcduc~'Ac~ ate' ' ~,~__~d
on MI solid wasm cn~cring landfill; i~cludin8
wasm tram~crred from one landfdl m anoiAcr ~s
pail of volunLary dcanup opcragen.; Med~m
Trash Removal of York, Inc. v. Department,of
EAvirnomcnud p__,r~.~e~ 61~ ~, S24,. ~. pa
In allocatin8 hoea munlcipalit~ bcncfi~ fcc with
respect to landfill loca[cd within Lwo Im~ muAicl-
(,
,(
ope
.~id
SHERIFF'S RETURN
CASE NO: 2001-01833 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLJkND
NORTH NEWTON TOWNSHIP
VS
HOPEWELL TOWNSHIP
- REGULAR
BRIAN BARRICK ,
Cumberland County,Pennsylvania,
says, the within COMPLAINT & NOTICE
HOPEWELL TOWNSHIP
DEFENDANT , at 0013:05 HOURS,
at 14 HOOVER DRIVE
NEWBURG, PA 17240
LAVON BODEN (TWP. SECRETARY)
a true and attested copy of COMPLAINT & NOTICE
IN EQUITY
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
on the 2nd day of ~pril
by handing to
the
, 2001
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 12.40
Affidavit .00
Surcharge 10.00
.00
40.40
Sworn and Subscribed to before
me this ~y~- day of
~.~ ~'3/ < A.D.
t~r~thonot ary v ~
So Answers:
R. Thomas Kline
04/03/2001
O'BRIEN, BARRICK & SCHER~R~
By:
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
· NO. 2001-
: IN EQUITY
MOTION TO AMEND
1. Movant is Robert L. O'Brien, Esquire, attorney for the Plaintiff.
2. Respondent is Hopeweil Township, the Defendant, by and through the
Township Supervisors who are represented by Sally J. Winder, Esquire.
3. Subsequent to the filing of the Complaint in this matter, the Pennsylvania
Department of Environmental Protection issued a determination that the Host Municipal
Benefit Fee should be allocated 54% to Hopewell and 46% to North Newton. A copy of
that communication is attached hereto.
4. North Newton Township is satisfied with the allocation determination as
the figure had been worked out between the litigants with the assistance of the
engineer for the townships.
5. Based on the monies received by Hopewell Township from the permit
date of July 1, 1998, the Plaintiff has calculated its claim for damages as follows:
A. 7/1/98 to 9/30/98- $43,659.74 with per diem interest of $6.24 from
4/20/01 to the date of payment. Said interest rate calculated at the
legal rate as are all subsequent calculations.
10/1/98 to 12131198- $28,850.99 with per diem of $4.17 from
4/20/01 to date of payment.
1/1/99 to 3/31/99- $23,009.12 with per diem of $3.37 from 4/20/01
to date of payment.
4/1/99 to 6/30/99- $36,296.93 with per diem of $5.39 from 4/20/01
to date of payment.
7/1/99 to 9~30~99- $33,624 with per diem of $5.07 from 4/20/01 to
date of payment.
10/1/99 to 12131199- $38,185.28 with per diem of $5.83 from
4120101 to date of payment.
1/1/00 to 3/31/00- $36,732.54 with per diem of $5.69 from 4/20/01
to date of payment.
4/1/00 to 6~30~00- $35,656.61 with per diem of $5.68 from 4/20/01
to date of payment.
7/1/00 to 9~30~00- $37,010.17 with per diem of $5.98 from 4/20/01
to date of payment.
1011100 to 12131100- $30,383.78 with per diem of $4.98 from
4/20/01 to date of payment.
Payments received after 4/1/01 to the extent the payment
represents North Newton Townships proportional share.
Wherefore, Movant respectfully requests that the Plaintiff, North Newton
Township, be granted leave of Court to file an amended Complaint in reference to the
allocation as determined by DEP and the damages as established by the funds
received in periodic payments by Hopewell Township.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
clientJnnt/amend.mot
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
Pennsylvania DePart_menthol Environme_ntal Protectio.n
909 Eimerton Avenue
Barrlsburg, Pennsylvania 17110
March 28, 2001
Southcentral Regional O~ce
(717) 705 -4706
FAX (717-705-4930
Mr. Jim Stipe, General Manager
Community Refuse Service, Inc.
142 Vaughn Road
Shippensburg, Pa 17257
Re;
Host Municipal Benefit Fee
Permit No. 100945
Cumberland County Landfill
Hopewell and North Newton 'fownships
~Dear Mr. Stipe:
There has been some confusion relative to the payment of host fees when landfdJs are located in
multiple muni*ipalities.
Section 1'3'01 0fAct 101, The Municipal Waste Planning, Recycling, and Waste Reduction Act,.
is clea'~ abouFthis issue as it states: "If the landfill or facility is located within more than one host
municJpalitys tl~e f~ shall be apportioned among them ac. coMing to the percentage of the permitted
area Iocatedin each municipality." Our understanding is that there is a 54/46% split in perroJ~ted
area between Hopewell and North Newton Townships If this ratio is in¢orr~t, please advise the
Department. Both Townships should be paid aexordingly.
If you hav~ any questions regarding this, please do not hesitate to contact us at the above number.
Sincerely, ' ~
Cumberland County Solid Waste Authority (To.m lmPhon$)
Facilities Specialist
Waste Management
/
An tqual C~o~uni~y I~m~ye, www.dep.state .pa.us Printe¢i on Ret'w~ ab~, r~
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Pl~-~e l i st th~ within rotter for the next ar~j~ent Court.
CAPTION OF CASE
(entire caption must be stated in b,]])
( p1 a~ ntiff )
( Defe~4ant )
19
1. State matter to be argued (i.e., pla{ntiff's motion for new trial, defendant's
d~ma~z~c to cc~pl~int, etc.):
2. Identify counsel who w4 1 1 argue case:
(a) for pi a~ ntJ-ff: Address:
(b, for defe~nt:
3. I ~ll ~t~ all ~i~
~ l~t~ for ~t.
4. Argu~nt ~ Date:
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
PlainiiK : CUMBERLAND COUNTY, PENNA.
vs. : CIVIL ACTION - LAW
:
HOPEWELL TOWNSHIP, : NO. 2001 - 1833
Defendant : IN EQUITY
ANSWER TO MOTION TO AMEND
Comes now, the Defendant, Hopewell Township, by and through its Solicitor,
Sally J. Winder, and does Answer the Motion to Amend as follows:
1-2. Paragraphs 1 and 2 of the Motion are admitted.
3. Denied. On the contrary, the letter of March 28, 2001, from Don
Korzeniewski, of the Depmt~ent of Environmental Protection does not constitute a
determination, or ~fling, as to allocation of the host municipality benefit fee. It is a
request for affirmation from the landfill operator that the fee is to be split according to the
percentages stated in the letter.
4. Admitted in part and denied in part. It is admitted that North Newton
Township is satisfied with a 54% to Hopewell Township, 46% to North Newton
Township allocation of the host municipality benefit fee. Denied that this figuxe was
"worked out between the litigants with the assistance of the engineer for the townships."
On the contrary, calculations as to percentage of permitted acreage in each township
were obtained from the survey plans submitted to the Department of Environmental
Protection. The allocation percentages referred to by Plaintiff are merely area
calculations.
5. Denied. On the contrary, the permit date was not July 1, 1998. As to the
calculations of damages, Plalntiffhas not set forth any legal basis or theory for finding
that Respondent Hopewell Township is liable for damages in any amount, or that
Hopewell Township has any duty or obligation for payment of monies to North Newton
Township. Further. Movant North Newton Township has set forth no basis for its claim
of interest at the legal rote.
WHEREFORE, North Newton Township should not be granted leave to file an
Amended Complaint in the form set forth in its Motion to Amend.
Respectfully submitted,
Attorney for Defendant
701 East King Street
Shippensburg, PA 17257
VERIFICATION
I verify that the statements made in this angwer to motion are true and correct to the best
of my personal knowledge and belief. I understand that false statements herein are made subject
to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities.
Date: ~//o~ Ol .S~L~y. WiNDE~~~'~
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWEL/TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2001-1833
: IN EQUITY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or bY an 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.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2001-1833
:IN EQUITY
FIRST AMENDED COMPLAINT
1. Plaintiff is North Newton Township, a township of the second class
located in Cumberland County, with offices at 255 Off Road, Shippensburg, PA 17257-
9513.
2. Defendant is Hopewell Township, a township of the second class located
in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240.
3. A landfill is located in both of the townships. The location is set forth in
certain documents and surveys that are part of the records maintained by the
Pennsylvania Department of Environmental Protection (DEP). Plaintiff incorporates the
relevant portions of those documents herein.
