HomeMy WebLinkAbout05-4689IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LETTERMEN, INC. and RICH VALLEY GOLF
Plaintiff
V.
SILVER SPRING TOWNSHIP and SILVER
SPRING TOWNSHIP BOARD OF SUPERVISORS:
t, L4 15 CA(ebs1,00,1
M ta.l,a..?e>lJ tti ?'y. ?2 Deferi ants
No. C5'- yG Sp CL ,a 7Z-
CIVIL ACTION - LAW
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above-captioned action.
Writ of Summons shall be issued and forwarded to ( ) Attorney ( x ) Sheriff
KNIGHT & ASSOCIATES, P.C.
Date: 8 kn?(,a ?diL uc) 51 Ci f
rf Gregory . Knight, Esquire
Attorney I.D. No. 30622
11 Roadway Drive, Suite B
Carlisle, Pennsylvania 17013
(717) 249-5373
WRIT OF SUMMONS
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN
ACTION AGAINST YOU.
Prothonotary Q j,,..\
Date: By??_?i ?h a0
Deputy
O Check here if reverse is issued for additional information.
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Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
Attys for Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
LETTERMEN, INC. and
RICH VALLEY GOLF,
Plaintiffs
NO. 05-4689 Civil Term
V,
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD OF
SUPERVISORS,
Defendants
CIVIL ACTION - LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Kindly enter my appearance on behalf of the Defendants in the above-captioned matter.
Respectfully Submitted,
Lavery, Faherty, Young & Patterson, P.C.
Date: clksb'- By;
Cheryl L. Kovaly, Es e
Attorney for Defend
CERTIFICATE OF SERVICE
I, Diana H. Umbenhauer, an employee with the law firm of Lavery, Faherty, Young &
Patterson, P.C., do hereby certify that on the date listed below, I did serve a true and correct copy
of the foregoing Entry of Appearance upon the following person at the following address by
sending same in the United States mail, first-class, postage-paid:
Gregory H. Knight, Esquire
11 Roadway Drive, Suite B
Carlisle, PA 17013
Attorney for Plaintiffs
Date:
Diana H. Umbenhauer
Secretary to Cheryl L. Kovaly, Esquire
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SHERIFF'S RETURN - REGULAR
CASE NO: 2005-04689 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LETTERMEN INC ET AL
VS
SILVER SPRING TOWNSHIP ET AL
GERALD WORTHINGTON , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
SILVER SPRING TOWNSHIP
the
DEFENDANT , at 1540:00 HOURS, on the 15th day of September, 2005
at 6475 CARLISLE PIKE
MECHANICSBURG, PA 17050 by handing to
SHIRLEY BRANDSLEY, SECRETARY ADULT IN CHARGE
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs
Docketing 18.00
Service 7.20
Postage .37
Surcharge 10.00
.00
35.57
Sworn and /Subscribed to before
me this o? day of
' G.D.
Pr not y
So Answers:
R. Thomas Kline
09/16/2005
KNIGHT & ASSOCIATES
By: 1
Deputy She 'ff
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-04689 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LETTERMEN INC ET AL
VS
SILVER SPRING TOWNSHIP ET AL
GERALD WORTHINGTON , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
SILVER SPRING TOWNSHIP BOARD OF SUPERVISORS the
DEFENDANT , at 1540:00 HOURS, on the 15th day of September, 2005
at 6475 CARLISLE PIKE
MECHANICSBURG, PA 17050
by handing to
SHIRLEY BRANDSLEY, SECRETARY, ADULT IN CHARGE
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this ,? day of
A.D.
Protho otary
So Answers:
R. Thomas Kline
09/16/2005
KNIGHT & ASSOCIATES
By: LldL
Deputy She f
t
Lavery, Faherty, Young & Patterson, P.C. Attys for Defendants
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
LETTERMEN, INC. and IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
SILVER SPRING TOWNSHIP and NO. 05-4689 Civil Term
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
PRAECIPE FOR RULE TO FILE COMPLAINT
To the Prothonotary of Cumberland County:
Please issue a Rule upon the Plaintiffs to file a complaint within twenty (20) days from
service hereof or suffer judgment of non pros.
Lavery, Faherty, Young & Patterson, P.C.
By:
Cheryl L. ovaly, Esqui
Attorney for Defendants
RULE
To the Plaintiffs:
You are hereby ordered and directed to file your Complaint against the Defendants in the
above-captioned matter within twenty (20) days of service of this Rule against you. Failure to so
will result in the entry of a judgment of non pros.
Dated: 1 i 16, /C/ (l r?J l ,:?J ? 11."
Prothonotary "
e **
CERTIFICATE OF SERVICE
I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young &
Patterson, P.C., do hereby certify that on this / day of May, 2006, I served a true and correct
copy of the foregoing Praecipe for Issuance of Rule to File Complaint via U.S. First Class mail,
postage prepaid, addressed as follows:
Gregory H. Knight, Esquire
Knight & Associates
11 Roadway Drive, Suite B
Carlisle, PA 17013
*B1cheA. Morrison
Legal Secretary to Cheryl L. Kovaly
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'ED
C?
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Lavery, Faherty, Young & Patterson, P.C.
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Arty No. PA73693
ckovaly@laverylaw.com
Attys for Defendants
LETTERMEN, INC. and
RICH VALLEY GOLF,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-4689 Civil Tenn
CERTIFICATE OF SERVICE
I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young &
Patterson, P.C., do hereby certify that on this j 77-day of May, 2006, I served a true and correct
copy of the Rule issued by the Prothonotary on May 16, 2006, directing Plaintiffs to File a
Complaint, via U.S. First Class mail, postage prepaid, addressed as follows:
Gregory H. Knight, Esquire
Knight & Associates
11 Roadway Drive, Suite B
Carlisle, PA 17013
13,ta," ?2
B1 e A. Morrison
Legal Secretary to Cheryl L. Kovaly, Esquire
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LETTERMEN, INC. and RICH
VALLEY GOLF, INC.
Plaintiffs
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
V
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 20054689
CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
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 (20) days after this Complaint and Notice are served by
entering a written appearance personally or by attorney and filing in writing with the Court
your defenses or objections to the claims set forth against you. You are warned that if you fail to
do so, the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET
LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
717-249-3166
?I
4
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.
Plaintiffs
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 20054689
CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
COMPLAINT
Plaintiffs, Lettermen, Inc. and Rich Valley Golf, Inc. by their attorneys, Knight & Associates,
P.C., and Broujos & Gilroy, P.C., set forth the following:
1. Plaintiff Lettermen, Inc.. is a Pennsylvania Corporation with offices at 716 North
West Street, Carlisle, Cumberland County, Pennsylvania, 17013.
2. Plaintiff Rich Valley Golf, Inc. is a Pennsylvania Corporation with principal offices at
227 Rich Valley Road, Mechanicsburg, Cumberland County, Pennsylvania, 17050,
and operates under the business name `Rich Valley Golf" and is a subsidiary and
successor in interest and business affiliate with Plaintiff Lettermen, Inc.
3. Defendant Silver Spring Township, 6475 Carlisle Pike, Mechanicsburg, Cumberland
County, Pennsylvania 17055-2391, is a municipality created pursuant to the Second
Class Township Code, 53 P.S. 65101 et seq (the "Township").
4. Defendant Silver Spring Township Board of Supervisors (the "Board") is the current
duly-elected Board of Supervisors of Defendant Silver Spring Township (and with
Defendant Silver Spring Township are collectively referred to as "Defendants" or the
"Township").
5. Plaintiff is the owner of a property of approximately 180 acres, situated in Silver
Spring Township, and bordered by I-81 and Rich Valley Road (hereinafter referred
to as "Property")
6. The Property was re-zoned by the Silver Spring Township Board of Supervisors from
Agricultural (A) to Rural Residential (RR-1) on September 3, 1998.
7. On October 22, 1998, Plaintiff filed a Conditional Use Application to develop the
Property as a golf course.
8. At the time of the Conditional Use Application was filed, the 1995 Zoning Ordinance
of Silver Spring Township (the "Zoning Ordinance") was in effect.
9. Section 202.4 of the 1995 Zoning Ordinance provides for a golf course as a
conditional use in the RR-1 zone.
10. On March 10, 1999, the Board of Supervisors issued a favorable Decision on the
Conditional Use Application subject to certain conditions.
