HomeMy WebLinkAbout11-2165
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
BY: HARRY D. MCMUNIGAL, ESQUIRE
IDENTIFICATION NO. 38386
TREEVIEW CORPORATE CENTER
2 MERIDIAN BOULEVARD, SUITE 100
WYOMISSING, PA 19610
(610) 374-8377, (610) 376-3105 (FAX)
hdmcmunhza1(a?bhcb.com
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA AMERICAN WATER COMPANY, CIVIL ACTION - LAW
Plaintiff
NO. I? ?llr?5 Okl)
V.
f
SMITH LAND & IMPROVEMENT CORPORATION
AND SMITH LAND & IMPROVEMENT, INC., Sm
Defendants
PRAECIPE TO ISSUE WRIT OF SUMMONS e
TO THE PROTHONOTARY:
Kindly issue a Writs of Summons in the above matter for the Defendants, Smith Land &
Improvement Corporation and Smith Land & Improvement, Inc.
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
l
1, Esquire
Harry D. McNlun?
DATED: Vxak
CD
CD r
-a
C?
Pei/ U/ 13 11
m6mulliz
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
BY: HARRY D. MCMUNIGAL, ESQUIRE
IDENTIFICATION NO. 38386
TREEVIEW CORPORATE CENTER
2 MERIDIAN BOULEVARD, SUITE 100
WYOMISSING, PA 19610
(610) 374-8377, (610) 376-3105 (FAX)
hdmcmuniea16, bhcb.com
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA AMERICAN WATER COMPANY,
Plaintiff
CIVIL ACTION - LAW
NO.
v.
SMITH LAND & IMPROVEMENT CORPORATION
AND SMITH LAND & IMPROVEMENT, INC.,
Defendants
WRIT OF SUMMONS
TO: Smith Land & Improvement Corporation
2010 State Road
Camp Hill, PA 17001
You are hereby notified that Pennsylvania American Water Company has commenced an
action against you.
Prothonotary bkoel eaw
Dated: _L
x
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
BY: HARRY D. MCMUNIGAL, ESQUIRE
IDENTIFICATION NO. 38386
TREEVIEW CORPORATE CENTER
2 MERIDIAN BOULEVARD, SUITE 100
WYOMISSING, PA 19610
(610) 374-8377, (610) 376-3105 (FAX)
hdmcmuni2a1(a,bhcb.com
? 1?_E.f3-0?= FICA.
HE PROTHONOTARY
2011 JUL -5 AM 11: 323'
ATTORNIRK ft?r jffift)?
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA AMERICAN WATER COMPANY,
Plaintiff
CIVIL ACTION - LAW
NO. 11-2165
V.
SMITH LAND & IMPROVEMENT CORPORATION
AND SMITH LAND & IMPROVEMENT, INC.,
Defendants
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint and notice are served, by
entering a written appearance personally or by attorney and filing in writing with the court your defenses
or objections to the claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court with only such further notice
to you as may be required by law, 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 OR 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.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
Telephone Number: (800) 990-9108
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
BY: HARRY D. MCMUNIGAL, ESQUIRE
IDENTIFICATION NO. 38386
TREEVIEW CORPORATE CENTER
2 MERIDIAN BOULEVARD, SUITE 100 ATTORNEY FOR PLAINTIFF
WYOMISSING, PA 19610
(610) 374-8377, (610) 376-3105 (FAX)
hdmcmuniga1(a bhcb.com
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA AMERICAN WATER COMPANY, CIVIL ACTION - LAW
Plaintiff
NO. 11-2165
V.
SMITH LAND & IMPROVEMENT CORPORATION
AND SMITH LAND & IMPROVEMENT, INC.,
Defendants
COMPLAINT
1. The Plaintiff, Pennsylvania American Water Company,(hereinafter "the Company" as
referenced in the Agreements, is a public utility corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, with its office of 800 West Hershey Park Drive, Hershey, Dauphin
County, Pennsylvania 17033.
2 The Defendant, Smith Land & Improvement Corporation (hereinafter "Depositor" as
referenced in the Agreement), is a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania, with a registered office address of 2010 State Road, Camp Hill,
Cumberland County, PA 17001.
3. The Defendant, Smith Land & Improvement, Inc. (hereinafter "the Applicant" as
referenced in the Special Utilities Services Agreement), is a corporation duly organized and existing under
the laws of the Commonwealth of Pennsylvania, with a registered office address of 6375 Mercury Drive,
Mechanicsburg, Cumberland County, PA 17050.
COUNT I - BREACH OF CONTRACT
PENNSYLVANIA AMERICAN WATER COMPANY v.
SMITH LAND & IMPROVEMENT CORPORATION
4. Plaintiff incorporates by reference the averments contained in paragraphs 1-3 of the within
Complaint as though the same were set forth at length herein.
5. On or about May 12, 2003, the Company and Depositor entered into an Extension Deposit
Agreement (hereinafter "the Agreement") for the installation of 2,280 feet of 24 inch Ductile Iron Pipe;
4,750 feet of 12 inch Ductile Iron Pipe; 1,500 feet of 8 inch Ductile Iron Pipe and 250 feet of 6 inch
Ductile Iron (DI) pipe in Good Hope Road, Wertzville Road, Pellingham Circle, Eaglesmore Lane,
Shireton, Claridge Court and Heatherington Way, Wentworth Estates, Phase 1, Hampden Township,
Cumberland County, PA. A true and correct copy of the Extension Deposit Agreement is attached hereto
as Exhibit "A", and made a part hereof.
6. Pursuant to the Agreement a Preliminary Memorandum was executed by the Parties on or
about May 12, 2003 and the Depositor made a partial deposit of $186,000.00 wherein the total amount
due was $282,690.00.
7. Pursuant to the Agreement entered into by the Company and Depositor, Smith Land &
Improvement Corporation was required to deposit any additional amounts due in the Final Memorandum
to the Company if the amount exceeded the amount noted in the Preliminary Memorandum.
8. The project was completed and on or about August 16, 2006, February 7, 2008, November
5, 2008 and June 22, 2010, a Final Memorandum as well as various Extension Deposit Refund Statements
were forwarded by the Company to Smith Land & Improvement Corporation pursuant to the Agreement
indicating that the total cost for the project was $342,438.63 and requesting payment of $66,142.43. A
true and correct copy of the Final Memorandum are attached hereto as Exhibit "B" and made part hereof.
9. An adjustment of $6,393.80 was made to the total amount due as a result of service
connections made whereby a revised balance was now due in the amount of $59,748.63.
10. The Plaintiff has made numerous requests to the Defendant for payment of the amount
owed pursuant to the Agreement but the Defendant has failed and refused to make payment.
11. The Defendant is in breach of the Agreement and is responsible for the payment of
$59,748.63 as outlined in the Final Memorandum issued as a result of the work performed pursuant to the
Agreement.
WHEREFORE, the Company, Pennsylvania American Water Company, demands judgment
against the Defendant, Smith Land & Improvement Corporation for the sum of $59,748.63, together
with delay damages, interest and costs as appropriate.