4. Over the past several years the landfill had been in the process of
expanding the operations in an application referred to as the "Newton Expansion".
5. Over those years the landfill had various owners and at the present time it
is owned and operated by Waste Systems International, Inc., (WSI) with offices at 420
Bedford Street, Lexington MA 02420.
6. Plaintiff had requested a determination by DEP, as part of the expansion
process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53 P.S.
Section 4000.1301 would be allocated between the townships.
7. The permit process is lengthy and the landfill changed ownership several
times during the permitting process. At one point and time the state put a moratorium
on landfill permits and subsequent to the lifting of that moratorium the permits that were
in the pipeline were moved forward. Finally on July 31, 1998 the Newton expansion
permit was granted to the landfill owner.
8. In the process of anticipating the grant of the permit, North Newton
Township contacted DEP by letters and by telephone calls requesting their assistance
in determining the allocation between the townships of the $1.00 municipal host fee
required for each ton of waste deposited. Despite these requests, the matter was
ignored by DEP and the landfill owner continued to pay the $1.00 per ton host
municipal fee solely to Hopewell Township.
9. The Defendant never requested that the DEP issue a determination in
reference to the division of the municipal host fee.
10. Subsequent to the filing of the Complaint in this matter, the Pennsylvania
Department of Environmental Protection issued a determination that the Host Municipal
Benefit Fee should be allocated 54% to Hopewell and 46% to North Newton. A copy of
that communication is attached hereto.
11. A concern in identifying this allocation was the actual location of the
dividing line of the townships. Both townships shared the same engineering firm as
their consultant and requested that the engineers conduct an investigation and make
recommendations in reference to the location of the dividing line and the percentage
allocation of the permitted area in each township.
12. As early as 1996 the supervisors of the Townships began a series of
meetings in consideration of the pending permit. In August 1996, Governor Ridge
issued an executive order halting DEP's review of all expansion applications. Governor
Ridge noted the importance of the local government involvement in the permitting
process.
13. In 1997 the Townships, in conjunction with the Solid Waste Authority of
Cumberland County, commissioned Gannett Fleming, Inc., to conduct an independent
engineering review of the expansion permit. In August 1997, a written report was
submitted to the Townships.
14. The Townships continued to be advised and participated in the
application process which culminated in the grant of the expansion permit on July 31,
1998. From that date until April 2001, the Defendant received all of the host municipal
fee.
15. Based on the monies received by Hopewell Township from the permit
date of July 31, 1998, the Plaintiff has calculated its claim for damages as follows:
A. 7131198 to 9/30/98- $33,416.92 with per diem interest of $4.78 from
4/20/01 to the date of payment. Said interest rate calculated at the
legal rate as are all subsequent calculations.
B. 10/1/98 to 12131198- $28,850.99 with per diem of $4.17 from
4/20/01 to date of payment.
C. 1/1/99 to 3/31/99- $23,009.12 with per diem of $3.37 from 4/20/01
to date of payment.
D. 4/1/99 to 6/30/99- $36,296.93 with per diem of $5.39 from 4/20/01
to date of payment.
E. 7/1/99 to 9~30~99- $33,624 with per diem of $5.07 from 4/20/01 to
date of payment.
F. 10/1/99 to 12/31/99- $38,185.28 with per diem of $5.83 from
4/20/01 to date of payment.
G. 1/1/00 to 3/31/00- $36,732.54 with per diem of $5.69 from 4/20/01
to date of payment.
H. 4/1/00 to 6~30~00- $35,656.61 with per diem of $5.68 from 4/20/01
to date of payment.
7/1/00 to 9~30~00- $37,010.17 with per diem of $5.98 from 4/20/01
to date of payment.
J. 10/1/00 to 12/31/00- $30,383.78 with per diem of $4.98 from
4/20/01 to date of payment.
K. Payments received after 4/1/01 to the extent the payment
represents North Newton Townships proportional share.
TOTAL: $333,166.34 with per diem from April 20, 2001 at $50.94
COUNT I
BREACH OF FIDUCIARY DUTY
16. The Plaintiff incorporates paragraphs 1 thru 15 herein.
17. At all times relevant hereto the Defendant stood in a fiduciary capacity to
the Plaintiff. The statutory authority of Pennsylvania states the following:
53 P.S. § 4000.1303. Collection and Enforcement of fee.
Constructive Trust:
All host municipality benefit fees collected by an operator and held by such
operator prior to payment to the host municipality shall constitute a trust fund for the
host municipality, and such trust shall be enforceable against such operator, its
representatives and any person receiving any part of such fund without
consideration or with knowledge that the operator is committing a breach of the trust ....
(emphasis added)
18. The parties had thirty days from the DEP determination of March 28,
2001, in reference to the allocation of the host municipal benefit fee, within which to
appeal the determination. Neither party has appealed.
19. The Defendant, in a deposition taken of it's supervisors, on June 27,
2001, stated that it was satisfied with the allocation as determined by DEP.
18. Despite repeated requests from the Plaintiff to the Defendant to deliver
the monies it has received and to which the Plaintiff is legally entitled, the Defendant
has refused to do so.
19. The failure of the Defendant to pay over the sum due to the Plaintiff and
to which it is legally entitled, in conjunction with the Defendant's statutory fiduciary
obligations, constitutes outrageous conduct and is in reckless indifference of the
Plaintiff's rights and the Defendant's obligations.
WHEREFORE, Plaintiff respectfully requests that the Court;
A. Order and direct that the Defendant pay the sum of $333,166.34
and per diem at the legal rate of $50.94; and
Order and direct the Defendant to pay Plaintiff's attorney's fees
and costs; and
C.
Order and direct the Defendant to pay punitive damages to the
Plaintiff for its conduct; and
D. Provide such other relief as is just and equitable.
COUNT II
ACTION FOR MONEY HAD AND RECEIVED
20. The Plaintiff incorporates paragraphs 1 thru 19 herein.
21. The Defendant, non-tortiously and without actual notice of the exact
amount due the Plaintiff, albeit with notice that the Plaintiff had a valid and enforceable
claim for some portion of the proceeds, received host municipal benefit fee payments
from the landfill.
22. The Defendant gave no consideration for the receipt of the Plaintiff's
funds.
23. Despite demand for payment of the funds received, the Defendant has
refused to pay the money had and received.
WHEREFORE, Plaintiff respectfully requests that the Court;
A. Order and direct that the Defendant pay the sum of $333,166.34
and per diem at the legal rate of $50.94; and
and costs; and
Order and direct the Defendant to pay Plaintiff's attorney's fees
C. Order and direct the Defendant to pay punitive damages to the
Plaintiff for its conduct; and
D. Provide such other relief as is just and equitable.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
rob/nnt/amend.com
I verify that the statements made in the foregoing First Amended Complaint are
true and correct to the best of my knowledge, information and belief. I understand that
false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904,
relating to unsworn falsification to authorities.
Pennsylvania De. part_men[of Environmental Protection
9o9 J lmeflon Avenue
Herrbburg, l)ennsylvani& 17110
$outhcentral Regional Office
(717) 705-4706
FAX (717-'/05-4930
Mr. Jim Stipe, Genet~l Manager
Community Refuse Sen~ce, Inc..
142 Vauglm Road
S~ppensburg, Pa 17257
~Dear Mt. Stipe:
Re: Host Municipal Benefit Fee
Permit lqo. 100945
Cumberland County Landfill
Hopewell and North Newton ~'ownships
There has been some confusion relative to the payment of host fees when lancLRlls are located in
multlple mun~p~lities.
Section t3~Ol <~f Act 101, The Municipal Waste Planning, Recycling, and Waste Reduction Act,
ia ~ea~ about.this iasu¢ as it states: "Ir'the land611 or facility is located within more than one host
municipality~ tim ~ shall be apportio~ct amon8 t. hem according to ~ percentage of~e pemt~ted
area located'in'each municipality." Our understa~ling is that there is a 54146% split in permitted
~'ea between HopewelJ ~nd North Newton TownsMps ]/'this nttio is incorm~t, please advise the
Department. Both Townships should be paid accordingly.
If'you have any questions regarding this, please do not hesitate to contact us at the above number.
Sincerely,
Don Korzeni~sk~
Facilities Specialist
Waste Management
Cumberland County Solid Waste Authority (To~ lmPbona)
U~,,~L L.':..:
www. dep. state.pa.us
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(MUSt be typewritten and su~uitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please 1/st the wit_kin matter for the next Arc3a~--nt Court.