11. Among the Specific Conditions imposed in the March 10, 1999 Decision were the
following:
(4) That the Applicant shall provide a comprehensive traffic analysis of (a) Rich
Valley Road and Wertzville Road, (b) Rich Valley Road and Carlisle Pike, and
(c) Rich Valley Road and all the Feeder Streets located between (a) and (b), in
order to identify and fund road improvements needed to address the increase
of traffic volume caused by the golf course use.
(5) That if warranted by Penn DOT, Applicant shall provide the funds necessary
to improve the roadway and install electric traffic signals at the intersection of
Rich Valley Road and Carlisle Pike. Applicant's funding requirements shall be
reduced by the amount, if any, of prior developer-contributions made
specifically for such purposes at said intersection.
(6) That except for an outside entrance canopy, the proposed adaptation of the
barn structure nearest Rich Valley Road denoted for clubhouse purposes must
be limited and confined to the existing interior dimensions (width, length,
height, area and volume) of said structure and within the "footprint" thereof.
(7) That restaurant and dining facilities of the clubhouse shall not be used for
banquet purposes except in conjunction with principal golf-related activities on
the day of said activities.
12. On April 9, 1999, Plaintiff filed a Land Use Appeal to the Conditional Use Decision
with the Cumberland County Court of Common Pleas, Docket No. 99-2108, Civil.
13. On January 12, 2000, the Honorable President Judge George E. Hoffer issued an
Opinion and Order wherein Condition No. 5, as noted in paragraph 11 above, was
annulled.
14. The Township appealed the January 12, 2000 Order annulling Condition No. 5 to the
Commonwealth Court.
15. Upon motion for re-argument, the Honorable President Judge George E. Hoffer, on
December 29, 2000 issued an Opinion and Order wherein Condition No. 6 was
stricken.
16. On May 11, 2000, Plaintiff and Township entered into a Settlement Agreement (the
"Agreement") wherein Plaintiff agreed to contribute Six Thousand Dollars
($6,000.00) to the Township for the improvement of Rich Valley Road and/or the
improvement and/or signalization of the intersection of Rich Valley Road and Carlisle
Pike, and Township agreed to withdraw its appeal concerning Condition No. 5. A
copy of the Agreement is attached as Exhibit W.
17. Plaintiff filed a Preliminary Land Development Plan with the Township and, by letter
of September 23, 1999, the Township notified the Plaintiff that the Preliminary Land
Development Plan for the golf course project had been approved by the Board on
September 22, 1999.
18. Plaintiff filed a Preliminary Subdivision Plan with the Township and, by letter of
September 23, 1999, the Township notified the Plaintiff that the Preliminary
Subdivision Plan for the golf course had been approved by the Board on September
22, 1999.
19. Plaintiff filed a Final Subdivision Plan with the Township and, by letter of April 27,
2000, the Township notified the Plaintiff that the Final Subdivision Plan for the golf
course had been approved by the Board on April 26, 2000.
20. The Final Subdivision Plan approval of April 26, 2000 was made subject to all
conditions of the Preliminary Plan Approval being addressed before Final Plan
Approval.
21. By letter of September 14, 2001, the Township notified the Plaintiff that the
Township re-approved the Final Subdivision Plan on September 12, 2001.
22. The re-approval of the Final Subdivision Plan was made subject all conditions of the
Preliminary Plan Approval being addressed before the Final Plan Approval.
23. By letter of September 14, 2001, the Township notified the Plaintiff that it re-
approved the Preliminary Subdivision Plan on September 12, 2001 for the golf
course.
24. The Board attached certain conditions to the September 12, 2001 re-approval of the
Preliminary Subdivision Plan including the following:
a. Condition 17 requiring a comprehensive traffic analysis of Rich Valley Road
and certain other roads. This requirement is identical to Conditional Use
condition 4, which condition was stricken by Stipulation of Plaintiff and
Township and incorporated in the Order of this Honorable Court on January
12, 2000.
b. Condition 18 requiring Plaintiff provide for certain roadway improvements
and traffic signalization at Rich Valley Road and Carlisle Pike. This
requirement is identical to Conditional Use condition 5, the subject of the
Agreement and which were annulled by this Honorable Court in its January
12, 2000 Order.
c. Condition 19 limiting the size and dimensions of the proposed clubhouse,
which is identical to Conditional Use condition 6, which was modified by this
Honorable Court in its Order of December 29, 2000.
d. Condition 20 restricting clubhouse use, which restriction is identical to
Conditional Use condition 7, which was modified by this Honorable Court in
its Order of December 29, 2000.
25. Under Docket No. 01-5877, Plaintiff appealed the September 12, 2001 re-approval of
the Preliminary Subdivision Plan because it imposed Conditions 17 through 20, which
either had been stricken or modified by this Honorable Court or settled by agreement
of the parties.
26. By the letter of September 14, 2001, the Township notified the Plaintiff that at the
September 12, 2001 meeting, it re-approved the Preliminary Land Development Plan
for the golf course.
27. Conditions attached to the September 12, 2001 re-approval of the Preliminary Land
Development Plan included the following:
a. Condition 22 requiring Plaintiff to provide a traffic signal, if such signal was
warranted after a traffic study was completed, at Rich Valley Road and
Carlisle Pike, which requirement is part of Conditional Use condition 5, which
was annulled by the January 12, 2000 Order and is the subject to the
Agreement referred to in paragraph 15 above.
b. Condition 24 requiring that all conditions of the Conditional Use must be met,
which requirement is contrary to the aforementioned Court Orders and
Agreement.
c. Condition 38 requiring a comprehensive traffic analysis of Rich Valley Road
and certain other roads, which requirement is identical to Conditional Use
condition 4, which condition was stricken by Stipulation of Plaintiff and
Township incorporated in January 12, 2000 Order.
d. Condition 39 requiring funding for offsite improvements including installation
of traffic signalization on Rich Valley Road and Carlisle Pike, which
requirement is identical to Conditional Use condition 5, which condition was
annulled by the January 12, 2000 Order and is the subject of the Agreement
referred to in paragraph 12 hereof.
e. Condition 40 limiting the size and dimensions of the proposed clubhouse which
is identical to Conditional Use condition 6, which condition was stricken by
this Honorable Court in its Order of December 29, 2000.
f. Condition 41 restricting clubhouse use, which restriction is identical to
Conditional Use condition 7, which was modified by this Honorable Court in
its Order of December 29, 2000.
28. Under Docket No. 01-5876, Plaintiff appealed the September 12, 2001 re-approval of
the Preliminary Land Development Plan because it imposed Conditions 22, 24, 38-41,
which either had been stricken or modified by this Honorable Court or settled by
agreement of the parties.
29. Despite this Honorable Court's Order of January 12, 2000 striking Condition No. 5 of
the Board of Supervisors' Decision on the Conditional Use, the Board again imposed
the same Condition in its re-approval of the Preliminary Subdivision Plan and the
Preliminary Land Development Plan.
30. Despite this Honorable Court's Order of December 29, 2000 striking Condition No. 6
and modifying Condition No. 7, the Board again imposed Condition No. 6 and
imposed Condition No. 7 without the Court's modification in its re-approval of the
Preliminary Subdivision Plan and the Preliminary Land Development Plan.
31. The Township's actions in implementing a condition on the approval of the
mentioned Final Subdivision and Final Land Development Plans, after the Township
had agreed not to implement such a condition in the Land Use process pertaining to
the Property, caused the Plaintiff to have to re-litigate the terms of the Settlement
Agreement and caused the construction of the golf course to be delayed and the
ultimate loss of revenue by the Plaintiff from the course not being in operation. .
32. The "re-approval' conditions re-imposed by the Defendants and previously settled, if
not appealed by the Plaintiffs, would have required a traffic study by PennDOT that
routinely takes at least six months and would have cost the Plaintiffs in excess of
$500,000.00 and other significant expenses if a traffic signal was warranted by the
traffic study.
33. Based on the uncertainty of the timing and conclusion of the PennDOT traffic study
and the cost of "re-approval' conditions that had previously been settled, the
Plaintiffs filed an appeal from the September 14, 2001 decision.
34. On December 5, 2002, the Honorable George Hoffer, President Judge, court of
Common Pleas, Cumberland County, wrote, for a three-judge panel, that the "re-
approval' conditions were either illegal as a matter of law; were resolved via the
Settlement Agreement in May 2000 between the parties; were stipulated to as being
satisfied by previous counsel to the Township; or were modified by previous Orders
of the Court.