COUNT II - UNJUST ENRICHMENT
PENNSYLVANIA AMERICAN WATER COMPANY v.
SMITH LAND & IMPROVEMENT CORPORATION
12. Plaintiff incorporates by reference the averments contained in paragraphs 1-11 of the
within Complaint as though the same were set forth at length herein.
13. The Company's agents, servants, workmen, employees and/or independent contractors
performed the work outlined in Count I of the within Complaint based upon requests received from
Defendant, Smith Land & Improvement Corporation and expended sums for time, equipment and
provided the services to install the pipe.
14. The Defendant, Smith Land & Improvement Corporation will be unjustly enriched if
they are allowed to retain the services and materials provided by The Company's agents, servants,
workmen, employees and/or independent contractors without having to make payment.
WHEREFORE, the Company, Pennsylvania American Water Company, demands judgment
against the Defendant, Smith Land & Improvement Corporation for the sum of $59,748.63, together
with delay damages, interest and costs as appropriate.
COUNT III - BREACH OF CONTRACT
PENNSYLVANIA AMERICAN WATER COMPANY v.
SMITH LAND & IMPROVEMENT, INC.
15. The Plaintiff incorporates by reference the allegations contained in paragraphs 1-14 of
the within Complaint as though the same were set forth at length.
16. On or about May 21, 2003 Plaintiff (herein the "Company") and Defendant, Smith Land &
Improvement, Inc. (hereinafter the "Applicant") entered into an Specialty Utilities Services Agreement for
the purchase of materials, manufacture and installing one (1) pressure booster pumping station, including
all necessary appurtenances, to increase the water pressure in the Wentworth Estates, Hampden Township,
Cumberland County, PA. A true and correct copy of the Specialty Utilities Services Agreement is
attached hereto as Exhibit "C", and made a part hereof.
17. Pursuant to the Agreement a Preliminary Memorandum was executed by the Parties on or
about June 6, 2003 wherein the job was estimated at $35,000.00.
18. Pursuant to the Agreement entered into by the Company and the Applicant, Smith Land &
Improvement, Inc. was required to deposit any additional amounts due in the Final Memorandum to the
Company if the amount exceeded the amount noted in the Preliminary Memorandum.
19. The project was completed and on or about August 16, 2006, July 10, 2007, November 24,
2008 and July 31, 2009, a Final Memorandum, as well as statements and a Specialty Utility Service
Agreement Statement were forwarded by the Company to Smith Land & Improvement, Inc. pursuant to
the Agreement indicating that the cost for the project was $60,034.93 and requesting payment of
$25,034.93. A true and correct copy of the Final Memorandum and Statements are attached hereto as
Exhibit "D" and made part hereof.
20. The Plaintiff has made numerous requests to the Defendant for payment of the amount
owed pursuant to the Agreement, but the Defendant has failed and refused to make payment.
21. The Defendant is in breach of the Agreement and is responsible for the payment of
$25,034.93 as outlined in the Final Memorandum and statements issued as a result of work performed
pursuant to the Agreement.
WHEREFORE, the Company, Pennsylvania American Water Company, demands judgment
against the Defendant, Smith Land & Improvement, Inc. for the sum of $25,034.93, together with
delay damages, interest and costs as appropriate.
COUNT IV - UNJUST ENRICHMENT
PENNSYLVANIA AMERICAN WATER COMPANY v.
SMITH LAND & IMPROVEMENT, INC.
22. Plaintiff incorporates by reference the averments contained in paragraphs 1-21 of the
within Complaint as though the same were set forth at length herein.
23. The Company's agents, servants, workmen, employees and/or independent contractors
performed the work outlined in Count III of the within Complaint based upon requests received from
Defendant, Smith Land & Improvement, Inc., and expended sums for time, equipment and provided
the services to install the booster pumping station.
24. The Defendant will be unjustly enriched if they are allowed to retain the services and
materials provided by The Company's agents, servants, workmen, employees and/or independent
contractors without having to make payment.
WHEREFORE, the Company, Pennsylvania American Water Company, demands judgment
against the Defendant, Smith Land & Improvement, Inc. for the sum of $25,034.93, together with
delay damages, interest and costs as appropriate.
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
V7
H D. cMunigal, Esquire
Attorney for Plaintiff
Pennsylvania American Water Company
36100-14/Smithland
VERIFICATION
I, Joseph Woodward, state that I am a representative of the Plaintiff, Pennsylvania American
Water Company, Inc., in the within action and that the facts set forth in the foregoing Complaint are true
and correct to the best of my knowledge, information and belief. I understand that false statements herein
made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to
authorities.
Jo h Woodward
P ylvania American Water Company, Inc.
Dated:
EXHIBIT A
s0a3o7?(o
EXTENSION DEPOSIT AGREEMENT
THIS AGREEMENT entered into this IQ day ofOcu,4,20 0 by and
between Pennsylvania American Water Company hereinafter called the "COMPANY" and
Smith Land & Improvement Corp. ' hereinafter called the "DEPOSITOR."
WHEREAS, the DEPOSITOR desires extension of the water mains of the COMPANY, as
hereinafter described;
NOW, THEREFORE, this agreement WITNESSETH:
FIRST: THE COMPANY contracts and agrees to lay the water main (s) (and other facilities,
if any) as shown in red on the diagram hereto attached and made a part hereof described and located
as follows:
Install 2,280 feet of 24", 4,750 feet of 12",1,500 feet of 8" and
250 feet of 6" ductile iron pipe in Good Hope Road, Wertzville Road,
Pellingham Circle, Eaglesmore Lane, Shireton, Claridge Court and
Ileatherington Way, Wentworth Estates, Phase 1, Hampden Township.
SECOND: It is expressly understood and agreed that if the COMPANY shall be delayed or
prevented from installing the water main (s) (and other facilities, if any) hereinabove described
because of its failure to secure pipe or other construction materials, or for any other causes beyond its
control, such failure or delay in performance shall be excused; provided, however, if such failure or
delay in performance shall extend for a period of more than one (1) year from the date thereof, the
DEPOSITOR shall have the right to cancel and terminate this agreement on thirty (30) days` written
notice to the COMPANY, and thereafter both parties shall be relieved of all duties and obligations
arising hereunder. But this right to cancel and terminate by the DEPOSITOR shall not be invoked if
the COMPANY has received the construction material and the DEPOSITOR has made the deposit as
hereinafter required, in which event the COMPANY shall have the obligation to prosecute the work
diligently to its completion.
THIRD: The DEPOSITOR hereby agrees to deposit with the COMPANY, upon notice from
the COMPANY that it is prepared and able to go forward with the work provided in Paragraph First
hereof, an amount in cash equal to (1) the Estimated Cost less (2) the Applicable Credit, where items
(1), and (2) are to be determined as follows:
(1) The Estimated Cost shall be the estimated cost of the extension, including the estimated
cost of said main (s) and the estimated cost of any other facilities which the
COMPANY shall have decided are required to render adequate service.
(2) The Applicable Credit shall be .a credit equal to the amount produced by
multiplying (a) the average Estimated Cost per foot of the extension by (b) thirty
five (35) feet, and by multiplying the product thereof by (c) the number of bona fide
prospective customers who will be directly served by said extension.