CAPTION OF CASE
(entire caption must be stated in ~ll)
NORTH NEWTON TOWNSHIP,
( plai ntiff )
HOPEWELL TOWNSHIP,
( Defer~ant )
No. 01833 Civil Term ~ 2001
State matter to be argued (i.e., plaintiff's motion for new trla], defe/~lant's
d~urrer to cu,'%~]aint, etc. ):
Plaintiff's Motion To Amend
2. Identify counsel who w~ll. argue case:
(a) for plaintiff:
Ac]dress:
(b) for defer~ant:
A~dr~ss:
Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, Pennsylvania 17013
Sally J. Winder, Esquire
701 East King Street
Shippensburg, Pennsylvania 17257
3. I w~ 11 notify al 1 parties in writing within t~ days that this case has
been 1 i-~ted for argtinant.
4. /~t Court Date: July 25, 2001
June 28, 2001
Attorney for Plaintiff
NORTH NEWTON TOWNSHIP,
PLAINTIFF
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
HOPEWELL TOWNSHIP,
DEFENDANT
· 01-1833 EQUITY
BEFORE BAYLEY, J. AND OLER. JR.. J.
ORDER OF COURT
AND NOW, this'~ day of July, 2001, IT IS ORDERED:
(1) The preliminary objections of defendant to plaintiff's complaint, ARE
DISMISSED.
(2) Plaintiff's motion to amend its complaint, IS GRANTED.
Robert O'Brien, Esquire
For Plaintiff
Sally Winder, Esquire
For Defendant
:saa
HOPEW-ELL TOWNSHIP,
Defendant
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION
:
: NO. 2001-1833
: IN EQUITY
DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
Defendant Hopewell Township, by its undersigned counsel, preliminarily objects
to plaintiffs first amended complaint as follows:
PRELIMINARY OBJECTION RAISING FAILURE TO
CONFORM TO PA. ILC.P. 1019
1. Plaintiffhas filed a complaint against the defendant in this matter, alleging,
inter alia. damages as the result of defendant's wrongful retention of plaintiff s share of
the host municipality benefit fee paid by a landfill located within the boundaries of both
plaintiff and defendant.
2. Plaintiff has further alleged that damages are due and payable since July 31.
1998. the date on which DEP issued or granted a permit to the landfill for expansion into
plaintiff municipality.
3. The claim of plaintiff is based upon a writing, i.e.. the DEP permit allegedly
issued or granted on July 31. 1998.
4, Pm R.C.P. 1019(h) required that. where any claim is based on a writing, the
pleader shall attach a copy of the writing or the material part thereof, if the writing is
accessible to the pleader.
5. PlaintilTs first amended complaint does not have attached to it a copy of the
DEP permit, nor does it contain any averment that such writing is not accessible to it.
6. Under Pa- R.C.P. 1028(aX2). a party may preliminarily object by way of a
motion to strike offa pleading because of lack of conformity to rule of court.
7. The first amended complaint is defective under Rule 1019(h).
8. The first amended complaint being defective, it must be stricken.
WHEREFORE. defendant respectfully requests that plaintiWs first amended
complaint be stricken.
DEMURRER TO PARAGRAPH 19 AND CLAIM FOR RELIEF
IN COUNTS I AND II REQUESTING PUNITIVE DAMAGES
1. Defendant is a Pennsylvania municipality, a township of the second class.
2. PlaintifFs first amended complaint, in paragraph 19. avers as follows:
19. The failure of the Defendant to pay over the sum due to
the Plaintiff and to which it is legally entitle& in conjunction with
the Defendant's statutory fiduciary obligations, constitutes
outrageous conduct and is in reckless indifference of the
PlaintifFs rights and the Defendant's obligations.
3. In the prayer for relief in both Count I and Count II, plaintiff requests punitive
damages be awarded to it and against the defendant.
4. Under Pennsylvania lax,-, punitive or exemplary damages against the state or
any' municipality, thereof are void as against public policy, and cannot be awarded.
5. As such, plaintifFs paragraph 19 of the first amended complaint, and its
prayers for relief requesting punitive damages, are legally insufficient and should be
dismissed.
WHEREFORE. plaintiff respectfully requests that this Court sustain defendant's
preliminary objection by way of demurrer and dismiss paragraph 19 and the two punitive
damages prayers for relief in plaintifFs first amended complaint.
FIRST DEMURRER TO COUNT I AND COUNT II
OF PLAINTIFF'S FIRST AMENDED COMPLAINT
1. PlaintifFs first amended complaint alleges that defendant is liable to plaintiff
for 46% of the total host municipality benefit fee paid by the landfill from July 31. 1998.
through April 20,2001.
2. In support of its claim, plaintiff attached to its first amended complaint a letter.
dated March 28. 2001. from DEP to the landfill, stating, inter alia.
"Our understanding is that there is a 54/46% split in
permitted area between Hopewell and North Newton
Townships. If this ratio is incorrect, please advise the
Department. Both Townships should be paid accordingly."
(Emphasis supplied)
A copy of the letter is attached hereto as Exhibit "A".
3. The foregoing letter fxom DEP to the landfill, dated March 28. 2001. constitutes
an official act of an agency of the Commonwealth of Pennsylvania.
4. Under ordinary circumstances, official acts of Commonwealth agencies have
prospective force.
5. There is nothing contained in the leuer fi'om DEP to the landfill, dated March
28, 2001. nor are there any averments in the first amended complaint, to show that the
percentage split stated in the letter should be applied retroactively.
6. As such. plaintiff's first amended complaint is legally insufficient and should
be dismissed.
WHEREFORE, defendant respectfully requests that this Court sustain defendant's
preliminary objection by way of demurrer and dismiss plaintiff,'s first amended
complaint.
SECOND DEMURRER TO COUNT I AND COUNT H
OF PLAINTIFF'S FIRST AMENDED COMPLAINT
1. Plaintiff's first amended complaint alleges that defendant is liable to plaintiff
for a percentage of the total host municipality, benefit fee paid by the landfill since July
31. 1998.
2. In support of its claim, plalntiffalleges that defendant stood in a fiduciary
capacity to the plaintiff, under the statutory authority of 53 P.S. section 4000.1303. which
states that all host municipality benefit fees shall constitute a cons~-ucfive trust for the
host municipality, which may be enforceable against any person receiving any part of said
fund without consideration or with knowledge that the operator is committing a breach of
the trust.
3. Plaintiffquotes a portion of the statutory section, but left out the important last
sentence which states:
3
"However. any person receiving payment of lawful obligation
of the operator from such fund shall be presumed to have
received the same in good.faith and without any' knowledge
of the breach of trust. ' Portion of 53 P.S. section 4003.1303
4. A host municipality, by its vet)' existence as such. supplies the requisite
consideration for receipt of the host municipality benefit fee.
5. Plaintiff has alleged no facts which demonstrate that defendant had knowledge
that the landfill operator was committing a breach of the constructive trust when it paid
the host municipality fee to defendant.
6. Plaintiff has alleged no facts in its first amended complaint to overcome the
smtutot)' presumption that defendant received the entire host municipality benefit fee in
good faith and without knowledge of any breach of trust.
7. As such. plalntilTs first amended complaint is legally insufficient and should
be dismissed.
WHEREFORE. defendant respectfully requests that this Court sustain defendant
preliminary objection by way of demurrer and dismiss plaintiff's first amended
complaint.
Dated: September~ [ . 2001
S~y J. W~M r-Attorney for Defendant
Hopewell Township
701 East King Street
Shippensburg. PA 17257
telephone (717) 532-9476
4
~utheeotral Reg~nai CHTJee
PAX (717-705-4930
~i,r i~m ~tn,ne, iit,a~.rai MarmErr
341pi~A~,m~,, ~ 17257
Host Mumc~pai iBcnetii l'cc
Permit No. iOiP)4~
Cumberi~nd Coumy LandJiii
Honcwdl ard lqorf~, ?~a',~,1~n Towna~a
Section 'D'OI Of.n. ct lOl, '/'he Mnmcipai Waste Piannmg, Kecyciing, and Wasle kedu~on' ncr,
m~t~t~ ~ f~ ~1 h~ ~[oa~ ~¢}~ them ~r~ to ~ ~ oft~ ~
Sincexe, ly,
~'at~itttca Spccnaiis~
Waste Managmn~,t
www. dep.stat e, pa.us
CERTIFICATE OF SERVICE
I. Sally J. Winder. certify, that on this date. I served a true and correct copy of the
foregoing Preliminary Objections to First Amended Complaint upon the following
counsel of record, by depositing the same in the United States mail. postage prepaid.
addressed as follows:
ROBERT L. O'BRIEN. ESQUIRE
O'BRIEN. BARIC & SCHERER
12 WEST SOUTH STREET
CARLISLE PA 17013
Dated: September ~ [ .2001
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and su~tted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Arg~nent Court.