35. In his December 5, 2002 decision, Judge Hoffer held that "...Lettermen is correct in
stating that these conditions, which had already been stipulated to, settled, or dealt
with by this Court, are not viable conditions for the Revised Subdivision and Revised
Land Development Plans." -
36. On December 23, 2002, the Defendants appealed the December 5, 2002 decision to
Commonwealth Court.
37. On January 24, 2003, the Defendants withdrew the appeal of the December 5, 2002
decision.
38. The Plaintiff has incurred legal fees, costs, and damages that are the direct and
proximate result of the appeal it had to file to strike the conditions imposed in the
"re-approvals" by the Defendants.
39. The golf course and related facilities as contemplated by Rich Valley Golf were
delayed as a result of the appeal to litigate the Defendants' "re-approvals", and which
delayed the opening of the golf course from the Decisions for the Township on
September 12, 2001 with their "re-approval" of the Plans of the Plaintiffs until
January 24, 2003 when the Defendants withdrew the appeal to the Commonwealth
Court of the December 5, 2002 Decision of the Court of Common Please of
Cumberland County.
40. As a result of the delay set forth in paragraph 39 above, the Plaintiff incurred legal
fees, costs, and damages including carrying costs related to the development, debt
service, costs of maintenance, costs expended on equipment, costs on infrastructure
and administrative costs related to the development, and lost revenue which damages
are in excess of One Million Dollars ($1,000,000.00).
41. As of the date of the filing of this Complaint, the Plaintiffs have invested
approximately Six Million Dollars ($6,000,000.00) in the golf course project.
42. Defendants have at times suggested that the "re-approvals" dated September 14, 2001
were actually "approvals" as noted in correspondence from Defendants dated
December 11, 2002.
43. The Settlement Agreement entered into by the parties as it related to the Conditional
Use Application was entered into by all parties in contemplation of the fact that the
Plaintiffs would be filing a Land Development Plan and Subdivision Plan with respect
to the golf course project once the Conditional Use Permit Application process was
finalized.
44. The Settlement Agreement entered into by the parties prohibited the Defendant from
re-imposing conditions resolved in the Settlement Agreement on any approvals issued
by the Defendants for Plaintiffs' project in connection with Land Development Plan
approval or Subdivision Plan approval.
BREACH OF CONTRACT
45. Paragraphs 1 through 44 are incorporated herein by reference as though fully set
forth.
46. All damages sustained by Plaintiff were the direct and proximate result of the
Defendants' decision to re-impose, as "re-approvals", the same conditions which had
been litigated and settled.
47. The Defendants' September 14, 2001 decisions constituted a breach of the May 14,
2000 Settlement Agreement between the parties.
48. As a result of the Defendants breach of contract (Agreement), Plaintiff has sustained
damages in excess of One Million Dollars ($1,000,000.00), which is in excess of the
compulsory arbitration limit for Cumberland County.
44. Defendant's actions in breaching the terms of the Settlement Agreement and imposing
conditions on the Subdivision approval and Land Development approval for the golf
course project, which conditions Defendants agreed not to impose in the Settlement
Agreement, constituted had faith on the part of the Defendants and was arbitrary and
vexatious.
WHEREFORE, the Plaintiff requests that this Court issue an Order granting it the
following relief:
(a) Damages to be calculated and proven which Plaintiff believes to be
in excess of One Million Dollars ($1,000,000.00);
(b) Judgment against the Defendants for all proven incidental and
consequential damages;
(c) Taxable costs and prejudgment interest and post judgment
interest;
(d) Counsel fees pursuant to 42 Pa. C.S. Section 2503; and
(e) Such other and further relief as this Court may deem proper.
Respectfully submitted:
KNIGHT & ASSOCIATES, P.C.
Gregory H. Knight, Esquire
Attorney ID No. 30622
11 Roadway Drive, Suite B
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
BROUJOS & GILROY, P.C.
Hubert X. Gilroy, E
Attorney ID No. 2 ?94
4 N. Hanover Stre
Carlisle, PA 17013
(717) 243-4574
Attorney for Plaintiff
0 5/ 2 1' ,,c4'994,r
KNA;4T & ASSOCIA?E
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T HiS SEi 1EMENT AGREEMENT (the "Agreement';, made this day of
May, 20100, by and beftveen the TOWNSW1P OZ SILVER SPRING (the "Township"), and
l_E TTFRivir N, INC. (the °0eveloper°).
WITNESSE:TH:
WHEREAS, there presently is pending in the Commonwealth Court of Pennsylvania
at No. 358 C_D. 2000 an appeal of the decision of the Cumberland County Court of
Common Pleas, which annulled Condition 5 of the Conditional Use 'decision CU-98-6 of
the Soard of Supervisors of Silver Spring Township; and
WHEREAS. Condition e, required that ifwarranted by PennDCT, Developer shall
provide the funds necessary to improve tha roadway and install electric traffic signals at
the intersection of Rich Valley Road and Carlisle Pike, which funding requirements would
be reduced by the arnount, if any, cf prior developer contributions rnade specifically for
such purpose at said intersection; and
WHEREAS, both the Township and the Developer acknowiedge that the final
outcome of the aforementioned appeal is uncertain and unpredictaole; and
WHEREAS, the Township and Developer both desire to settle and determine, with
finality, the present appeal in the Commonwealth Courtin a manner which will best serve
the interests of the present and future residents of the Township of Silver Spring
EXHIBIT
11 1
! 4
05/23/206 15:5' 7172430457 VNIGHT R ASSO IATES• FADE 11/27
NOW, THEREFORE, in their mutual effort to settle and determine, with finality, the
aforementioned appeal, the Township and Developer do hereby agree to the following:
1. The Developer shall pay and deliver to the Township, upon approval of a
land development plan for the golf course proposeo by Developer and prior
to its recordation in the Office of the Retarder of Deeds in and for
Cumberland County and prior to the issuance of any permits to construct the
golf course or any portion thereof, cash or check in the sum of six thousand
and no100 dollars ($6,000.00) as its nonrefundable contribution to the
Township to be utilized at the discretion of the Township, for the
improvement of Rich Valley Road and/or the improvement and/or
signaftation of the intersection of Rich Valley Road and Carlisle Pike.
2. Upon execution of this Agreement by Developer and Township, Township
shall file a Praecipe to withdraw the aforementioned appeal.
3, This Agreement sets forth the entire agreement and understanding between
the parties hereto with regard to the settlement of the aforementioned
appeal, and there are no covenants, promises, agreements, conditions or
understandings either oral or written between said parties other than herein
expressly set forth or referenced. No subsequent alteration, amendment,
change or addition to this Agreement shall be binding on any party unless
reduced in writing and signed by all parties.
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4. This Agreement is made for the purposes previously set forth in the
introductory clauses hereof and shall be binding upon the Township, its
successors and assigns, and Developer and its heirs, successors and
assigns.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have hereunto set their hands and seals the day, -r--nth and year first above written.
ATTEST:
Secretary
WITNESS:
TOWNSHIP OF SILVER SPRING
By: vv -??
Chairman
LETTERMEN, INC.
i?. /C,a By:
Presidenfi. 6
3
LETTERMEN, INC. and RICH : IN THE COURT OF COMMON PLEAS
VALLEY GOLF, INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS. : NO. 20054689
SILVER SPRING TOWNSHIP and CIVIL ACTION -LAW
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
VERIFICATION
I verify that the statements 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.
LETTERMEN, INC.
RICH VALLEY GOLF, INC.
DATE: June 20, 2006 BY:
Je tin, President
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.
Plaintiffs
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005-4689
: CIVIL ACTION -LAW
: JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that I am this o[ 1 day of June, 2006, causing a copy of the
Complaint to be served upon the following person in the manner indicated: by First Class
United States Mail, postage pre-paid, on:
Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108
Attorney for Defendant
BROUJOS & GILROY, P.C.
Hubert X. Gilroy, Es ire
Attorney I.D. No. 2,9943
4 North Hanover reet
Carlisle, Pennsylvania 17013
(717) 243-4574
Attorney for Plaintiff
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Lavery, Faherty, Young & Patterson, P.C.
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
LETTERMEN, INC. and
RICH VALLEY GOLF, INC.
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
Attys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-4689 Civil Term
DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
AND NOW, come the Defendants, Silver Spring Township and the Silver Spring
Township Board of Supervisors (hereinafter referred to as "Defendants"), by and through their
counsel, Lavery, Faherty, Young & Patterson, P.C., and raise preliminary objections pursuant to
Pa.R.Civ.P. 1028(a)(4), in response to the complaint filed against them by Lettermen, Inc., and
Rich Valley Golf, Inc. (hereinafter referred to as "Plaintiffs"), and aver as follows:
1. Plaintiffs commenced this action with the filing of a praecipe for writ of summons
on September 8, 2005, pursuant to which a writ of summons was issued the same date.