Upon such written notice, a Preliminary Memorandum in the form attached shall
be prepared and signed by both parties showing the deposit required in accordance
with foregoing provisions. Upon completion of the installation of the extension, a
Final Memorandum in the form attached shall be prepared and signed by both
parties showing the deposit required based on the same calculation as set forth
above but by using the actual cost of the extension, including the actual
installation cost of the mains and other facilities, for the Estimated Cost and in
calculating the Applicable Credit, If the deposit shown to be due on the Final
Memorandum differs from that shown on the Preliminary Memorandum, the
DEPOSITOR will deposit any additional amount shown to be due or the
COMPANY will refund to the DEPOSITOR, any excess amount shown to have
been deposited, it being the intent of this agreement that the deposit required shall
be based on actual installation cost. If the actual installation costs exceeds the
deposit required as shown on the Preliminary Memorandum, the additional amount
of required deposit must be made by the DEPOSITOR to the COMPANY before
the granting of refunds to the DEPOSITOR.
FOUWJrH: The COMPANY hereby agrees to refund to the DEPOSITOR during the period
of ten (10) years from actual date of deposit a Per-Customer Refund Amount for each additional bona
fide prospective Customer for whom a street service connection shall be directly attached to such
main extension, as distinguished from extensions or branches thereof; provided however, that the total
amount refunded shall not exceed the original deposit, without interest, and that all or any part of the
deposit not refunded within said 10-year period shall become the property of the COMPANY. The
Per-Customer Refund Amount shall be an amount equal to the average actual completed cost of
thirty-five (35) feet of the said extension.
FIT'TH: The DEPOSITOR may request refunds under Paragraph FOURTH, once in each
Calendar quarter, furnishing the COMPANY, at such time, a listing of additional bona fide
prospective customers; however, failure on the part of the DEPOSITOR to make such request shall
not constitute a waiver of any rights hereunder or relieve the company of the obligation to make
refunds with reasonable promptness.
SIXTH: The ownership of the water main (s) and other facilities installed hereunder shall at all
times be in the COMPANY, its successors and assigns.
SEVENTH: This agreement shall be valid and binding on the COMPANY only when
executed by its authorized representative.
EIGHTH: This agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the respective parties.
NINTH: Any notice given hereunder shall be deemed sufficient if in writing and sent by
registered mail to the COMPANY at
852 Wesley Drive, Mechanicsburg, PA 17055
(Address of COMPANY)
and to the DEPOSITOR at
6375 Mercury Drive, Mechanicsburg PA 17050
(Address of DEPOSITOR)
TENTH: This agreement is entered into pursuant to the legally established Rules and
Regulations of the COMPANY, and the words, phrases, and terms hereof are to be understood and
interpreted in conformity with said Rules and Regulations, which are hereby incorporated herein by
reference.
Executed in triplicate by the parties hereto on the date first above written.
COMPANY
WITNESS: PENNSYLVANIA AMERICAN WATER
Vice President
WITNESS: DEPOSfOR
Smith Land & Improvement Corp.
T itIe
PRELIMINARY MEMORANDUM
This Preliminary Memorandum is executed by the parties hereto under and pursuant to
the prov`is,,?o_ns of Paragraph THIRD of a certain agreement in writing between the parties entered utto
on the ay of , 20 , for the installation by the COMPANY of a certain water main(s)
therein described. It is',-therefore, agreed and stipulated:
(a) Estimated Cost Main(s)
(b) Estimated cost of other facilities
(c) Total
(d) Credit Allowance:
(i) (a) + (b) Above divided by
8.780 feet of main(s)
(ii) 35
(iii) Number of bona fide
prospective customers to
served by extension
(iv) Product of (i), (ii), and
(iii)
(e) Amount of deposit: (c) minus (d)
$282,690.00
$282,690.04
This Preliminary Memorandum shall be attached to the original agreement in accordance with
the provisions of Paragraph THIRD thereof. /. t7gpo to r oF'0186,o0 u, oo J»,op&- p.- /%
Dated: / R COMPANY
Date of eposit Pennsylvania American Water
WITNESS:
WITNESS:
j
By
Vice Preside
DEPOSITOR.
Smith Land & Improvement Corp.
Tittle
$282,690.00
$32.20
EXHIBIT B
Pennsylvania
'?'??- American Water
August 16, 2006
Smith Land and Improvement Corp.
?L V?;?
6375 Mercury Drive
Mechanicsburg, Pennsylvania 17050 - -- '? ?' - 0 J)LO-7
Re: Install 2,280 feet of 24", 4,750 feet of 12",1,500 feet of 8" and 250 feet of 6" of DICL
pipe in Wentworth Estates, Phase 1, Hampden Twp.
Dear Gentlemen:
Please find enclosed four copies of the Final Memorandum for your Main Extension Agreement
number 50030726. This letter is also to inform you the job was under-estimated by $95,535.38. Upon.
receipt of the sighed Final Memorandums and your payment of $59,899.78, I can process your future
refunds based on metered connections. I am currently showing a total of 22 connections in our system
eligible for refund which I am subtracting from your amount owed of $95,535.38. I have enclosed a
copy of the estimated cost given at time agreement was signed and you can see that the total cost for
the materials of $81,679.00 did not carry over into the subtotal cost at the bottom of the worksheet.
This is the reason for the under-estimate at this time. A fully executed copy of the Final Memorandum
will be returned to you for your records.
Task Order # 50030726 Install 2280'-24" DICL pipe
Estimated $117,921.00 Actual $223;426.69 Underpayment $105,505.69
Task Order # 50030727 Install 4750'-12" DICL pipe
Estimated $ 129,442.00 Actual $ 119,495.02 Overpayment $ 9,946.98
Task Order # 50030729 Install 1500'-8" DICL pipe
Estimated $ 30,311.00 Actual $ 30,554.65 Underpayment $ 243.65
Task Order # 50030732 Install 250'-6" DICL pipe
Estimated $ 4,946.00 Actual $ 4,681.02 Overpayment $264.98
Task Order # 50030733 Install Right of Way Wentworth Ph 1
Estimated $ 70.00 Actual $ 68.00 Overpayment $ 2.00
Please forward the four copies of the Final Memorandum, your payment, contact name and phone
number for future processing to me at my address below. Should you have any questions regarding
this paperwork, please feel free to contact me at (570) 830-6557.
Sincerely,
(Z?>MaA? &SO?&
Rosemary Nardone
Administrative Support Representative
Pennsylvania American Water
100 North Pennsylvania Avenue
Wilkes-Barre, Pennsylvania 18701
R!?GROUP
1 11 - Customer Ledger Inquiry
Functions Options Tools Help
Date From r ^ ??
Customer Number (r_ Thru -'
Parent Number Seq (6
Invoice Number 10117955 Thru Paid r
Statement Number `----
Skip ToPaye
0
P . . . Document
Ty Number Itm From Net Due/
Rcpt Dat Gross Amount Open Amount Reept/
Item P
C P
S
RI 20117955 001 10/31/08 11/30/08 66,142.43 59,748.63 D R
RC 10117955 001 10/31/08 07/08/10 6,393.80-
-----
--
--
-----------
- 44444442 P
i
Total ---
-
-
66,142.43 -
-
59,748.63
®r-??