CAPTION OF CASE
(entir~ caption must be stated in D,I])
NORTH NEWTON TOWNSHIP,
HOPEWELL TOWNSHIP,
(Plaintiff)
( Defendant
No-2001-1833 Civil
State matter to be argued (i.e., plaintiff's motion for new trial, defermtant's
d~nu~z~_c to complaint, etc. ):
DEFENDANT'S PRELIMINARY OBJECTIONS
2. Identify counsel who w~ll argue case:
(a) for plaintiff: ROBERT L. O'BRIEN, ESQUIRE
~ess: O'BREEN, B~RIC & SCHERER
17 WEST SOUTH STREET
CARLISLE, PA 17013
(b) for deferment: SALLY J. WINDER, ESQUIRE
~a~ess: 701 EAST KING STREET
SHIPPENSBURG, PAolI7257
3. I wdl] notify all parties in writing within two d~ys that this case has
been listed for argument.
4. ~t Court Date:
D~ted: January 7, 2002
Attorney for Plaintiff
11.
North Newton Township
V
Hopewell Township
: 1N THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 01-1833 CIVIL TERM
ORDER OF COURT
AND NOW, February 13, 2002, by agreement of counsel, the above-captioned
matter is continued from the February 13, 2002 Argument Court list. Counsel is directed to relist
the case when ready.
//~ally J. Winder, Esquire
For the Defendant
Court Administrator
ld
By the Court,
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be ~itten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Pl~e ]ist the within matter for the next ArrJt~mt Court.
CAPTION OF CASE
(entir~ caption must be stated in b,1])
NORTH NEWTON TOWNSHIP,
( p1 ~ ntiff)
HOPEWELL TOWNSHIP,
( Defer~ant )
No. 01-1833 CivJ_l Term
State matter to be argued (i.e., plaintiff's motion for new tr~a], defendant's
d~nu.c~'e~ to c~>l~nt, etc. ):
Defendants Preliminary Objections
2. Identify counsel who w~ l I argue case:
(a) for plaintiff: Robert L. O'Brien, Esquire
;u%~ess: 17 West South Street
Carlisle, PA 17013
(b) for defev~mnt:
Sally J. Winder, Esquire
701 East King Street
Shippensburg, PA 17257
3. I w~ll notify all lkxrties in writingwithin two days that th/s case h~s
been li~ted for ar~3t~ro_nt.
4. Arc3u~-nt Court Date: May 22, 2002
Dated: April 3, 2002
Attorney f~r Plaintiff
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-1833 CIVIL
CIVILACTION-LAW
CIVIL ACTION - LAW
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO FIRST
AMENDED COMPLAINT OF PLAINTIFF
BEFORE BAYLEY, J.
ORDER
AND NOW, this 19th day of Jtme, 2002, IT IS ORDERED:
I. Plaintiff's claim for punitive damages IS DISMISSED.
II. All other preliminary objections of de£endant to the First Amended Complaint of
Plaintiff, ARE DENIED.
Robert L. O'Brien, Esquire
For the Plaintiff
Sally J. Winder, Esquire
For the Defendant
Edgar 1JT. B~yley, ~
:rim
JUL ]52002
PRAECIPE FOR LISTING CASE FOR TRIAL
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the following case:
for JURY trial at the next term of civil court.
(X) for trial without a jury.
North Newton Township :
Plaintiff : (X)
: ( )
V. : ( )
Hopewel 1 Township :
Defendant :
Civil Action - Equity
Appeal From Arbitration
(other)
The trial list will be called on
8/13/0~ and
Trials commence on 9/9/02
Pretrials will be held on 8/21/02
(Briefs are due 5 days before
pretrials)
(The party listing this case for
trial shall provide forthwith a copy
of the praecipe to all counsel,
pursuant to local Rule 214.1.)
No. 1833 Civil/ Equity
Indicate the attorney who will try case for the party,S%
praeczpe: Robert L. 0 Brzen, Esquire
Indicate trzal counsel for other part~es zf known:
. ,
Sally J. W~nder, Esq~re
This case is ready for trial.
Print Name: Robert L. O'Brien
Date: 7/'T--IO~ Attorney For: Plaintiff
PRAECIPE FOR LISTING CASE FOR TRIAL
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the following case:
for JURY trial at the next term of civil court.
(X) for trial without a jury.
North Newton Township :
Plaintiff : (X)
v. : (
Hopewell Township
Defendant :
Civil Action - Equity
Appeal From Arbitration
(other)
The trial list will be called on
8/13/02 and
Trials commence on ~/9/02
Pretrials will be held on 8/21/02
(Briefs are due 5 days before
pretrials)
(The party listing this case for
trial shall provide forthwith a copy
of the praecipe to all counsel,
pursuant to local Rule 214,1.)
No. 1833 Civil/ Equity
Indicate the attorney who will try case for the party
praecipe: Robert L. O'Brien. Esquire
Indicate trial counsel for other parties if known:
Sally J. Winder, Esquire
This case is ready for trial,
Date:
Signed:----~/~-~
Print Name: Robert L. O'Brien
Attorney For: Plaintiff
2001
who files
this
VIS,
HOPEWELL TOWNSHIP,
Defendant
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
..
: CIVIL ACTION
:
: NO. 2001-1833
: IN EQUITY
NOTICE TO PLEAD
TO: North Newton Township
YOU ARE HEREBY NOTIFIED TO PLEAD to the within New Matter
within twenty (20) days at, er service thereof. If you do not, a judgment of Non Pros
will be entered against you.
~ly J. ~inder, Attorney for Defendant,
Hopewell Township
997~'Molly Pitcher Highway
Shippensburg, PA 17257
telephone: (717) 532-9476
NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CIVIL ACTION
;
HOPEWELL TOWNSHIP, : NO. 2001 - 1833
Defendant : IN EQUITY
DEFENDANT'S ANSWER AND NEW MATTER TO
FIRST AMENDED COMPLAINT
COMES NOW, the defendant, Hopewell Township, by and through its
undersigned counsel, and answers the first amended complaint of plaintiff, North Newton
Township, as follows:
1. Admitted.
2. Admitted.
3. Admitted in part and denied in part. Defendant admits the averment that a
landfill is located in both townships. As to the remaining averments, after reasonable
investigation, defendant lacks knowledge and information sufficient to form a belief as to
their truth, and the same are therefore denied.
4. Admitted.
5. Admitted.
6.. Denied, as, after reasonable investigation, defendant lacks knowledge and
information sufficient to form a belief as to the troth of the averments of paragraph 6.
7. Admitted.
8. Denied, as, after reasonable investigation, defendant lacks knowledge and
information sufficient to form a belief as to the truth of the averments of paragraph 8.
9. Denied as stated. To the contrary, defendant was at all times aware that
division of the host municipality benefit fee between itself and plaintiff would begin upon
written approval by DEP of the permittee's certification of proper site construction of the
landfill expansion. When DEP gave that written approval in March, 2001, defendant
agreed that, henceforth, the host municipality benefit fee should be divided between itself
and plaintiff. Since that written approval in March, 2001, the host municipality benefit has
in fact been divided between defendant and plaintiff.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. Denied. To the contrary, plaintiff was not entitled to receive any portion of the
host municipality benefit fee before DEP written approval of the permittee's certification
of proper site construction, which approval was received by the permittee in March, 2001.
Beginning April 1, 2001, plaintiffwas entitled to receive a proportionate share of the host
municipality benefit fee, and, since that date, plaintiff has received the appropriate
proportionate share of the host municipality benefit fee.
COUNT 1
BREACH OF FIDUCIARY DUTY
16. Responses 1 through 15 above are incorporated as though set forth in their
entirety.
17. Denied. To the contrary, the statutory authority quoted in paragraph 17 is in
no way applicable to defendant. Defendant did not, does not, and will not, stand in a
fiduciary capacity to plaintiff with respect to any host municipality benefit fees received by
defendant. All host municipality benefit fees received by defendant were fees to which
defendant was legally entitled under applicable law and regulations.
18. Admitted.
19. Admitted.
18. (Plaintiffhas incorrectly numbered this paragraph of its first amended
complaint---defendant will keep the incorrect numbering in its response). Denied. To the
comrary, plaintiffwas not and is not entitled to any portion of the host municipality benefit
fees received by defendant, and defendant was not and is not under any legal obligation to
deliver any portion of its host municipality benefit fees to plaintiff.
19. (Plaintiff continues to follow an incorrect paragraph numbering---defendant
will keep this incorrect numbering in its response.) This particular paragraph of the first
amended complaint formed the basis of plaintiff's claim for an award of punitive damages.