2. On May 16, 2006, Defendants filed a praecipe for rule to file complaint, pursuant to
which a rule was issued upon Plaintiffs on the same date.
3. Pursuant to an extension of time granted by defense counsel, Plaintiffs filed their
civil complaint on June 21, 2006.
4. Defendants' preliminary objections to the complaint are herein raised pursuant to
Pa.R.Civ.P. 1028(a)(4), which allows for preliminary objections to a complaint that fails to state a
claim or cause of action for which relief may be granted.
5. Defendants respectfully submit that Plaintiffs' complaint fails to state a facially
cognizable claim or cause of action, as a matter of law.
6. The complaint contains one cause of action, for the Defendants' alleged breach of
contract.
7. A viable claim for breach of contract requires that the party alleging the breach
establish: (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3)
damages. J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269 (Pa. Super. 2002).
8. The contract allegedly breached in the instant case was a Settlement Agreement
executed on May 11, 2000 (hereinafter referred to as the "Agreement"), by and between Plaintiff
Lettermen and Defendant Township.
9. The Agreement, a true and correct copy of which is attached to Plaintiffs'
complaint as Exhibit "A," provides, in relevant part, as follows:
WHEREAS, there presently is pending in the Commonwealth
Court of Pennsylvania at No. 358 C.D. 2000, an appeal of the decision of
the Cumberland County Court of Common Pleas, which annulled
Condition 5 of the Conditional Use Decision CI-98-6 of the Board of
Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted by PennDOT,
Developer [Lettermen] shall provide the funds necessary to improve the
roadway and install electric traffic signals at the intersection of Rich
Valley Road and Carlisle Pike...; and
2
WHEREAS, both the Township and Developer [Lettermen]
acknowledge that the final outcome of the aforementioned appeal is
uncertain and unpredictable; and
WHEREAS, the Township and Developer [Lettermen] both desire
to settle and determine with finality, the present appeal in the
Commonwealth Court in a manner which will best serve the interests of
the present and future residents of the Township of Silver Spring.
NOW, THEREFORE, in their mutual effort to settle and
determine, with finality, the aforementioned appeal, the Township and
Developer [Lettermen] do hereby agree to the following:
Developer [Lettermen] shall pay and deliver to the Township, upon
approval of a land development plan for the golf course proposed
by Developer [Lettermen] and prior to its recordation... and prior to
the issuance of any permits to construct the golf course,...the sum
of ..($6,000.00) as its nonrefundable contribution to the
Township ...for the improvement of Rich Valley Road and/or the
improvement and/or signalization of the intersection of Rich Valley
Road and Carlisle Pike.
2. Upon execution of this Agreement by Developer [Lettermen] and
Township, Township shall file a Praecipe to withdraw the
aforementioned appeal.
3. This Agreement sets forth the entire agreement and understanding
between the parties hereto with regard to the settlement of the
aforementioned appeal, and there are no covenants, promises,
agreements, conditions or understandings either oral or written
between said parties other than herein expressly set forth or
referenced. No subsequent alteration, amendment, change or
addition to this Agreement shall be binding on any party unless
reduced in writing and signed by all parties.
4. This Agreement is made for the purposes previously set forth in the
introductory clauses hereof and shall be binding upon the
Township, it successors and assigns, and Developer [Lettermen]
and its heirs, successors and assigns.
(See Exh. "A" to Plaintiffs' complaint).
10. Plaintiffs allege that Defendants breached this Agreement by granting Lettermen's
applications for Final Subdivision and Land Development Plan approval, contingent upon
3
Lettermen's compliance with a condition' that had previously been invalidated when applied to
Lettermen's conditional use approval, and subsequently settled by the parties via the Agreement.
11. Specifically, Plaintiffs argue that:
"The Settlement Agreement entered into by the parties as it related to the
Conditional Use application was entered into by all parties in
contemplation of the fact that the Plaintiffs would be filing a Land
Development Plan and Subdivision Plan with respect to the golf course
project once the Conditional Use Permit Application process was
finalized." (Complaint, ¶ 43);
"The Settlement Agreement entered into by the parties prohibited the
Defendant from re-imposing conditions resolved in the Settlement
Agreement on any approvals issued by the Defendants for Plaintiffs'
project in connection with Land Development Plan approval or
Subdivision Plan approval." (Complaint, ¶ 44);
"The Township's actions in implementing a condition on the approval of
the mentioned Final Subdivision and Final Land Development Plans, after
the Township had agreed not to implement such a condition in the Land
Use process pertaining to the Property, caused the Plaintiff to have to re-
litigate the terms of the Settlement Agreement..." (Complaint, 13 1).
(See Plaintiffs' complaint, IT 43, 44 and 31).
12. Defendants respectfully submit that a plain reading of the Agreement clearly
refutes Plaintiffs' arguments.
13. Initially, the Agreement addressed only the Township's appeal of the trial court's
invalidation of Condition 5, with respect to Lettermen's Conditional Use approval.
14. The terms of the Agreement do not support Plaintiffs' contention that, in executing
the Agreement, Defendants "had agreed not to implement such a condition [requiring Lettermen
' Plaintiffs allege that the Defendants breached the Agreement by approving the Final Plan applications contingent
upon Plaintiffs' compliance with four (4) conditions. These conditions included: (1) Condition 4, which required
Lettermen to conduct a comprehensive traffic study; (2) Condition 5, which required Lettermen to fund roadway
improvements and/or signalization; (3) Condition 6, which limited the size of the proposed Clubhouse to the footprint
of an existing structure on the Property; and (4) Condition 7, which limited the use of Clubhouse diningibanquet
facilities to golf-related activities. Defendants note that onlv Condition 5, as applied to the Conditional Use
approval, was the subject of the Agreement.
4
to contribute toward roadway/intersection improvements] in the Land Use process pertaining to
the Property." (See Complaint, 13 1).
15. The express terms of the Agreement required Lettermen to contribute the sum of
$6,000 "for the improvement of Rich Valley Road and/or the improvement and/or signalization of
the intersection of Rich Valley Road and Carlisle Pike," to be paid "upon approval of a land
development plan for the golf course ...and prior to its recordation in the Office of the Recorder of
Deeds ...", in consideration for the Township's withdrawal of its Commonwealth Court appeal.
(Agreement, 11).
16. Prior to the approval of Lettermen's Final Land Development Plane for the golf
course, Lettermen's obligation to make the $6,000 contribution arising from its Conditional Use
approval was not yet ripe. However, at no time was Lettermen's obligation to contribute funding
for roadway and/or intersection improvements and/or signalization waived, either via operation of
the Agreement or via any other mechanism.
17. Moreover, by conditioning the approval of Lettermen's Final Subdivision and
Land Development Plan applications upon Lettermen's funding of roadway and/or intersection
improvements and/or signalization, Defendants in no way breached the terms of the Agreement.
18. The only duty imposed upon the Township via the Agreement was the duty to
withdraw its Commonwealth Court appeal upon Lettermen's execution of the Agreement, in
consideration for Lettermen's promise to contribute $6,000 toward roadway and/or intersection
improvements and/or signalization in the future.
19. As indicated on the face of the Agreement, Lettermen executed the Agreement on
May 11, 2000. (See Exh. "A" to Plaintiffs' complaint).
2 Only Final Land Development Plans are recorded with the Recorder of Deeds; preliminary plan approvals are not
filed of record.
5
20. The Township filed a praecipe for discontinuance of its appeal on May 16, 2000.
(See the Pennsylvania Commonwealth Court's docket entries for No. 358 C.D. 2000, true and
correct copies of which are attached hereto as Exhibit "A.")
21. Contrary to the complaint averments, it is apparent that the Defendants fully
complied with the only duty imposed upon them by to the Agreement, and did not breach the
contract, as alleged in the complaint.
22. Plaintiffs' attempts to impose additional duties upon Defendants, with respect to
matters at issue in Conditions 4, 6 and 7 of the Conditional Use approval and subsequently at
issue in the approvals of Lettermen's Subdivision and Land Development plans, must fail.
23. These Conditions were not referenced in or made a part of the Agreement, which
involved only the Township's appeal of the trial court's annulment of Condition 5.
24. The validity or invalidity of Conditions 4, 6 and/or 7 were not issues pending
before the Commonwealth Court at No. 358 C.D. 2000, which was limited to the validity of
Condition 5 as applied to Lettermen's Conditional Use approval.