INVOICE
Smith Land & Improvement Corp
2001 State Rd
Camp Hill PA 17011-5927
American Water
P 0 BOX 822182
P6iladelpWv, PA 19182.2182
(866) 777.8126 (Opt 2,0,8,2)
r , 393 >-.:g;
11105108 10117955
.Xrr.:i M
F 50081975
Pennsylvania American Water Company
Document . . . . . . . . . Invoice
Date Reference Due Date Remark Amount
-------- -----------•- -------- ------------------------------ --------------
10/31/08 10117955 001 11/30/08 BALANCE OWED WO#50030726 66,142.43
Balance Due
Pennsylvania American Water Company
INVOICE
Remit to:
Pay Upon Receipt
American Water Capital Corp
PO Box 822192
Philadelphia, PA 19182-2192
--------------
66,142.43
Invoice Number: 10117955
Account, 50081975
Invoice Date: 11105108
AmountBWed 66,142.43
Amount Paid
10117955
EXTENSION DEPOSIT REFUND STATEMENT
Pennsylvania American Water 100 NORTH PENNSYLVANIA AVE., WILKES-BARRE, PA 18701
(NAME OF COMPANY) (LOCATION)
Smith Land & Improvement Corp. 2/7/2008
(NAME OF PARTY ENTITLED TO REFUND)
6375 Mercury Drive, Mechanicsburg, Pennsylvania 17050
(ADDRESS)
CONTRACT DATE EXPIRATION DATE WORK ORDER NO. REFUND N0.
05/12/03 06/10/13 50030726 1
TEyR?MSF CONTRACT (Basis For Refund)
ACTUAL COMPLETED COST FOR 35' OF MAIN FOR EACH BONA FIDE CUSTOMER WHOSE SERVICE LINE IS DIRECTLY
CONNECTED TO MAINS INSTALLED UNDER AGREEMENT (35 X $45.67 = $1,598.45) NO REFUND SHALL BE MADE AFTER
TEN YEARS FROM CONTRACT DATE.
BASIS FOR REFUND
Total Revenue
Service No. Account No. LOCATION For Year (Actual Other Basis
Est'd
DEPOSIT ON EXTENSION - $282,690.00
ACTUAL COST ON MAIN - $391,990.56
DIFFERENCE BETWEEN DEPOSIT AND ACTUAL COST S (109,300.58)
1724534 1 Shireton Place, Lot #18, Mechanicsburg, Pa $ 1,598.45
1702181 3 Shireton Place, Lot #19, Mechanicsburg, Pa $ 1,598.45
1684801 5 Shireton Place, Lot#20, Mechanicsburg, Pa $ 1,598.45
1890039 7 Shireton Place, Lot # 21, Mechanicsburg, Pa $ 1,598.45
1661900 2300 Claridge Ct., Lot #29, Mechanicsburg, Pa $ 1,598.45
1625847 2301 Claridge CL, Lot # 22, Mechanicsburg, Pa $ 1,598.45
1715819 2302 Claridge CL, Lot # 28, Mechanicsburg, Pa $ 1,598.45
1747377 2304 Claridge Ct., Lot #27, Mechanicsburg, Pa $ 1,598.45
1683414 2305 Claridge Ct., Lot # 24, Mechanicsburg, Pa $ 1,598.45
1853336 2203 Claridge Ct., Lot # 23, Mechancisburg, Pa $ 1,598.45
1880634 2307 Claridge Ct., Lot # 25, Mechanicsburg, Pa $ 1,598.45
1750116 2211 Eaglesmoor Ln., Lot #10, Mechanicsburg, Pa $ 1,598.45
1868795 2209 Eaglesmoor Ln Lot # 11 Mechanicsburg, Pa $ 1,598.45
1603885 2214 Eaglesmoor Ln., Lot # 15, Mechanicsburg, Pa $ 1,598.45
1642708 2215 Eaglesmoor Ln., Lot # 8, Mechanicsburg, Pa $ 1,598.45
1708454 2217 Eaglesmoor Ln., Lot # 7, Mechanicsburg, Pa $ 1,598.45
1852553 2216 Eaglesmoor Ln, Lot # 16, Mechanicsburg, Pa $ 1,598.45
1725700 5001 Pellingham Circle, Lot #1, Mechanicsburg, Pa $ 1,598.45
1734708 5003 Pellingham Circle, Lot # 2, Mechanicsburg, Pa $ 1,598.45
1658726 5005 Pellingham Circle, Lot # 3, Mechanicsburg, Pa $ 1,598.45
1671847 5005 Pellingham Circle, Lot # 53, Mechanicsburg, Pa $ 1,598.45
1663320 5007 Pellingham Circle, Lot #4, Mechanicsburg, Pa $ 1,598.45
1657615 5008 Pellingham Circle, Lot # 52, Mechanicsburg, Pa $ 1,598.45
1577934 5009 Pellingham Circle, Lot #5, Mechanicsburg, Pa $ 1,598.45
1622779 5010 Pellingham Circle, Lot # 51, Mechanicsburg, Pa $ 1,598.45
1622127 5011 Pellingham Circle, Lot #6, Mechanicsburg, Pa $ 1,598.45
1577046 5012 Pellingham Circle, Lot # 50, Mechanicsburg, Pa $ 1,598.45
TOTAL $ (66,142.43)
RECORD OF DEPOSIT
Total amount of deposit
Previous refunds to date
Balance unrefunded
Amount now due
Balance of deposit
$ 282,690.00 Amount now to be refuE(Pioduc (66,142.43)
$ - Refund approved by:
$ 282,690.00
Sr, irector)
$ 282,690.00
nager)
EXTENSION DEPOSIT REFUND STATEMENT
Pennsylvania American Water 100 NORTH PENNSYLVANIA AVE., WILKES-BARRE, PA 18701
(NAME OF COMPANY) (LOCATION)
revised
Smith Land & Improvement Corp. FOR Mt ADJUSTMENT 6/2212010
(NAME OF PARTY ENTITLED TO REFUND)
6375 Mercury Drive, Mechanicsburg, Pennsylvania 17050
(ADDRESS)
CONTRACT DATE EXPIRATION DATE WORK ORDER N0. REFUND N0.
05/12/03 06110/13 50030726 1
TERMS OF CONTRACT fBasis For Ref?n
ACTUAL COMPLETED COST FOR 35' OF MAIN FOR EACH BONA FIDE CUSTOMER WHOSE SERVICE LINE IS DIRECTLY
CONNECTED TO MAINS INSTALLED UNDER AGREEMENT (35 X $45.67 = $1,598.45) NO REFUND SHALL BE MADE AFTER
TEN YEARS FROM CONTRACT DATE.