By Order of Court dated June 19, 2001, the contents of which are hereby incorporated,
plaintiff's claim for punitive damages was DISMISSED. Defendant is therefore not
required to respond to the averments of this paragraph 19. To the extent that a response
may be required, defendant denies the averments of this paragraph. To the contrary,
defendant had no legal obligation to pay over any portion of the host municipality benefit
fees to plaintiff. Plaintiffhad no legal right to any portion of the host municipality benefit
fees received by defendant.
COUNT II
ACTION FOR MONEY HAD AND RECEIVED
20. (Plaintiffhas now returned to the correct numbering sequence of paragraphs).
Responses 1 through 19 (including the responses numbered 18 and 19 to the incorrect
numbering sequence of plalntitt) above are incorporated as though set forth in their
entirety.
21. Denied. To the contrary, defendant received from the landfill no monies which
belonged to the plaintifl~.
22. Denied. To the contrary, defendant received no funds which were plaintiff's.
Defendant gave the appropriate legal consideration under law and regulations for all of the
host municipality benefit fees received by it.
-3-
23. Admitted in part and denied in part. Defendant admits that it has refused to
pay any monies to plaintiff. The remaining averments of paragraph 23 are denied. To the
contrary, defendant had no legal obligation to pay any monies to plaintiff, and plaintiffhad
no legal right to receive any portion of the monies received by defendant.
NEW MATTER
24. Responses 1 through 23 (including the responses numbered 18 and 19 in the
incorrect numbering sequence of plaintiff) are incorporated as though set forth in their
entirety.
25. Plaintiff's right to receive a portion of the host municipality benefit fee was
contingent upon DEP giving its written approval to the certification of proper site
construction in accordance with the approved plans and specifications and conditions of
the expansion permit.
26. DEP gave its written approval (the provisions of which are incorporated
herein) of the certification of the proper site construction oftbe landfill expansion into
plaintiff in March, 2001.
27. No waste could be placed in the Newton Expansion until after DEP had
approved the certification of the proper site construction.
28. Plaintiff was not entitled to receive any payment of host municipality benefit
fee until after DEP approved the certification of proper site construction of the Newton
Expansion.
29. No waste was placed in the section of the landfill located within plaintiff's
boundaries until after March, 2001.
30. Plaintiffnever demanded from the permittee/landfill owner payment ora
portion of.the host municipality benefit fee until after the March, 2001, written approval
from DEP of certification of proper site construction of the Newton Expansion.
31. Plaintiffknew, or reasonably should have known, that its entitlement to any
portion of the host municipality benefit fee would only be triggered by the DEP written
approval of the certification of proper site construction of the Newton Expansion.
32. No construction of any landfill facility within plaintiff's borders ever began
until after grant of the permit modification on July 31, 1998, and approval of certification
of completion of the proper site construction within plaintiff's borders was not received
until March, 2001.
33. If defendant received any host municipality benefit fees to which plalntiffwas
entitled, defendant had no knowledge at the time it received them that it was committing a
breach of trust.
34. Plaintiffhas stated no claim against defendant upon which relief may be
granted.
WHEREFORE, defendant Hopewell Township respectfully requests that judgment
be entered in its favor and against pla'mtiffNorth Newton Township on both counts of the
first amended complaint.
er, Attorney for Defendant,
ownship
9974 Molly Pitcher Highway
Shippensburg, PA 17257
telephone (717) 532-9476
-5-
VERIFICATION
I am chairman of the Hopewell Township Board of Supervisors. I
verify that the facts set forth in the foregoing Answer and New Matter are
true and correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of 18
Pa. C.S. section 4904, relating to unswo~rn faksificgtion to authorities.
. yers
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2001- [~ ~'~
:IN EQUITY
RESPONSE TO NEW MATTER
24.
msponses.
25.
All allegations in the Amended Complaint are incorporated in the following
Attached hereto and incorporated herein is the permit document issued by
DEP on July 31, 1998. After investigation the Plaintiff believes that the Defendant is
referencing condition 10 on page 8 of the permit. This certification is part of the
process as each disposal cell is constructed, essentially a final inspection approval,
required as part of the permit and one of twenty-eight areas addressed in the permit.
The Plaintiff's right to receive the host benefit fee is controlled by the language of the
acts relating to the disposal of wastes. 35 Pa. C.S.A. Sec. 6018.503 provides: "Upon
approval of the application the department shall issue a permit for the operation of a
solid waste storage, treatment, processing or disposal facility or area..." Once the
permit is granted the Host Municipality Benefit Fee, 53 Pa. C.S.A. Sec. 4000.1301
mandates:
(a) Imposition-- There is imposed a host municipality benefit fee upon the operator of
each municipal waste landfill or resource recovery facility that has a valid permit on the
effective date of this act or receives a new permit or permit that results in
additional capacity from the department under the Solid Waste Management Act
after the effective date of this act. The fee shall be paid the host municipality. If the
host municipality owns or operates the landfill or facility, the fee shall not be imposed
for waste generated within said municipality. If the landfill or facility is located in more
than one host municipality, the fee shall be apportioned among them according to the
percentage of permitted area located in each municipality. (Emphasis added)
(b) Amount-- The fee is $1 per ton of weighed solid waste or $1 per three cubic yards
of volume-measured solid waste for all solid waste received at a landfill or facility."
26. The DEP issued its approval of the construction of a disposal pad
designated as" Newton Expansion- Pad N-1 "in Mamh, 2001. The averments in
response 25 are incorporated herein.
27. No waste could be placed in Pad N-1 until such time as the inspection and
certification by DEP was given, much as no waste could be disposed of in subsequently
constructed pads regardless of the location in Hopewell or North Newton.
28. Plaintiff incorporates the averments in response 25 herein and reiterates
that the right to the benefit fee initiated effective July 31, 1998.
29. The Plaintiff believes that a portion of a prior disposal area may have
included land in North Newton Township.
30. The Plaintiff never understood the Defendant would go to the lengths it
has to refuse to pay the funds due to Plaintiff and which were received in trust by the
Defendant.
31. The Plaintiff incorporates it's responses in paragraphs 24 through 30
herein.
32. Landfill activities were conducted in North Newton Township prior to and
subsequent to the July 31, 1998 permit date.
33.
herein.
32.
herein.
costs.
The Plaintiff incorporate it's responses in paragraphs 24 through 32
The Plaintiff incorporates it's responses in paragraphs 24 through 33
Wherefore, Plaintiff demands judgment against the Defendant, interest and
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
I.D. #28351
17 West South Street
Carlisle, Pennsylvania 17013
717-249-6873
rob/clients/N NT/response.new
I verify that the statements made in the foregoing Response To New Matter are true
and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to
unsworn falsification to authorities.
Dated: ~//~ 7.
o!
Southcentral Regional Office
Com Re use Se.ices, nl OS ',/I
t/a Cumberland County Landfill III _~t
Shippensburg, PA 17257 ..................
Re:
Dear ".:'i.~. 3r?.,'e:
Pennsylvania Department of Environmental Prote~:tion '
-:.PLEASE NOTE OIYR NEW'ADDRESS & PHONE NUMBE~?
909 Elmerton Avenue
Harrisburg, PA 17110-8200
d~Jt. a 1 lY.~8 717-705-4706
FAX - 717-705-4930
Major Permit Modification
Newton Expansion Municipal Waste Landfill
Cumberland County Landfill
Permit No, 100945
Hopewell & North Newton Twps., Cumberland County
I am pleased to enclose a permit modification approving the construction and operation of the
Newton Expansion Municipal Waste Landfill. It is issued in accordance with the Pennsylvania Solid
Waste Management Act, Act 97, as amended.
Compliance with the limitations and stipulations that have been set forth in your permit is
mandatory. You have the right to appeal any limitation or stipulation as stated on your permit.
Any person aggrieved by this action may appeal, pursuant to Section 4 of the Environmental
Hearing Board Act, 35 P.S. Section 7514, and the Administrative Agency Law, 2 Pa. C.S. Chapter 5A,
to the Environmental Hearing Board, Second Floor, Rachel Carson State Office Building, 400 Market
Street, P.O. Box 8457, Harrisburg, PA 17105-8457, 717-787-3483. TDD users may contact the Board
through the Pennsylvania Relay Service, 800-654-5984. Appeals must be filed with the Environmental
Hearing Board within 30 days of receipt of written notice of this action unless the appropriate statute
provides a different time period. Copies of the appeal form and the Board's roles of practice and
procedure may be obtained from the Board. The appeal form and the Board's rules of practice and
procedure are also available in braille or on audiotape from the Secretary to the Board at 717-787-3483.
This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable
statutes and decisional law.