25. The Agreement expressly states that:
This Agreement sets forth the entire agreement and understanding between
the parties hereto with regard to the settlement of the aforementioned
appeal, and there are no covenants, promises, agreements, conditions or
understandings either oral or written between said parties other than herein
expressly set forth or referenced...
(Complaint, Exh. "A," ¶ 3).
26. Pursuant to the foregoing provision of the Agreement, which is clear and
unambiguous, the Agreement between the parties was limited to resolution of the Commonwealth
Court appeal, and involved only the Township's duty to withdraw its appeal, in consideration for
Lettermen's promise to contribute the sum of $6,0000 to the Township for roadway and/or
6
intersection improvements and/or signalization upon approval of the Final Land Development
Plan.
27. Because the Township undisputedly complied with the solitary duty imposed upon
it pursuant to the clear and unambiguous terms of the Agreement, Plaintiffs' breach of contract
claim must fail.
WHEREFORE, for the foregoing reasons and for the reasons set forth in their supporting
brief, Defendants Silver Spring Township and Silver Spring Township Board of Supervisors
respectfully pray that their preliminary objections be sustained, and the complaint dismissed with
prejudice.
DATE: /Z &I
Respectfully submitted,
Lavery, Faherty, Young & Patterson, P.C.
By:
-e hj?
Cheryl L. ovaly, Esquire
225 Market Street, Suite 30
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
Attys for Defendants
7
8:33 A.M.
Commonwealth Docket Sheet
Commonwealth Court of Pennsylvania
Docket Number: 358 CD 2000
Page 1 of 5
July 3, 2006
Letterman, Inc.
V.
Township of Silver Spring
and
Lester S. Miller, at al
Appeal of. Township of Silver Spring
Initiating Document: Notice of Appeal
Case Status: Closed
Case Processing Status: May 16, 2000 Completed
Journal Number.
Case Category: Civil CaseType: Zoning/Land Use
Consolidated Docket Nos.:
Related Docket Nos.:
Appellant Township of Silver Spring
Pro Se:
IFP Status: No
Attorney: Stine, Steven Allen
Law Firm: James, Smith, Dietterick & Connelly LLP
Address: 134 Sipe Ave
PO Box 650
Hershey, PA 17033-0650
Phone No.: (717)533-3280
COUNSEL INFORMATION
Appoint Counsel Status:
Appellee Letterman, Inc.
Pro Se: Appoint Counsel Status:
IFP Status:
Attorney: Bowman, C. Grainger
Law Firm: Powell, Trachtman, Logan, Carrie & Lombardo, P.C.
Address: Fifth Floor
114 North Second Street
Harrisburg, PA 17101
PALMS Web Docket Sheet
Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets.
!Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors
or omissions on these web docket sheets.
71=006
5172
8:33 A.M.
Commonwealth Docket Sheet Commonwealth Court of Pennsylvania
Docket Number: 358 CD 2000
Page 2 of 5
July 3, 2006
Phone No.: (717)238-9300
Appellee Letterman, Inc.
Pro Se: Appoint Counsel Status:
IFP Status:
Attorney: Fishman, Steven Jay
Law Firm: Salzmann, DePaulis & Fishman, P.C.
Address: 95 Alexander Spring Rd Ste 3
Carlisle, PA 17013
Phone No.: (717)249-6333
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: January 12, 2000 Judicial District: 9
Date Documents Received: February 14, 2000 Date Notice of Appeal Filed: February 11, 2000
Order Type: Order
Judge: Hoffer, George E.
President Judge
Lower Court Docket No.: 99-2108
ORIGINAL RECORD CONTENTS
Original Record Item
Record and Exhibits
Date of Remand of Record:
Filed Date
April 6, 2000
Content/Description
1
BRIEFING SCHEDULE
PACMS Web Docket Sheet
Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets.
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors
or omissions on these web docket sheets.
7!3/2008
5172
' , 8:33 A.M.
Commonwealth Docket Sheet
Docket Number: 358 CD 2000
Page 3 of 5
Commonwealth Court of Pennsylvania
July 3, 2006
Appellant
Brief
Township of Silver Spring
Due: May 16, 2000
Reproduced Record
Township of Silver Spring
Due: May 16, 2000
PACMS Web Docket Sheet
Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets.
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors
or omissions on these web docket sheets.
7/3/2008
5172
• 8:33 A.M.
Commonwealth Docket Sheet Commonwealth Court of Pennsylvania
Docket Number: 358 CD 2000
It 'at
Page 4 of 5
July 3, 2006
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Partv TVDe Filed By
February 11, 2000 Notice of Appeal Filed
Notice of Appeal
Appellant Township of Silver Spring
February 22, 2000 Notice Exited
Commonwealth Court Filing Office
March 3, 2000 Docketing Statement Filed
Filed by Steven A. Stine and Statement of Issues
Appellant Township of Silver Spring
April 6, 2000 Trial Court Record Received
Lower Court or Agency
May 16, 2000 Praecipe for Discontinuance
Appellant Township of Silver Spring
May 16, 2000 Notice of Discontinuance
Hostutler, Charles R.
May 16, 2000 Discontinued
Hostutler, Charles R.
May 16, 2000 Remitted
Commonwealth Court Filing Office
PACMS Web Docket Sheet
Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets.
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors
or omissions on these web docket sheets.
7!3/4006
5172
i • • 8:33 A.M.
Commonwealth Docket Sheet
Commonwealth Court of Pennsylvania
Docket Number: 358 CD 2000
Page 5 of 5
July 3, 2006
DISPOSITION INFORMATION
Related Journal Number.
Disposition Category:
Disposition:
Dispositional Comments:
Disposed Before Decision
Discontinued
Judgment Date:
Disposition Author:
Disposition Date:
5/16/2000
Hostutler, Charles R.
5/16/2000
Dispositionai Filing:
Filed Date:
Reargument/Reconsideration Filed Date:
Reargument Disposition:
Record Remitted:
Author:
REARGU MENT/RECONSIDE RATION/REMITTAL
Date:
PACMS Web Docket Sheet
Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets.
Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors
or omissions on these web docket sheets.
7/3/2008
5172
CERTIFICATE OF SERVICE
I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young &
Patterson, P.C., do hereby certify that on this day of July, 2006, I served a true and correct
copy of the foregoing Preliminary Objections via U.S. First Class mail, postage prepaid,
addressed as follows:
Gregory H. Knight, Esquire
Knight & Associates
11 Roadway Drive, Suite B
Carlisle, PA 17013
Co-Counsel for Plaintiffs
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
Co-Counsel for Plaintiffs
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the A. Morrison
Le al Secretary to Cheryl L. Kovaly
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LETTERMEN, INC. and RICH
VALLEY GOLF, INC.
Plaintiffs
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005-4689
CIVIL ACTION -LAW
PLAINTIFFS' ANSWER TO DEFENDANTS' PRELIMINARY OBJECTIONS
Plaintiffs, Lettermen, Inc. and Rich Valley Golf, Inc. by their attorneys, Broujos &
Gilroy, P.C., and Knight & Associates, P.C., set forth the following in response to the
allegations set forth in the Preliminary Objections filed by Defendants:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Defendants' allegation is a conclusion of a law and a responsive pleading is not
required.
6. Admitted.
7. Defendants' allegation is a conclusion of a law and a responsive pleading is not
required.
8. Admitted.
9. The Agreement speaks for itself and the entire Agreement must be considered by the
Court. Denied that there are any "relevant" parts of the Agreement as limited by the
allegations set forth in this paragraph.
10. Denied. The Agreement contemplated that Defendant would not impose any further
conditions upon Plaintiffs relative to any traffic study or any roadway improvements.
Contrary to the suggestion made in footnote 1 of this paragraph, it is Plaintiffs'
position that Condition 4 and Condition 5 apply to the Conditional Use Approval and
was the subject of the Agreement.
11. Admitted that Defendant has correctly reiterated the allegations set forth in
paragraphs 31, 43 and 44 of Plaintiffs' Complaint.
12. Defendants' allegation is a conclusion of law and does not require a responsive
pleading.
13. Admitted in part and denied in part. Admitted that the Agreement related to an
appeal of Plaintiffs' Conditional Use Approval. However, the clear terms and plain
reading of the Agreement suggest that it contemplated future filing by the Plaintiffs of
a Land Development Plan and Subdivision Plan and that the terms of the Agreement
would apply to those future filings.