BASIS FOR REFUND
Total Revenue
Service No. Account No. LOCATION For Year (Actual- Other Basis
Est'd
DEPOSIT ON EXTENSION - $282,690.00
ACTUAL COST ON MAIN - $391,990.58
DIFFERENCE BETWEEN DEPOSIT AND ACTUAL COST $ ts(19,30#1.SL i
1724534 1 Shireton Place, Lot #18, Mechanicsburg, Pa $ 1,598.45
1702181 3 Shireton Place, Lot #19, Mechanicsburg, Pa $ 1,598.45
1684801 5 Shireton Place, Lot#20, Mechanicsburg, Pa $ 1,598.45
1890039 7 Shireton Place, Lot # 21, Mechanicsburg, Pa $ 1,598.45
1651900 2300 Claridge Ct., Lot #29, Mechanicsburg, Pa $ 1,598.45
1625847 2301 Claridge Ct„ Lot # 22, Mechanicsburg, Pa $ 1,598.45
1715819 2302 Claridge Ct., Lot # 28, Mechanicsburg, Pa $ 1,598.45
j 1747377 2304 Claridge Ct., Lot #27, Mechanicsburg, Pa $ 1,598.45
1683414 2305 Claridge Ct., Lot # 24, Mechanicsburg, Pa $ 1,598.45
1853336 2203 Claridge Ct., Lot # 23, Mechancisburg, Pa $ 1,598.45
1880634 2307 Claridge Ct., Lot # 25, Mechanicsburg, Pa $ 1,598.45
1738567 2309 Claridge Ct Lot 26 Mechanicsburg Pa $ 1,598.45
1750116 2211 Eaglesmoor Ln., Lot #10, Mechanicsburg, Pa $ 1,598.45
1868795 2209 Eaglesmoor Ln Lot # 11 Mechanicsburg, Pa $ 1,598.45
1973509 2210 Eaglesmoor Ln Lot # 13 Mechanicsburg, Pa $ 1,598.45
1603885 2214 Eaglesmoor Ln., Lot # 15, Mechanicsburg, Pa $ 1,598.45
1642708 2215 Eaglesmoor Ln., Lot # 8, Mechanicsburg, Pa $ 1,598.45
17084,54 2217 Eaglesmoor Ln., Lot # 7, Mechanicsburg, Pa $ 1,598.46
1852553 2216 Eaglesmoor Ln, Lot # 16, Mechanicsburg, Pa $ 1,598.45
1725700 5001 Pellingham Circle, Lot #1, Mechanicsburg, Pa $ 1,598.45
2093490 5002 Pellingham Circle, Lot # 55, Mechanicsburg Pa $ 1,598.45
1734708 5003 Pellingham Circle, Lot # 2, Mechanicsburg, Pa $ 1,598.45
1965846 5004 Pellingham Circle, Lot # 54, Mechanicsburg, Pa $ 1,598.45
1658726 5005 Pellingham Circle, Lot # 3, Mechanicsburg, Pa $ 1,596.45
1671847 5006 Pellingham Circle, Lot # 53, Mechanicsburg, Pa $ 1,598.45
1663320 5007 Pellingham Circle. Lot #4, Mechanicsburg, Pa $ 1,598.45
1657615 5008 Pellingham Circle. Lot # 52, Mechanicsburg, Pa $ 1,598.45
1577934 50D9 Pellingham Circle, Let #5, Mechanicsburg, Pa $ 1,598.45
1622779 5010 Pellingham Circle, Lot # 51, Mechanicsburg, Pa $ 1,598.45
1622127 5011 Pellingham Circle, Lot #6, Mechanicsburg, Pa $ 1,598.45
1577046 5012 Pellingham Circle, Lot # 50, Mechanicsburg, Pa $ 1,598.45
TOTAL {591,748 6.31
RECORD OF DEPOSIT
Total amount of deposit $ 282,690.00 Amount now to be
Previous refunds to date $ -
Balance unrefunded $ 282,690.00 Refund Approved t
Amount now due $ 59,748.63
Balance of deposit $ 342,438.63
Preparec
WORK ORDER NO., 50030726/50030727/50030729150030732150030733
FINAL MEMORANDUM
This Final Memorandum is executed by the parties hereto under and pursuant to
the provisions of Paragraph THIRD of a certain agreement in writing between the
parties entered into on the 12th day of May, 2003, for the installation by the COMPANY
of a certain water main(s) therein described. It is, therefore agreed and stipulated:
(a) Actual Cost Main(s) $391,990.58
(b) Actual Cost of other facilities $ -0-
(c) Total
(d) Credit Allowance
(i) (a) + (b) Above divided by 8583 L.F.
feet of main $ 45.670
(ii) 35 x = $ 45.67 = 1,598.45
(iii) Number of bona fide prospective
customers to be directly served by extension
-0-
(iv) Product of (i), (ii), and (iii)
(e) Amount of deposit: (c) minus (d)
$391,990.58
$ -0-
$391,990.58
This Final Memorandum shall be attached to the original agreement in
accordance with the provisions of Paragraph THIRD thereof.
Dated: 06110/2003
Date of Deposit
WITNESS:
PENNSYLVANIA-AMERICAN WATER
BY
Mic Salvo, Network Manager Date
WITNESS:
Smith Land & Improvement Corp. Date
ALL AUTHORIZED SIGNATURES MUST BE AN OFFICER OF THE COMPANY(S),
TITLE INCLUDED.
EXHIBIT C
sdd ? t ?
SPECIAL UTILITY SERVICE
THIS AGREEMENT entered into this Q I Z(day of 20 03 , by
and between Pennsylvania American Water hereinafter calle t "COMPANY", and Smith
Land and Improvement, Inc., hereinafter called the "APPLICANT".
WHEREAS, the APPLICANT desires Special Utility Service, as defined in Section 27.1
D(4) of the Company's tariff and as hereinafter described;
NOW THERFORE, this agreement WITNESSETH:
FIRST: THE COMPANY contracts and agrees to construct the facilities needed to
furnish Special Utility Service shown highlighted on the diagram hereto attached and made a part
hereof and described and located as follows:
Purchase material, manufacture and install one (1) pressure booster pumping
station, including all necessary appurtenances, to increase water pressure in
Wentworth Estates,. Hampden Township, Cumberland County, Pennsylvania. The
station will be installed in accordance with COMPANY'S standards and
specifications.
SECOND: It is expressly understood and agreed that if the COMPANY shall be delayed
or prevented from installing facilities hereinabove described because of its failure to secure
construction materials, or for any other causes beyond its control, such failure or delay in
performance shall be excused; provided however, if such failure or delay in performance shall
extend for a period of more than one (1) year from the date thereof, the APPLICANT shall have
the right to cancel and terminate this agreement on thirty (30) days' written notice to the
COMPANY, and t hereafter b oth p arties s hall b e r eiieved o f a 11 d utes and o bligations arising
hereunder. But this right to cancel and terminate by the APPLICANT shall not be invoked if the
COMPANY has received the construction material and the APPLICANT has made the deposit
as hereinafter required, in which event the COMPANY shall have the obligation to prosecute the
work diligently to its completion.
THIRD: The APPLICANT hereby agrees to pay to the COMPANY, upon notice from
the COMPANY that it is prepared and able to go forward with the work provided in Paragraph
First hereof, an amount in cash equal to the Estimated Cost. The Estimated Cost shall be the
estimated cost including material, labor and overheads of the facilities hereinabove described for
providing Special Utility Service.