If you have any questions concerning the enclosed permit/al}d/or the requirements set forth by the
Pennsylvania Solid Waste Management Act, please call me at/tl~above~ number..3
._ ~.....~ely,_..../ ./~'..~'.-~ - .
"-'-"~/.,~ Francis P. Fair -/
// Program M .a~,.ager
/ Waste Nlana~ement Program
Enclosure /
cc: Hopewell Township
North Newton To~vnship,J
Cumberland County Planning Commission
Martin & Martin, Inc.
Tom lmphong, Cumberland County Solid Waste Authority .,'.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
WASTE MANAGEMENT PROGRAM
SOUTHCENTRAL REGION
FORM NO. 13-A
MODIFICATION TO SOLID WASTE DISPOSAL AND/OR PROCESSING PERMIT
Under the provisions of Act 97, the Solid Waste Management Act of July 7, 1980, as amended, Solid
Waste Permit Number 100945, issued on November 21, 1990 (repermitted) to:
Community Refuse Service, Inc.
RD 1, Box 430
Shippensburg, PA I7257
Hopewell and North Newton Towns,hips
Cumberland County
is hereby modified as follows:
This permit modification is issued for the construction and operation of the Newton Expansion
Municipal Waste Landfill (Newton Expansion). This permit modification is issued based on the
following submissions:
1. The original Phase I permit application prepared by Martin and Martin, Inc., received by the
Department November 25, 1992 and consisting of the following:
Form A - Application for Murdcipal Waste Permit
Forin B - Professional Certification
Form C 1 - Compliance History Certification
Form D - Exclusionary Area Criteria / Environmental Assessment Process for Municipal
Waste Management Facilities
This modification shall be attached to the existing Solid Waste Permit described above and shall become a
part thereof effective on au~.v 3~., 1990~'~ . This permit modification extends the expiration
date ofthe permit to auxv
oF ENVi 0 / SrA[ P OTEC*ION
/ Page I of 10
Community Refuse Services, Inc.
Cumberland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page 2
Form D Drawings:
° 100 Year Floodplain Map
o Copy U.S. Fish & Wildlife Service National Wetlands Inventory Map of the Project A~ea.
° Copy of USDA Soil Conservation Service Soils Map of the Project Area
o Wetland Areas - Sheet I of 1
° Visual Analysis Profile Locations
° Visual Analysis Line of Sight Profiles (Revised November 1997)
Form E- Contractual Consent of Landowner
Form 1 - Facility Plan
Form 2 - Map Requirements - Phase I, Municipal Waste and Construction/Demolition Waste Landfills
Form 6 - Geologic Information - Phase I
Form 7 - Hydrogeologic Information - Phase I
Form 8 - Municipal Waste Landfills Initial Ground Water Background Analysis - Phase I
Form 11 - Mineral Deposits Information - Phase I
Form 12 - Alternative Water Supply - Phase I
Form 13 - Soils Information - Phase I
Phase I Drawings:
Drawing
Number Title
N-101
N-102
N-103-1
N-I'03-2
N-104
N-105
N-106-1
N-106-2
N-107
N-108
N-109-1
N-109-2
N-110A
N-IIOB
N-IIOC
N-IIOD
Site Area Map
Base Map (I"=300') (Revised November 1997)
Facility Map (1 "=300') (Revised November 1997)
Facility Map (1"=200') (Revised November 1997)
Form 6 Base Map (Revised 11/12/97)
Geologic Map (Revised 11/12/97)
Geologic Cross-Section A-A' & B-B'
Geologic Cross-Section C-C' (Revised 7/26/96)
Water Table Map for Regional Aquifer March 27, 1992 Static Water
Elevations (Revised 11/12/97)
Composite High Water Table Map for Regional Aquifer
(Revised 11/12/97)
Flow Nets E-E' & F-F'
Flow Nets G-G' & H-H' (Revised 7/26/96')' ~-
Surface Water Map (Revised 7/26/96)
Surface Water Map (Revised 7/26/96)
Surface Water Map (Revised 7/26/96)
Surface Water Map (Revised 7/26/96)
Cqmmunity Refuse Services, Inc.
Cumberl~d County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page 3.
N-Il1
N-112
N-113
N-114-1
N-114-2
N-114-3
N-114-4
N-I15A
N-115B
N-115C
N-115D
Background and Proposed Permanent Surface and Ground Water Quality
Characterization Map (Revised 11/12/97)
Soil Test Pit and Cross-Sections Locations Map (Revised 11/12/97)
Soil Series Map (Revised November 1997)
Soil Cross-Sections A-A', B-B', C-C', D-D', E-E'
Soil Cross-Sections F-F', O-O', H-H', I-I', J-J'
Soil Cross-Sections K-K', L-L', M-M', N-N'
Soil Cross-Sections O-O', P-P', Q-Q', R-R', S-S', T-T'
Private Water Supplies Map (Revised 7/26/96)
Private Water Supplies Map (Revised 7/26/96)
Private Water Supplies Map (Revised 7/26/96)
Private Water Supplies Map (Revised 7/26/96)
The. original Phase II permit application prepared by Martin and Martin, Inc., received by the
Department December 18, 1992, and consisting of the following:
Form 3 - Map Requirements - Phase II Municipal Waste and Construction/Demolition Waste Landfills
Form 14 - Operation Plan - Phase II
Form 15 - Air Resources Protection
Form 16 - Revegetation
Form 17 -Erosion and Sedimentation Controls
Form 18 - Water Quality Monitoring System - Phase II
Form 19 - Ivlunicipal Waste Landfills Quarterly, Water Quality Analysis
Form 23 - Soils Information
Form 24 - Liner System - Phase II
Form 25 - Leachate Management - Phase II
Form 26 - Oas Management
Form 27 - Contingency Plan For Emergency Procedures
Form 28 - Closure
Forln 38 - Request For Equivalency Review - Geonet Detection Zone
Form 38 - Request For Equivalency Review - Protective Cover (AASHTO #8 stone/16 oz geotextile)
Form 38 - Request For Equivalency Review - Foam As Daily Cover
Phase II Drawings:
Sheet No. Title
LF-1
LF-2
LF-3
LF-4
LF-5
Existing Site Condition~/Facility Map (Rev'i~od February 1998)
Water Table Contours (with existing grade) (Revised July 1996)
Water Table Contours (with excavation contours) (Revised July 1996)
Excavation Grade (with existing contours) (Revised July 1996)
Excavation Grade (without existing contours) (Revised July 1996)
· Community Refi~se Services, Inc.
Cumberland County Landfill
Hopewell and Norlh Newton Townships
Cumberland County
Permit No. 100945
P~ige 4
-LF-6
LF-7
LF-8
LF-9
LF-10
LF-I 1
LF-12-
LF-13
LF-14
LF-15
LF-16
LF-17
LF-18
LF-19
LF-20
LF-21
'LF-22
LF-23
LF-24
LF-25
LF-26
LF-27
LF-2$
LF-29
LM-1
LM-2
LM-3
LM-4
ES-1
ES-2
ES -3
ES-4
ES-5
ES-6
ES -7
Witness Lines (Revised July 1996)
Leachate Collection Lines (Revised April 1998)
Final Contour Plan (with existing contours)
Final Contour Plan (without existing contours) (Revised July 1996)
Pad N- 1 Development Plan (Revised July 1996)
Pad N-2 Development Plan (Revised July 1996)
Pad N-3 Development Plan (Revised July 1996)
Pad N-4 Development Plan (Revised July 1996)
Pad N-5 Development Plan (Revised July 1996)
Pad N-6 Development Plan (Revised July 1996)
Pad N-7 Development Plan (Revised July 1996)
Sections A-A, B-B (Revised July 1996)
Sections C-C, D-D (Revised July 1996)
Sections E-E, F-F (Revised July 1996)
Sections G-G, H-H (Revised July 1996)
Sections I-I, J-J (Revised July 1996)
Sections K-K, L-L (Revised July 1996)
Access Road Plan & Profile
Landfill Construction Details (Revised November 1997
Gas Vents/Capping Details
Schedule or'Activities/Landfill Construction Details (Revised July 1996)
Conceptual Closure/Landfill Development Plan
Conceptual Closure/Landfill Development Plan
Soil Borrow Are Grading Plan (Revised July 1996)
Leachate Collection/Detection Sump Plan (Revised April 1998)
Sump Cross-Sections A-A and D-D (Revised April 1998)
Sump Cross-Sections B-B and C-C
Leachate Collection/Detection System Pump House Details (Revised April 1998)
Existing Site Conditions/SCS Soil Classification Map (Revised November 1997)
Soil Erosion & Sedimentation Control Plan
Soil Borrow Area Grading Plan (Revised November 1997)
Pad Development Schematic
Interceptor Channel Sections & Profiles
Sedimentation Basin,CE & S Details
E & S Details
Letter dated July 12, 1995 from Bucek & Associates, Inc. to. Mr. Mark Embeck of the Depart-
merit. The letter was received July 19, 1995 and contains ~nformatlon on the installation of two
stream flow measuring devices.