14. Denied. On the contrary, the terms of the Agreement contemplated that Plaintiffs
would be filing future Land Development and Subdivision applications and that the
terms of the Agreement would be incorporated into those future filings.
15. Admitted.
16. Admitted in part and denied in part. Admitted that Plaintiffs' obligation to make a
$6,000 contribution to the Township was not ripe until Plaintiffs' Land Development
Plan was approved and to be recorded. Denied that there was not a waiver of any
further obligation on Plaintiffs' part to contribute funding for roadway and/or
intersection improvements. On the contrary, the Agreement resolved Plaintiffs'
obligations relative to the improvements and/or signalization of the intersection of
Rich Valley Road and Carlisle Pike or for the requirement of payment toward traffic
impact study fees relating to the intersection of Rich Valley Road and Carlisle Pike.
17. Denied. Defendants breached the terms of the Agreement by again trying to impose a
condition in the Subdivision and Land Development Plan approvals that Defendants
had previously agreed would not be imposed.
18. Denied. On the contrary, the Agreement contemplated the filing of a Subdivision and
Land Development Plan by the Plaintiffs and the incorporation of the terms of the
Agreement in those plans. Pursuant to the Agreement, the Township had an
affirmative duty to accept $6,000 from Plaintiffs toward roadway and/or intersection
improvements and/or signalization at the intersection of Rich Valley Road and
Carlisle Pike, and the Township had a further duty not to impose any additional
conditions on the Plaintiffs in the Subdivision and Land Development process that
related to improvements or signalization at the intersection of Rich Valley Road and
Carlisle Pike.
19. Admitted.
20. Admitted.
21. Denied. Said allegation is a conclusion of law and no responsive pleading is required.
22. Denied. Said allegation is a conclusion of law and no responsive pleading is required.
23. Denied. Plaintiffs are unaware as to what Defendant means in suggesting "these
conditions". By way of further answer, the Agreement contemplated any conditions
the Township may attempt to impose relative to signalization and road improvements
relating to the intersection of Rich Valley Road and Carlisle Pike.
24. Denied that Condition 4 was not before the Commonwealth Court. As Condition 4
would relate to any traffic study pertaining to the intersection of Rich Valley Road
and the Carlisle Pike, Condition 4 was part and parcel of the Agreement and the
Appeal.
25. Admitted that the allegation correctly recites a portion of the Agreement.
26. Denied. The Agreement contemplated and in a clear and unambiguous manner bound
the parties to terms whereby the Plaintiffs would make a payment of $6,000 to the
Township and the Township, in return, would not require any further studies,
payments or contributions from the Plaintiffs for any matters relating to
improvements or signalization of the intersection of Rich Valley Road and the Carlisle
Pike.
27. Denied. The Township did not comply with its duty under the Agreement in that the
Township breached the Agreement by attempting to impose requirements on the
Plaintiffs to fund a traffic study and to perform improvements and signalization at
the intersection of Rich Valley Road and the Carlisle Pike over and above the $6,000
payment Plaintiffs and Defendants had agreed would be paid.
WHEREFORE, Plaintiffs request your Honorable Court to dismiss the Preliminary
Objections filed in this case.
Respectfully submitted:
BROUJOS & GILROY, P.C.
Hubert
4 N.
/Gilroy, Esquire
ID No. 29943
over Street
Carlisle, PA 17013
(717) 243-4574
Attorney for Plaintiffs
KNIGHT & ASSOCIATES, P.C.
Gregory H. Knight, Esquire
Attorney ID No. 30622
11 Roadway Drive, Suite B
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiffs
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.
Plaintiff
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 20054689
CIVIL ACTION -LAW
CERTIFICATE OF SERVICE
I hereby certify that I am this ? day of July, 2006, causing a copy of the
Answer to be served upon the following person in the manner indicated: by First Class
United States Mail, postage pre-paid, on:
Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108
Attorney for Defendant
BROUJOS & GILROY, P.C.
4
u146bert X. Gilr ,Esquire
Attorney I. o. 29943
4 North Hanover Street
Carlisle, Pennsylvania 17013
(717) 2434574
Attorney for Plaintiffs
I verify that the statements in the foregoing pleading are true and correct. I
understand that false statements herein are made subject to the penalties of 18 PaCS
4904 relating to unsworn falsification to authorities.
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LETTERMAN, INC. and RICH
VALLEY GOLF, INC.,
Plaintiff
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION -LAW
NO. 20054689
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
1. State matter to be argued: Defendant's Preliminary Objections.
2. Identify counsel who will argue case:
a) For Plaintiff: Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
b) For Defendant: Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: September 6, 2006
Dated: July 26, 2006
Hub X. Gilroy, Esquire
Bro jos & Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
(717) 2434574
ID #29943
Attorney for Plaintiff
c
LETTERMEN, INC. AND IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, INC., CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
SILVER SPRING TOWNSHIP AND
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
DEFENDANTS 05-4689 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND EBERT, J.
ORDER OF COURT
AND NOW, this 'ZO day of September, 2006, the preliminary objection of
defendants to plaintiffs' complaint, ARE DISMISSED.
By the Court,
Edgar B. Bayley, J.
, , ubert X. Gilroy, Esquire
For Plaintiffs
,,dheryl L. Kovaly, Esquire
For Defendants y
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LETTERMEN, INC. AND : IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, INC., CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
SILVER SPRING TOWNSHIP AND
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
DEFENDANTS 05-4689 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., September 20, 2006:--
On June 21, 2006, plaintiffs, Lettermen, Inc., and Rich Valley Golf, Inc., filed a
complaint against defendants, Silver Spring Township and Silver Spring Township
Board of Supervisors. Plaintiffs aver that Rich Valley Golf, Inc. operates under the
business name "Rich Valley Golf"and is a subsidiary and successor in interest and
business affiliate with Lettermen, Inc. Lettermen, Inc., obtained the approvals in Silver
Spring Township, Cumberland County, to build a golf course and related facilities. On
March 10, 1999, the Township approved a conditional use application with several
conditions. Condition 5 required Lettermen to fund roadway improvements and install
electric traffic signals at the intersection of Rich Valley Road and Carlisle Pike. The
cost would have exceeded $500,000. Lettermen filed a land use appeal in this court
challenging some of the conditions, including Condition 5. On January 12, 2000, an
05-4689 CIVIL TERM
order was entered annulling Condition 5. The Township filed an appeal to the
Commonwealth Court of Pennsylvania. The appeal was withdrawn following the
execution of a Settlement Agreement on May 14, 2000, which provides:
WHEREAS, there presently is pending in the Commonwealth
Court of Pennsylvania at No. 358 C.D. 2000 an appeal of the decision of
the Cumberland County Court of Common Pleas, which annulled
Condition 5 of the Conditional Use Decision CU-98-6 of the Board of
Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted by
PennDOT, Developer shall provide the funds necessary to improve
the roadway and install electric traffic signals at the intersection of
Rich Valley Road and Carlisle Pike, which funding requirements
would be reduced by the amount, if any, of prior developer
contributions made specifically for such purposes at said
intersection; and
WHEREAS, both the Township and the Developer acknowledge
that the final outcome of the aforementioned appeal is uncertain and
unpredictable; and
WHEREAS, the Township and Developer both desire to settle
and determine, with finality, the present appeal in the Commonwealth
Court in a manner which will best serve the interests of the present and
future residents of the Township of Silver Spring.
NOW, THEREFORE, in their mutual effort to settle and determine,
with finality, the aforementioned appeal, the Township and Developer do
hereby agree to the following:
1. The Developer shall pay and deliver to the Township,
upon approval of a land development plan for the golf course
proposed by Developer and prior to its recordation in the Office of the
Recorder of Deeds in and for Cumberland County and prior to the
issuance of any permits to construct the golf course or any portion thereof,
cash or check in the sum of six thousand and no/00 dollars ($6,000.00)
as its nonrefundable contribution to the Township to be utilized at
the discretion of the Township, for the improvement of Rich Valley
Road and/or the improvement and/or signalization of the intersection
of Rich Valley Road and Carlisle Pike.
2. Upon execution of this Agreement by Developer and
Township, Township shall file a Praecipe to withdraw the aforementioned
appeal.
3. This Agreement sets forth the entire agreement and
-2-
05-4689 CIVIL TERM
understanding between the parties hereto with regard to the settlement of
the aforementioned appeal, and there are no covenants, promises,
agreements, conditions or understandings either oral or written between
said parties other than herein expressly set forth or referenced. No
subsequent alternation, amendment, change or addition to this
Agreement shall be binding on any party unless reduced in writing and
signed by all parties.