Upon such written notice, a Preliminary Memorandum in the form attached shall be
prepared and signed by both parties showing the payment required in accordance with foregoing
provisions. Upon completion of the installation of the facilities, a Final Memorandum in the
form attached shall be prepared and signed by both parties showing the payment required based
on the same calculation as set forth above but by using the actual installation cost of the
facilities, for the Estimated Cost. If the payment shown to be due on the Final Memorandum
differs from that shown on the Preliminary Memorandum, the APPLICANT shall pay any
additional amount shown to be due or the COMPANY will refund to the APPLICANT, without
interest, any excess amount shown to have been paid, it being the intent of this agreement that
the payment required shall be based on actual installation cost. If the actual installation cost
exceeds the payment required as shown on the Preliminary Memorandum, the additional amount
of required payment must be made by the APPLICANT to the COMPANY.
FOURTH: The ownership of the facilities installed hereunder shall at all times be with
the APPLICANT, its successors and assigns.
FIFTH: This agreement shall be valid and binding on the COMPANY only when
executed by its duly authorized representative.
SIXTH: This agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the respective parties.
SEVENTH: Any notice given hereunder shall be deemed sufficient if in writing and sent
by registered mail to the COMPANY at 852 Wesley-Drive, Mechanicsburg, PA 17055-4475,
(Address of COMPANY)
and to the APPLICANT at 2700 Water Street P.O. Box 2886, York, PA 17403-9306.
(Address of APPLICANT)
EIGHTH: This agreement is entered into pursuant to the legally established Rules and
Regulations of the COMPANY, and the words, phrases and terms thereof are to be understood
and interpreted in conformity with said Rules and Regulations, which are hereby incorporated
herein by reference.
Executed in triplicate by the parties hereto on the date first above written.
WITNESS: PENNSYLVANIA AMER
By: W. C. Kely' gton
WITNESS:
OL.
Title: Vice President
APPLICANT
BT
Print: /Q/ 1T
Title:
PRELIMINARY MEMORANDUM
This Preliminary Memorandum is executed by the parties hereto under and pursuant to
the provisions chf Paragraph THIRD of a certain agreement in writing between the parties entered
into on the may of Mme- , 20 03 , for the installation by the COMPANY of
certain facilities therein de`scbed. It is, therefore, agreed and stipulated:
(a) Estimated Cost of Facilities $ 35,000
for Special Utility Service
(exclusive of the cost of service
connection and meter).
This Preliminary Memorandum shall be attached to the original agreement in accordance
with the provisions of Paragraph THIRD thereof.
Dated: L, t-(;03
Date of Payment
WITNESS:
WITNESS:
PENNSYLVANIA AMERIC, N WATER
By: ? .?:
W. C. Kelvi on
Title: Vice President
APPLICANT:
By: --fL
Print: /?• ?'• tilC/?? -
Title:
EXHIBIT D
A", Pennsylvania
American Water
August 16, 2006
Smith Land and Improvement Corp.
6375 Mercury Drive
Mechanicsburg, Pennsylvania 17050
Re: Install Booster Station Wentworth Estates, Phase 1
Gentlemen:
Please find enclosed four copies of the Final Memorandum for your Special Utility Service
Agreement Number 50031059. This letter is also to inform you the job was under-estimated
by $25,034.93. I will need to receive the Final Memorandums back with your signature as
well as your payment of $25,034.93 for this project. A fully executed copy of the Final
Memorandum will be returned to you for your records once signed by our office. I have
enclosed a copy of the estimate at the time of the signing of the agreement which shows it
was estimated at $35,000.00.
Should you have any questions regarding this paperwork, please feel free to contact: me at
(570) 830-6557.
Sincerely,
Rosemary Nardone
Administrative Support Representative
Pennsylvania American Water
100 North Pennsylvania Avenue
Wilkes-Barre, Pa 18701
cc: File
RWE O ROUP
SPECIAL UTILITY SERVICE AGREEMENT STATEMENT
Pennsylvania American Water 100 NORTH PENNSYLVANIA AVE., WILKES-BARRE, PA 18701
(NAME OF COMPANY) (LOCATION)
Smith Land and Improvement, Inc. 1112412008
(NAME OF PARTY ENTITLED TO REFUND) Date
6375 Mercury Drive, Mechanicsburg, Pennsylvania 17050
(ADDRESS)
CONTRACT DATE EXPIRATION DAT,? WORK ORDER NO
05/21106 _ n/a 50031059
TERMS OF CONTRACT
BASIS FO R REFUND
Total Revenue
Service No. Account No. LOCATION For Year (Actual Other Basis
Est'd
DEPOSIT ON EXTENSION - $ 35,000.00
DEPOSIT OWED ON BOOSTER STATION - $ 60,034.93
I DIFFERENCE BETWEEN DEPOSIT AND FINAL COST
TOTAL $25,034.93
RECORD OF DEPOSIT
Total amount of original deposit $ 35,000.00 Amount now DUE : s 5,tf34.33j
Previous refunds to date $ - f r
Balance unrefunded $ 35,000.00 Approved by: r
Amount now due $ 25,034.93 } (SR. r )
Balance of deposit $ 60,034.93
.
(..
(FIELD OPS AG )
Prepared by,-
( Admin Suppdrt Rep)
WORK ORDER NO.: 50031059
FINAL MEMORANDUM BOOSTER STATION WENTWORTH ESTATES
This Final Memorandum is executed by the parties hereto under and pursuant to
the provisions of Paragraph THIRD of a certain agreement in writing between the
parties entered into on the 21St day of May, 2003, for the installation by the COMPANY
of a certain water main(s) therein described. It is, therefore agreed and stipulated:
(a) Actual Cost of Facilities for Special Utility Service
(exclusive of the cost of service connection and meter).
$60,034.93
This Final Memorandum shall be attached to the original agreement in
accordance with the provisions of Paragraph THIRD thereof.
Dated: 06/10/2003 PENNSYLVANIA-AMERICAN WATER
Date of Deposit
WITNESS:
BY-
Michael Salvo, Sr. Director Date
WITNESS:
Smith Land & Improvement Corp. Date
Prepared by: L"; L--
Rosemary Nardone, drain Support Date
ALL AUTHORIZED SIGNATURES MUST BE AN OFFICER OF THE COMPANY(S),
TITLE INCLUDED.
P
INVOICE
American Water
P O BOX 922192
Philadelphia, PA 19182.2192
(860777.8426 (Opt 2,0,3,2)
7131109 10130931
rir•;
A 50081975
Smith Land & Improvement Corp
2001 State Rd
Camp Hill PA 17011-5927
Pennsylvania American Water Company
Document . . . . . . . . . Invoice
Date Reference Due Date Remark Amount
-------- ------------- -------- ------------------------------ --------------
07/26/09 10130931 001 08/31/09 BALANCE OWED 50031059 25,034.93
Balance Due
Pennsylvania American Water Company
INVOICE
Pay Upon Recelpt
--------------
25,034.93
Invoice Number: 10130931
Account: 50081975
Invoice Date: 7!31109
Amount Billed 25,034.93
Amount Paid
10130931
Remit to: American Water Capital Corp
PO Box 822192
Philadelphia, PA 19182-2192
i
American
VqZ16'Water
July 10, 2007
Mr. Rick Jordan
Smith Land and Improvement Corp.