.Community Refuse Services, Inc.
Cumberland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page $
4. Letter dated October 12, 1995, from Bucek & Associates, Inc., to Mr. Mark Embeck of the
Department. The letter was received October 16, 1995, and contained information relative to
stream flow monitoring of the Middle Tributary to the Conodoguinet Creek (as designated on
Surface Water Map Drawing N-110C).
5. Response document to the Department's May 2, 1996 review letter, prepared by Martin and
Martin, Inc. and received by the Department July 30, 1996. The response document included the
following attachments and additional information:
° A response document prepared by Bucek & Associates, Inc. dated July 28,1996 and
received by the Department July 30, 1996.
o Form D - Exclusionary Area Criteria/Environmental Assessment Process For Municipal
Waste Management Facilities.
o Additional information for Form 6.
o Additional information for Form 7
° .Additional information for Form 8
° Form G (A) - Air Resources Protection Dust Emissions Estimate And Control Plan.
° Revised information for Form 14, Form 16, Form 25, Form 27 and Form 28.
o Revised Bonding Worksheets.
o Revised Drawings (the drawings and sheets that have been revised are noted on the list
above).
6. Completed Form G(B) - Air Resources Protection NIVIOC Emissions Estimate and Control Plan.
Form G(B) was prepared Martin and Martin, Inc., and received by the Department August 13,
1996.
7. Additional information submitted by Martin and Martin, Inc., received by the Department
September 16, 1996, containing a Traffic Impact Study prepared by Grove Miller Engineering,
Inc.-
8. Additional information submitted by Martin and Martin, Inc:.'~nd received by the Department
February 28, 1997. The additional information consisted of the Slope Stability Analysis and a
copy of Air Plan Approval Application. Included in the Air Plan Approval Application is Sheet
No. 1, AQ-1 - Existing Site Conditions/Facility Map (Revised November 1997).
.Comm. unity Refuse Service~, Inc.
Cumberland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page 6
10.
11.
13.
14.
15.
16.
17.
18.
A copy of the proof of notification to contiguous landowners and host municipalities received by
the Department April 7, 1997.
Update to the Traffic Impact Study dated July 21, 1997, prepared by Grove Miller Engineering,
Inc. The update included additional information required by the revised Form D.
RexTised Form D submitted by Martin and Martin, Inc., received by the Department August 4,
1997. The revised included a revised Attachment D-lA, a revised Attachment D-14: Traffic, a
revised Attachment D-16: Economic and Social Considerations, Attachment D~I 7 and Attachment
D-18.
Response to the Independent Engineering Review of the Community Refuse Service, Inc.
proposed Newton Expansion. The response was prepared by Martin md Martin, Inc. md
received by the Department November 13, 1997. Included in the document are revisions,
additional information and responses to comments on the Independent Engineering Review.
A letter from Martin and Martin, Inc., received by the Department November 25, 1997, including
a copy of correspondence from the Pennsylvania Historical and Museum Commission dated
November 14, 1997.
Additional information received by the Department January 8, 1998, from Martin and Martin,
Inc._ The additional information included a completed Form 46, Form B with original signatures,
and Form E, resigned and notarized, including the Form E map.
A response letter dated January 2, 1998 from Martin and Martin, Inc., received by the
Department January 8, 1998, consisting of responses to the review letter from North Newton
Township dated December 3, 1997.
Additional information submitted by Martin and Martin, Inc. and received by the Department
March 3, 1998. The information included proof of notification, Airport Location Map, copies of
correspondence relating to the bog turtle, revised Form G(A), a revision to Form I narrative and a
revised Sheet No. LF-1.
Additional information submitted by fax April 17, 1998, from Martin and Martin, Inc. The
information contained a listing of benefits related to operation of the Cumberland County
Landfill. Hard copy of this letter was received by the Department April 20, 1998.
Revised drawings submitted by Martin and Martin, Inc. '~ld received by the Department
April 24, 1998. The drawings were revised to show changes which provide for dual leachate
slope risers and pumps from the sumps on the Newton Expansion. The modified drawings were
LF-7, LM-I, LM-2, and LM-4.
Comnl.unity Refuse Services, Inc.
'Curnb~erland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page 7
19.
A letter to the Department dated April 27, 1998 from Ms. Sally J. Winder, Solicitor for Hopewell
Township Board of Supervisors, concerning the Newton Expansion. This letter expressed
concerns with landfill truck traffic and requested permit conditions to address those concerns.
20.
A letter to the Department dated May 5, 1998 from North Newton Township Board of Supervisors
expressing their agreement with the alternative routing of truck traffic from the Cumberland
County Landfill borrow area into the North Newton Expansion area. These routes are outlined in
the attached letter of April 12, 1998'from Community Refuse Services, Inc.
21.
Adititional information received from Martin and Martin, Inc. containing pages from EPA docu-
ment EPM600/R-95/051 titled RCRA Subtitle D (258) Seismic Design Guidance for Municipal
Solid Waste Landfill Facilities. This document was received by fax July 16, 1998 and hard copy
received July 22, 1998.
PERMIT CONDITIONS:
No more than 1,500 tons of solid waste may be received at this facility for disposal on any single
operating day. This figure represents the maximum daily volume of the facility, pursuant to
Section 1112 of Act 101, Municipal Waste Planning, Recycling and Waste Reduction Act, 53
P.S. Section 4000.112, which section also provides that a mandatory civil penalty of $100 per
ton applies to any excess volume received for disposal at this facility for any reason.
No more than 1,000 tons of solid waste may be received at this facility for disposal, on an
average daily volume basis over the standard calendar year quarter. This figure represents the
average daily volume of the facility, pursuant to Section 1112 of the Municipal Waste Planning,
Recycling and Waste Reduction Act, 53 P.S. Section 4000.1112, and has been set after
consideration of weather, seasonal variations, community clean-up days and other factors.
Section 1112 provides that a mandatory civil penalty orS100 per ton applies to any excess waste
received for disposal at this facility for any reason. Any penalty shall be calculated by the
Department after determining the total tonnage of solid waste received for disposal at this facility
during the calendar year quarter, divided by the number of permitted operating days that the
facility is permitted to accept waste for disposal during that quarter.
3. The permittee shall contact Cumberland Geotechnical Consultants, Inc. or a similarly qualified
geotechnical consultant to review and evaluate the selection of all geosynthetic and soil riaaterials
proposed for use in the landfill construction. The evaluation shall be made to ensure the accep-
tability and conformance of all materials with the analysis presented in the Report On Stability
Analyses For Newton Expansion Area Cumberland County Lan. drill, dated January 1997.
4. Prior to the beginning of construction of the subbase for the liner, Community Refuse Services,
Inc., their consultants, engineers, QA/QC personnel and any other persons who will be involved
in any aspects of the QAJQC activities at the site must attend a pre-construction meeting with the
Department.
· Community Refuse Services, Inc.
CumBerland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page g
I0.
11.
12.
13.
Within 60 days of permit issuance a bond in an amount approved by the Department must be
submitted to the Department.
The horizontal grid control system shall be controlled and tied to a permanent physical marker or
object located on site, The vertical control shall be tied to an elevation established for the
permanent marker. The permanent marker must be established prior to construction and must be
indicated on the as-built engineering drawings and annual topographical surveys submitted to the
Department.
The permittee shall implement mitigation measures proposed in the permit application to
minimize the visual effect of the landfill between the Conodoguinet Creek and the Newton
Expansion.
Notice of commencement of construction accompanied by a general schedule must be submitted
to the Department 90 days prior to the initiation of any construction of any pad.
The permit'tee must receive approval from the Department before elimination of the use of geo-
textile beneath the secondary liner. A field determination must be made by the Department to
determine if geotextile use can be eliminated. Community Refuse Services, Inc. will provide t~e
Department with at least 48 hours notice for all required field determinations.
Before waste can be placed in each phase of the landfill, certification of proper site construction
in accordance with the approved plans and specifications and conditions of this permit must be
submitted by a registered professional engineer and approved by the Department.
The additional leachate pumps must be installed in the leachate collection system as detailed in
correspondence from Martin and Martin, Inc. received April 24, 1998. The installation of the
punSps shall be consistent with revised Drawings LF-7, LM-I, LM-2 and LM-4.
If flow is detected in the leachate detection zone, it must be piped into the leachate collection
system.