4. This Agreement is made for the purposes previously set
forth in the introductory clauses hereof and shall be binding upon the
Township, its successors and assigns, and Developer and its heirs,
successors and assigns. (Emphasis added.)
On September 14, 2001, the Township re-approved Lettermen's preliminary
subdivision plan and land development plan. The re-approvals were made subject to
the same conditions attached to the conditional use approval of March 10, 1999.
Lettermen filed land use appeals in this court challenging both re-approved plans. On
December 5, 2002, an order of relief was entered that provided that the conditions
already dealt with by the court are not viable conditions for the revised subdivision and
revised land development plans.
Plaintiffs seek monetary damages, alleging that "The Defendants' September
14, 2001 decisions [the re-approvals] constituted a breach of the May 14, 2000
Settlement Agreement between the parties."' Defendants filed preliminary objections in
the form of a demurrer to the complaint that were briefed and argued on September 6,
2006. A demurrer tests the legal sufficiency of the complaint. Vulcan v. United of
' The damages sought are legal fees, costs, carrying costs, debt service, maintenance,
equipment, infrastructure, administrative costs and lost revenue related to the additional
litigation and delay in the development of golf course and facilities.
-3-
05-4689 CIVIL TERM
Omaha Life Insurance Company, 715 A.2d 1169 (Pa. Super. 1998). All material facts
set forth in the complaint as well as all inferences, reasonably deducible therefrom are
admitted as true for the purposes of review. Id. The question presented by the
demurrer is whether, on the facts averred, the law says with certainty that no recovery is
possible. Id. Where any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the demurrer. Id.
Noting that the Settlement Agreement does not explicitly prohibit further
imposition of Condition 5, defendants maintain, as a matter of law, that plaintiffs do not
aver a legally cognizable breach of the Settlement Agreement of May 14, 2000. In Hart
v. Arnold, 884 A.2d 316 (Pa. Super. 2005), the Superior Court of Pennsylvania stated:
To successfully maintain a cause of action for breach of contract
the plaintiff must establish: (1) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the contract, and (3)
resultant damages. Gorski v. Smith, 812 A.2d 683 (Pa.Super.2002),
appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (citing Corestate Bank,
N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999)).
The fundamental rule in interpreting the meaning of a contract is to
ascertain and give effect to the intent of the contracting parties.
The intent of the parties to a written agreement is to be regarded as
being embodied in the writing itself. The whole instrument must be
taken together in arriving at contractual intent. Courts do not
assume that a contract's language was chosen carelessly, nor do
they assume that the parties were ignorant of the meaning of the
language they employed. When a writing is clear and unequivocal,
its meaning must be determined by its contents alone.
Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777
A.2d 418, 429 (2001) (internal citations and quotation marks omitted). "In
ascertaining the intent of the parties to a contract, it is their outward and
objective manifestations of assent, as opposed to their undisclosed and
subjective intentions, that matter." Espenshade v. Espenshade, 729 A.2d
1239, 1243 (Pa.Super.1999). Further, "specific, express written language
is not necessary for a particular contractual intent to exist in an
-4-
05-4689 CIVIL TERM
agreement. Rather, it is common for the intent of contracting parties to be
inherent in the totality of their contract." Murphy, supra at 596, 777 A.2d
at 432. "In the absence of an express provision, the law will imply an
agreement by the parties to a contract to do and perform those things that
according to reason and justice they should do in order to carry out the
purpose for which the contract was made and to refrain from doing
anything that would destroy or injure the other party's right to receive the
fruits of the contract." Slater v. Pearle Vision Center, Inc., 376 Pa.Super.
580, 546 A.2d 676, 679 (1988) (describing what is known as "doctrine of
necessary implication"). "The meaning of an unambiguous written
instrument presents a question of law for resolution by the court."
Murphy, supra at 591, 777 A.2d at 430.
In Slater v. Pearle Vision Center, Inc., 376 Pa. Super. 580 (1988), the Superior
Court stated:
Thus, where it is clear that an obligation is within the contemplation of the
parties at the time of contracting or is necessary to carry out their
intentions, the court will imply it. Gallagher v. Upper Darby Township, 114
Pa.Commw. 463, 539 A.2d 643, 467 (1988). This is true even where the
contract itself is not ambiguous. Id.; [Frickert v. Deiter Bros. Fuel Co.,
Inc., 464 Pa. 596 (1975)]. Since the doctrine of necessary implication
serves not to instruct the court as to which of two possible interpretations
of a contract should be adopted, but rather to allow the court to enforce
the clear intentions of the parties and avoid injustice, the court does not
need to find an ambiguity before it will employ the doctrine.
In the case sub judice, the specific terms of the Settlement Agreement between
Lettermen, Inc., and Silver Spring Township, which are not ambiguous, provided for the
withdrawal of the appeal and a $6,000 payment "to be utilized at the discretion of the
Township, for the improvements of Rich Valley Road and/or the improvement
and/or signalization of the intersection of Rich Valley Road and Carlisle Pike,"
bringing finality to the dispute over Condition 5 that was annulled by an order of court,
and which became final when the appeal was withdrawn. Based on the above cited
-5-
05-4689 CIVIL TERM
law, plaintiffs have averred facts in support of a cause of action, which if proven, could
constitute a breach by the Township of the Settlement Agreement by its reinstatement
of Condition 5 in the preliminary subdivision plan and land development plan.
Therefore, the following order is entered.
ORDER OF COURT
AND NOW, this ?? day of September, 2006, the preliminary objection of
defendants to plaintiffs' complaint, ARE DISMISSED.
By the Court,
l 1
L AIA
Edgar B. Bayley, J.
Hubert X. Gilroy, Esquire
For Plaintiffs
Cheryl L. Kovaly, Esquire
For Defendants
:sal
-6-
Lavery, Faherty, Young & Patterson, P.C. Attys for Defendants
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw. com
LETTERMEN, INC. and : IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, Inc., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
SILVER SPRING TOWNSHIP and NO. 05-4689 Civil Term
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
NOTICE TO PLEAD
To: Lettermen, Inc. and Rich Valley Golf, Inc.,
c/o Greg H. Knight, Esquire and Hubert X. Gilroy, Esquire
You are hereby notified to file a written response to the enclosed Answer with New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
Lavery, Faherty, Young & Patterson, P.C.
Date: L By:
Cheryl L. ovaly, Esquire
Attorney for Defendants
Lavery, Faherty, Young & Patterson, P.C.
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
Attys for Defendants
LETTERMEN, INC. and
RICH VALLEY GOLF, Inc.,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
CIVIL ACTION - LAW
NO. 05-4689 Civil Term
DEFENDANTS' ANSWER WITH NEW MATTER TO
PLAINTIFFS' COMPLAINT
AND NOW, come the Defendants, Silver Spring Township and the Silver Spring
Township Board of Supervisors (hereinafter, "Defendants"), by and through their counsel, Lavery,
Faherty, Young & Patterson, P.C., and provide their answer to the civil complaint filed by
Lettermen, Inc. ("Lettermen") and Rich Valley Golf, Inc. ("RVG") (collectively referred to as
"Plaintiffs"), and aver as follows:
1. Admitted, upon information and belief.
2. Admitted in part. Denied in part. It is admitted only that RVG is, upon information
and belief, a Pennsylvania corporation operating from the address alleged. The remaining
averments of this paragraph are denied in that, after reasonable investigation, Defendants are
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
2
without knowledge or information sufficient to form a belief as to the veracity of the alleged
business relationship between RVG and Lettermen, and strict proof thereof is demanded.
3. Admitted.
4. Admitted.
5. Admitted in part. Denied in part. It is admitted only that Letterman and/or RVG
are believed to have an ownership interest in the Property, as described in this paragraph. The
remaining averments of this paragraph are denied in that the complaint does not specify which
Plaintiff is alleged to own the Property and, after reasonable investigation, Defendants are without
knowledge or information regarding the nature of ownership interest existing by and between the
two corporate Plaintiffs sufficient to form a belief as to the veracity of averments as pled. Strict
proof is demanded.
6. Admitted.
7. Admitted with clarification. It is admitted only that Plaintiff Lettermen filed the
referenced application.
8. Admitted.
9. Denied as stated. The Zoning Ordinance is a writing that speaks for itself in its
entirety and any characterizations, descriptions, or selective references to same are denied to the
extent that they are inconsistent with the full, complete and actual content of the document.