6375 Mercury Drive
Mechanicsburg, Pennsylvania 17050
Re: Install Booster Station Wentworth Estates, Phase 1
Dear Mr. Jordan:
Please find enclosed four copies of the Final Memorandum for your Special Utility
Service Agreement Number 50031059. This letter is also to inform you the job was under-
estimated by $25,034.93. The recent meeting that was held in Mechanicsburg regarding
this project verified that all charges are valid and owed. The estimated cost at the time of
the signing of the agreement is only an estimate and at the time of the completion of the
project, the actual costs will be calculated. I will need to receive the Final Memorandums
back with your signature as well as your payment of $25,034.93 for this project. A fully
executed copy of the Final Memorandum will be returned to you for your records once
signed by our office.
Should you have any questions regarding this paperwork, please feel free to contact me
at (570) 830-6557.
Sincerely,
Rosemary Nardone
Administrative Support Representative
Pennsylvania American Water
100 North Pennsylvania Avenue
Wilkes-Barre, Pa 18701
cc: File
SPECIAL UTILITY SERVICE AGREEMENT STATEMENT
Pennsylvania American Water 100 NORTH PENNSYLVANIA AVE., WILKES-BARRE, PA 18701
(NAME OF COMPANY) (LOCATION)
Smith Land and Improvement, Inc. 8/16/2006
(NAME OF PARTY ENTITLED TO REFUND)
Date
6375 Mercury Drive, Mechanicsburg, Pennsylvania 17050
(ADDRESS)
CONTRACT DATE EXPIRATION DATE WORK ORDER NO.
05/21/06 n/a 50031059
TERMS OF CONTRACT
BASIS FOR REFUND
Total Revenue
Service No. Account No. LOCATION For Year (Actual Other Basis
Est'd
DEPOSIT ON EXTENSION - $ 35,000.00
DEPOSIT OWED ON BOOSTER STATION - $ 60,034.93
DIFFERENCE BETWEEN DEPOSIT AND FINAL COST $ (25,034.93)
TOTAL $25,034.93
RECORD OF DEPOSIT
Total amount of original deposit $ 35,000.00 Amount now DUE:
Previous refunds to date $ - Refund approved by:
Balance unrefunded $ 35,000.00
Amount now due $ 25,034.93
Balance of deposit $ 60,034.93
($25,034.93)
(MANAGER)
(MANAGER)
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
BY: HARRY D. MCMUNIGAL, ESQUIRE
IDENTIFICATION NO. 38386
TREEVIEW CORPORATE CENTER
2 MERIDIAN BOULEVARD, SUITE 100
WYOMISSING, PA 19610
(610) 374-8377, (610) 376-3105 (FAX)
hdmcmuniza1(a)bhcb.com
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA AMERICAN WATER COMPANY,
Plaintiff
V.
SMITH LAND & IMPROVEMENT CORPORATION
AND SMITH LAND & IMPROVEMENT, INC.,
Defendants
CERTIFICATE OF SERVICE
NO. 11-2165
I, Harry D. McMunigal, Esquire, hereby certify that a true and correct copy of the foregoing
Complaint was mailed by United States first class mail, postage prepaid upon the following party(ies):
Stephanie DiVittore
Rhoads & Sinon LLP
One South Market Sq., 12th Flr.
P.O. Box 1146
Harrisburg, PA 17108-1146
4(,
H cMunigal, Esquire
CIVIL ACTION - LAW
DATE: 7/i //
PENNSYLVANIA AMERICAN WATER, : IN THE COURT OF COMMON PLEAS
COMPANY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v, CIVIL ACTION - LAW
SMITH LAND & IMPROVEMENT NO
11-2165 -rig;
.
CORPORATION & SMITH LAND &
IMPROVEMENT, INC.
Defendants : -C= `•
NOTICE TO PLEAD
To: Plaintiff Pennsylvania American Water Company
c/o Harry D. McMunigal, Esquire
Bingaman, Hess, Coblentz & Bell, P.C.
Treeview Corporate Center
2 Meridian Boulevard, Suite 100
Wyomissing, PA 19610
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR
A JUDGMENT MAY BE ENTERED AGAINST YOU.
By:
Respectfully submitted,
RHOADS & SINON LLP
?.7-?, '.47,..Z-_
Stephanie E. DiVittore
John M. Coles
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Smith Land &
Improvement Corporation
Stephanie E. DiVittore, Esquire
Attorney I.D. No. 85906
John M. Coles, Esquire
Attorney I.D. No. 87398
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Smith Land &
Improvement Corporation
PENNSYLVANIA AMERICAN WATER,
COMPANY
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
SMITH LAND & IMPROVEMENT
CORPORATION & SMITH LAND &
IMPROVEMENT, INC.
CIVIL ACTION -LAW
NO. 11-2165
Defendants
ANSWER & NEW MATTER OF SMITH LAND & IMPROVEMENT CORPORATION
NOW COMES Defendant Smith Land & Improvement Corporation, by and through its
attorneys, Rhoads & Sinon LLP, and files the following Answer and New Matter stating as
follows:
1. Admitted based on information and belief.
2. Admitted.
3. Denied. It is specifically denied that there is an entity "Smith Land &
Improvement, Inc." organized or existing under the laws of the Commonwealth of Pennsylvania
with a registered office address of 6375 Mercury Drive, Mechanicsburg, Cumberland County,
Pennsylvania 17050. By way of further response, it is believed and averred that although
referenced as "Smith Land & Improvement, Inc." on the Special Utility Service Agreement
attached as Exhibit "C" to Plaintiff's Complaint, this was a typographical or other error and all
dealings with Plaintiff concerning installation of utilities for the property at issue were between
Plaintiff and Smith Land & Improvement Corporation. All references herein to "Smith Land"
are references to Smith Land & Improvement Corporation.
COUNT I - BREACH OF CONTRACT
(Pennsylvania American Water Company v. Smith Land & Improvement Corporation)
4. Smith Land incorporates herein by reference its responses to Paragraphs 1
through 3 above.
5. Admitted in part, denied in part. It is admitted that on or about May 12, 2003,
Plaintiff Pennsylvania American Water Company ("PAWC" or "Plaintiff") and Smith Land
entered into a written agreement entitled Extension Deposit Agreement. wherein PAWC
contracted and agreed to lay a water main on property located in Hampden Township. The
remaining allegations of this paragraph concern the interpretation of a written agreement, a
writing that speaks for itself, and any attempts to interpret the same are specifically denied.
6. Admitted in part, denied in part. It is admitted that on or about May 12, 2003,
Plaintiff and Smith Land executed a Preliminary Memorandum. The remaining allegations of
this paragraph concern the interpretation of a written agreement, a writing that speaks for itself,
and any attempts to interpret the same are specifically denied.