The wells proposed for this expansion, and shown on Drawing N-111 (Revised November 1997)
are approved as part of this permit modification.
14. Proposed monitoring wells must be installed and sampled so that two quarters of analytical data
will be submitted to the Department prior to waste disposal on..a lined cell.
15. Form 18 - Water Quality Monitoring System - Phase II, shall be prepared and submitted to the
Department within 60 days of the completion of drilling activity for each component of the
approved monitoring system.
, Community Refuse Services, Inc.
Cumberland County Landfill
Hopewell and North New,on Townships
Cumberland County
Permit No. 100945
Page 9.
16.
17.
18.
19.
20.
21.
A site-specific groundwater Sampling and Analysis plan [consistent with § 273.152Co)] shall be
prepared and submitted to the Department with the required Form 18 - Water Quality Monitoring
System - Phase II.
A paper copy and a paperless (electronic) copy of the quarterly groundwater monitoring results
should be submitted to the DEP, Southcentral Regional Office, within 60 days of completion of
each sampling event. The paperless copy should be prepared in a format to be specified by the
Department. The paperless copy is not required until the Department specifies a format
Community Refuse Services, Inc. shall maintain a 300-foot setback, as shown on Drawing LF-1
(revised February 1998), from the area identified as possible habitat for the bog turtle Clemrays
muhlenbergii. If it is determined by the Department that the bog turtle does not exist in the
wetland area adjacent to Oakville Road, then the permit'tee may operate within the 300-foot
setback.
The approach routes, as designated in the July 21, 1997 letter from Grove Miller Engineering,
Inc. to Martin and Martin, Inc., are approved and must be posted at both the entrance and exit of
the facility. Community Refuse Services, Inc. will ask all waste haulers to sign a statement that
they will make every effort to use the approved routes. The landfill will give all truck drivers a
handout showing the routes waste trucks should travel when coming to or leaving the landfill.
Hopewell and North Newton Townships have expressed concerns about truck traffic associated
with the Cumberland County Landfill Newton Expansion. The Townships have expressed a
desire to have warning signs erected to alert drivers of potentially slow moving landfill traffic.
Cumberland County Landfill will pay for the installation and operation of signs as approved by
PennDOT. It is understood that the Townships will need to request and obtain approval from
PennDOT for the erection of any warning signs located in their Township.
Community Refuse Services, Inc. shall install warning signs and flashing warning lights on the
rear of licensed vehicles used for soil transportation between the approved soil borrow area and
the.Newton Expansion. In addition, the permittee shall request that all drivers utilize four way
flashers during their travel along the public roadway between the landfill and the soil borrow
area.
22. Community Refuse Services, Inc. will design alternative truck routes from the borrow hrea into
the Newton Expansion as indicated in correspondence to the Supervisors of North Newton
Township dated April 21, 1998. Community Refuse Services, Inc. will submit the alternative
routing plan(s) to all appropriate agencies for approval.
23. The plan for gas well location at the Newton Expansion is approved with the understanding that
the number of wells may need to be increased and the locations adjusted to address gas
generation conditions within the landfill. In addition, gas collection system locations may need
to be adjusted to address off-site odors during active cell operations.
¢orarnunity Refuse Services, Inc.
Cumberland County Landfill
Hopewell and North Newton Townships
Cumberland County
Permit No. 100945
Page 10
24.
25.
26.
27.
28.
WRhin 90 days of issuance of this permit, the permittee must submit to the Department one
complete copy of the permit application, including ail insertions and revisions.
Any finai operation, design or other plan developed subsequent to permit issuance which exhibits
changes in the structures, locations, specifications, control measures or other changes of sub-
stance shall be submitted to the Department for subsequent permit action. Any deviation of
plans herein approved shall not be implemented before first obtaining a permit amendment or
written approval from the Department.
Approvai of any plans or facilities herein refers to functional design, but does not guarantee
stability or operationai efticiency. Failure of the measures and facilities herein approved to
perform as intended, or as designed, or in compliance with the applicable Rules and Regulations
of the Deparu.ent, for any reason, shall be grounds for the revocation or suspension of ti'fig
permit. Failure of the Permittee to comply with the terms of the permit or conditions, or failure
of the Permittee to construct or operate the proposed facilities in conformity with the approved
plans shall be grounds for the revocation or suspension of this permit.
As a condition of this permit, and of the permittee's authority to conduct the activities authorized
by this permit, the permittee hereby authorizes and consents to allow authorized employees or
agents of the Department, without advance notice or a search warrant, upon presentation of
appropriate credentials, and without delay, to have access to and to inspect all areas on which
solid waste management activities are being or will be conducted. The authorization and consent
shall include consent to collect samples of waste, water or gases, to take photographs, to perform
measurements, surveys and other tests, to inspect any monitoring equipment, to inspect the
methods of operation, and to inspect and/or copy documents, books or papers required by the
Department to be maintained. This permit condition is referenced in accordance with Sections
608 and 610(7) of the Solid Waste Management Act, 35 P.S. Sections 6018.608 and
6018.610(7). This condition in no way limits any other powers granted under the Solid Waste
Management Act.
Nothing herein shall be construed to supersede, amend or authorize violation of the provisions
of any valid and applicable local law, ordinance, or regulation, provided that said local law,
ordinance or regulation is not preempted by the Pennsylvania Solid Waste Management Act, the
Act of July 7, 1980, Act 97, 35 P.S. 6018.101, et seq.
PRAECIPE FOR LISTING CASE FOR TRIAL
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the following case:
( ) for JURY trial at the next term of civil court.
( X} for trial without a jury.
North Newton Township
Plaintiff
Hopewell Township
Defendant
(X)
( )
( )
Civil Action - Equity
Appeal From Arbitration
(other)
The trial list will be called on
8/13/02 and
Trials commence on 9/9/02
Pretrials will be held on 8/21/02
(Briefs are due 5 days before
pretrials)
(The party listing this case for
trial shall provide forthwith a copy
of the praecipe to all counsel,
pursuant to local Rule 214,1.)
No. 1833 Civil/ Eqthity 2001
Indicate the attorney who will try case for
praecipe: Robert L. O'Brien, Esquire
the party who files this
Indicate trial counsel for other parties if known:
Sally J. Winder, Esquire
This case is ready for trial.
Date:
Signed:
Print Name:
Attorney For: Plaintiff
NORTH NEWTON TOWNSHIP,
PLAINTIFF
· IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
HOPEWELL TOWNSHIP,
DEFENDANT
: 01-1833 EQUITY
AND NOW, this
ORDER OF COURT
day of July, 2002, IT IS ORDERED that a bench trial
shall be conducted at 8:45 a.m., Thursday, August 8, 2002, in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania.
Robert L. O'Brien, Esquire
For Plaintiff
Sally J. Winder, Esquire
For Defendant
Court Administrator
:saa
AMPAD HO. 23-7"/6 400 SETS RECYCLED PAF;.R
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 2001-1833
:IN EQUITY
MOTION FOR CONTINUANCE
1. Movant is Robert L. O'Brien, Esquire, attorney for the Plaintiff.
2. Recently the Court established a hearing for August 8, 2002. Movant has
another matter scheduled in Franklin County Court at the same date and time.
WHEREFORE, Movant respectfully requests that the hearing set for August 8, 2002
at 8:45 a.m. be continued to another date.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
rlo\Clients\NNT~continuance.mot
By:
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
NORTH NEWTON TOWNSHIP,
Plaintiff
VS.
HOPEWELL TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 2001-1833
:IN EQUITY
NORTH NEWTON TOWNSHIP,
Plaintiff
HOPEWELL TOWNSHIP,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO, 2001-1833
:IN EQUITY
ORDER OFCOURT
AND NOW, this -.~01~ day of July, 2002, upon review of the attached Motion For
Continuance, said Motion is granted and the hearing on the above-captioned matter is
continued to the ¢~~,j[~_ day of _ (,...~%~J~)~.- ,2002 at I',~) a.,.m,/p,m by the Court.
Notice of entry of this order shall be provided to all parties by petitioner.
Robert L, O'Brien, Esquire
Attorney for Petitioner
Sally J. Winder
Attorney for Respondent
NORTH NEWTON TOWNSHIP,
Plaintiff
V.
HOPEWELL TOWNSHIP,
Defendant
IN THE COURT OF COM~ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 01-1833 EQUITY TERM
ORDER OF COURT
AND NOW, this 21st day of August, 2002, this matter
having been called for trial, and the parties having reached
an agreement, judgment is entered in favor of North Newton
Township against Hopewell Township in the amount of
$310,000.00.
/Robert L. O'Brien,
For Plaintiff
/Sally J. Winder,
For Defendant
Esquire
Esquire
prs