7. Denied. The allegations of this paragraph concern the interpretation of a written
agreement, a writing that speaks for itself, and any attempts to interpret the same are specifically
denied.
8. Admitted in part, denied in part. It is admitted that the project was completed on
August 16, 2006. It is specifically denied that any work was performed pursuant to the
Agreement after August 16, 2006. It is also specifically denied that the total cost for the project
was $342,438.63, or that any amounts are owed to Plaintiff, and specific proof thereof is
demanded at the time of trial. The Extension Deposit Refund Statements and the Final
Memorandum attached as Exhibit "B" are writings that speak for themselves, and any attempt to
interpret the same is specifically denied.
9. Denied. Smith Land is without knowledge regarding the allegations of paragraph
9 and specific proof thereof is demanded at the time of trial.
10. Admitted in part, denied in part. It is admitted that Plaintiff has make requests for
payment. It is specifically denied that Smith Land owes the amounts as demanded by Plaintiff,
and specific proof thereof is demanded at the time of trial.
11. Denied. The allegations of Paragraph 11 are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied.
WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests
that this Court enter judgment in its favor and against Pennsylvania American Water Company
and further requests that this Court award any other relief allowed by law.
COUNT II - UNJUST ENRICHMENT
(Pennsylvania American Water Company v. Smith Land & Improvement Corporation)
12. Smith Land incorporates herein by reference its responses to Paragraphs 1
through 11 above.
13. Denied. Smith Land is without knowledge regarding the allegations of paragraph
13 and specific proof thereof is demanded at the time of trial.
14. Denied. The allegations of Paragraph 14 are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied.
WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests
that this Court enter judgment in its favor and against Pennsylvania American Water Company
and further requests that this Court award any other relief allowed by law.
COUNT III - BREACH OF CONTRACT
(Pennsylvania American Water Company v. Smith Land & Improvement, Inc.)
15. Smith Land incorporates herein by reference its responses to Paragraphs 1
through 14 above.
16. Denied as stated. It is admitted that on or about May 21, 2003, Plaintiff and
Smith Land entered into a Specialty Utilities Services Agreement concerning property known as
Wentworth Estates located in Hampden Township, Cumberland County, Pennsylvania. It is
further admitted that the Special Utility Service Agreement provided installation for a pressure
booster pumping station on the property. It is specifically denied that the Agreement was
between Plaintiff and "Smith Land & Improvement, Inc.", as Smith Land is not aware of any
such entity.
17. Admitted in part, denied in part. It is admitted that on or about May 12, 2003,
Plaintiff and Smith Land executed a Preliminary Memorandum. The remaining allegations of
this paragraph concern the interpretation of a written agreement, a writing that speaks for itself,
and any attempts to interpret the same are specifically denied.
18. Denied. The allegations of this paragraph concern the interpretation of a written
agreement, a writing that speaks for itself, and any attempts to interpret the same are specifically
denied.
19. . Admitted in part, denied in part. It is admitted that the project was completed on
August 16, 2006. It is specifically denied that any work was performed pursuant to the
Agreement after August 16, 2006. It is also specifically denied that the total cost for the project
was $60,034.93, or that any amounts are owed to Plaintiff, and specific proof thereof is
demanded at the time of trial. The Final Memorandum and statements attached as Exhibit "D"
are writings that speak for themselves, and any attempt to interpret the same is specifically
denied.
20. Admitted in part, denied in part. It is admitted that Plaintiff has make requests for
payment. It is specifically denied that Smith Land owes the amounts as demanded by Plaintiff,
and specific proof thereof is demanded at the time of trial.
21. Denied. The allegations of Paragraph 21 are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied.
WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests
that this Court enter judgment in its favor and against Pennsylvania American Water Company
and further requests that this Court award any other relief allowed by law.
COUNT IV - UNJUST ENRICHMENT
(Pennsylvania American Water Company v. Smith Land & Improvement, Inc.)
22. Smith Land incorporates herein by reference its responses to Paragraphs 1
through 21 above.
23. Denied. Smith Land is without knowledge regarding the allegations of paragraph
13 and specific proof thereof is demanded at the time of trial.
24. Denied. The allegations of Paragraph 24 are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied.
WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests
that this Court enter judgment in its favor and against Pennsylvania American Water Company
and further requests that this Court award any other relief allowed by law.
NEW MATTER
25. Any damages sustained by the Plaintiff were as a direct result of Plaintiff's own
acts or omissions and/or as a result of the acts or omissions of third parties, including Plaintiff's
agent(s) or conditions which were beyond the control of Smith Land.
26. There is no causal connection between the damages sought by Plaintiff and any
conduct or omission by Smith Land.
27. Plaintiff's Complaint fails to state a cause of action upon which any relief may be
granted.
28. Plaintiff's claims are barred by waiver.
29. Plaintiff's claims are barred by estoppel.
30. Plaintiff's claims are barred by payment or offset.
31. Plaintiff's claims are barred by the statute of frauds.
32. Plaintiff's claims are barred by laches.
33. Plaintiff's claims are barred by the statute of limitations.
34. Plaintiff has not suffered any damages in this matter and to the extent that
Plaintiff can prove that it has suffered damages, it is solely as a result of his own actions or in-
actions or the actions or in-actions of third parties.
35. To the extent Plaintiff is entitled to recover from Smith Land, which Smith Land
expressly denies, Plaintiff is not entitled to delay damages as set forth in Plaintiff s Complaint.
WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests
that this Court enter judgment in its favor and against Pennsylvania American Water Company
and further requests that this Court award any other relief allowed by law.
Respectfully submitted,
RHOADS & SINON LLP
By:
Stephanie E. DiVittore
John M. Coles
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Smith Land &
Improvement Corporation
.CERTIFICATE OF SERVICE
I hereby certify that on this C? day of July, 2011, a true and correct copy of the
foregoing Answer and New Matter of Smith Land & Improvement Corporation was served by
means of United States mail, first class, postage prepaid, upon the following:
Harry D. McMunigal, Esquire
Bingaman, Hess, Coblentz & Bell, P.C.
Treeview Corporate Center
2 Meridian Boulevard, Suite 100
Wyomissing, PA 19610
Dara Whistler
PENNSYLVANIA AMERICAN WATER COMPANY
vs
SMITH LAND IMPROVEMENT CORPORATION, ET AL
11-2165
Case No c,
STATEMENT OF INTENTION TO PROCEED
To the Court:
PLAINTIFF, Pennsylvania American Water Company intends to proceed with the above captioned matter.
Harry D. McMunigal, Esquire
Print Name Sign Name
Date:
9/ 91/1
Attorney for
Plaintiff
IMPORTANT NOTE
In the event that this is a second or subsequent filing of a Statement of Intention to
Proceed, this matter will be referred to the President Judge for the purpose of
conducting a status conference involving all counsel. The goal of the status
conference will be to set the matter for trial or other final disposition within a time
certain. Prior to the status conference, Counsel will be expected to submit to the
court, in writing, a proposed schedule for the completion of discovery, the filing of
dispositive motions and a report as to whether alternative dispute resolution has
been used or discussed.
CD t