10. Admitted.
11. Admitted in part. Denied in part. It is admitted that a decision was issued on March
10, 1999. The March 10, 1999 Decision is a writing that speaks for itself in its entirety and any
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
3
12. Admitted with clarification. It is admitted only that Plaintiff Lettermen filed the
referenced appeal.
13. Admitted in part. Denied in part. It is admitted that an Opinion and Order were
issued on January 12, 2000. The January 12, 2000 Opinion and Order are writings that speak for
themselves in their entireties and any characterizations, descriptions, or selective references to
same are denied to the extent that they are inconsistent with the full, complete and actual content
of the documents.
14. Admitted.
15. Admitted in part. Denied in part. It is admitted that an Opinion and Order were
issued December 29, 2000. The December 29, 2000 Opinion and Order are writings that speak for
themselves in their entireties and any characterizations, descriptions, or selective references to
same are denied to the extent that they are inconsistent with the full, complete and actual content
of the documents.
16. Admitted in part. Denied in part. It is admitted that the Township and Lettermen
entered into a Settlement Agreement on May 11, 2000, and that a copy of the Agreement is
attached to the complaint.. The May 11, 2000 Settlement Agreement is a writing that speaks for
itself in its entirety and any characterizations, descriptions, or selective references to same are
denied to the extent that they are inconsistent with the full, complete and actual content of the
document.
17. Admitted in part. Denied in part. It is admitted that Lettermen filed a Preliminary
Land Development Plan and that the Township issued a letter pertaining to same dated September
23, 1999. The September 23, 1999 letter is a writing that speaks for itself in its entirety and any
4
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
18. Admitted with clarification. It is admitted only that Plaintiff Lettermen filed the
referenced Preliminary Subdivision Plan.
19. Admitted with clarification. It is admitted only that Plaintiff Lettermen filed the
referenced Final Subdivision Plan, and that the Township issued a letter pertaining to same dated
April 27, 2000. The April 27, 2000 letter is a writing that speaks for itself in its entirety and any
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
20. Denied as stated. The April 26, 2000 decision is the subject of the April 27, 2000
letter, which is a writing that speaks for itself in its entirety, and any characterizations,
descriptions, or selective references to same are denied to the extent that they are inconsistent with
the full, complete and actual content of the document.
21. Admitted in part. Denied in part. It is admitted only that the Township issued a
letter pertaining to the re-approval dated September 14, 2001. The September 14, 2001 letter is a
writing that speaks for itself in its entirety and any characterizations, descriptions, or selective
references to same are denied to the extent that they are inconsistent with the full, complete and
actual content of the document.
22. Admitted in part. Denied in part. It is admitted only that there was a re-approval
issued by the Township. The re-approval was the subject of the April 27, 2000 letter, which is a
writing that speaks for itself in its entirety, and any characterizations, descriptions, or selective
references to same are denied to the extent that they are inconsistent with the full, complete and
actual content of the document.
5
23. Admitted in part. Denied in part. It is admitted only that the Township issued a
letter pertaining to this Plan dated September 14, 2001. The September 14, 2001 letter is a writing
that speaks for itself in its entirety and any characterizations, descriptions, or selective references
to same are denied to the extent that they are inconsistent with the full, complete and actual
content of the document.
24. (a) - (d). Denied as stated. The September 12, 2001 re-approval decision was
conveyed via a September 14, 2001 letter, which is a writing that speaks for itself in its entirety,
and any characterizations, descriptions, or selective references to same are denied to the extent that
they are inconsistent with the full, complete and actual content of the document.
25. Admitted in part. Denied in part. It is admitted only that Plaintiff Lettermen filed
the referenced appeal. Lettermen's appeal is a writing that speaks for itself in its entirety, and any
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
26. Admitted in part. Denied in part. It is admitted only that the Township issued a
letter pertaining to this Plan dated September 14, 2001. The September 14, 2001 letter is a writing
that speaks for itself in its entirety and any characterizations, descriptions, or selective references
to same are denied to the extent that they are inconsistent with the full, complete and actual
content of the document.
27. (a) - (f). Denied as stated. The September 12, 2001 re-approval decision was
conveyed via a September 14, 2001 letter, which is a writing that speaks for itself in its entirety,
and any characterizations, descriptions, or selective references to same are denied to the extent that
they are inconsistent with the full, complete and actual content of the document.
6
28. Admitted in part. Denied in part. It is admitted only that Plaintiff Lettermen filed
the referenced appeal. Lettermen's appeal is a writing that speaks for itself in its entirety, and any
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
29. Denied as stated. The Court's January 12, 2000 Order and the Township's
September 14, 2001 re-approval decisions are writings that speak for themselves in their entireties
and any characterizations, descriptions, or selective references to same are denied to the extent that
they are inconsistent with the full, complete and actual content of these documents.
30. Denied as stated. The Court's December 29, 2000 Order and the Township's
September 14, 2001 re-approval decisions are writings that speak for themselves in their entireties
and any characterizations, descriptions, or selective references to same are denied to the extent that
they are inconsistent with the full, complete and actual content of these documents.
31. Admitted in part. Denied in part. It is admitted only that the Township
conditionally approved the Final Subdivision and final Land Development Plans. It is denied that
the Township ever agreed not to implement any conditions in the Land Use process pertaining to
the Property. It is denied that Plaintiff was caused to re-litigate the terms of the Settlement
Agreement. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the veracity of Plaintiffs' averments regarding the causes of, or
losses of revenue purportedly resulting from, any delays in the construction and operation of the
golf course. Strict proof of same is demanded.
32. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the veracity of Plaintiff's purely speculative averments
7
regarding traffic studies that may or may not been required by Penn DOT, and the alleged costs of
same, and these averments are therefore denied with strict proof demanded.
33. Admitted in part. Denied in part. It is admitted only that Plaintiff Lettermen filed an
appeal from the September 14, 2001 decision. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as to the veracity of the stated
reasons for filing the appeal, and such averments are therefore denied with strict proof demanded.
34. Admitted in part. Denied in part. It is admitted only that Judge Hoffer issued a
December 5, 2002 decision. The decision is a writing that speaks for itself in its entirety, and any
characterizations, descriptions, or selective references to same are denied to the extent that they
are inconsistent with the full, complete and actual content of the document.
35. Denied as stated. The December 5, 2002 decision is a writing that speaks for itself
in its entirety, and any characterizations, descriptions, or selective references to same are denied to
the extent that they are inconsistent with the full, complete and actual content of the document.
36. Admitted.
37. Admitted.
38. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph of
Plaintiffs' complaint and the same are therefore denied with strict proof demanded.
39. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph of
Plaintiffs' complaint and the same are therefore denied with strict proof demanded.
8
40. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph of
Plaintiffs' complaint and the same are therefore denied with strict proof demanded.
41. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph of
Plaintiffs' complaint and the same are therefore denied with strict proof demanded.
42. Denied as stated. The December 11, 2002 correspondence is a writing that speaks
for itself in its entirety, and any characterizations, descriptions, or selective references to same are
denied to the extent that they are inconsistent with the full, complete and actual content of the
document.
43. Denied. It is denied that the Settlement Agreement was entered into "in
contemplation of the submission of these Plans, as neither a Subdivision Plan nor a Land
Development Plan was required to construct the golf course; rather, only a Storm Water
Management Plan was required for golf course construction. The Land Development Plan was
required only for the erection of structures (i.e., the club house and pump house) on the golf course
property. The Subdivision Plan submitted by Lettermen pertained to a residential housing
development that has not been constructed, and was not required for development of the golf
course.
44. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied.
Breach of Contract
9
45. The averments contained in the foregoing paragraphs 1 through 44 of the instant
Answer are incorporated by reference herein as though set forth in full.
46. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied. By way of further answer, after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the truth of the
averments of this paragraph of Plaintiffs' complaint and the same are therefore denied with strict
proof demanded.
47. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied.
48. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied. By way of further answer, after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the truth of the
averments of this paragraph of Plaintiffs' complaint and the same are therefore denied with strict
proof demanded.
49. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied. By way of further answer, after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the truth of the
averments of this paragraph of Plaintiffs' complaint and the same are therefore denied with strict
proof demanded.
10
WHEREFORE, Defendants respectfully request that judgment be entered in their favor and
against the Plaintiffs, and that the complaint be dismissed with prejudice.
NEW MATTER
50. The foregoing averments contained in paragraphs 1 through 49 are incorporated
herein by reference as though set forth in full.
51. The complaint fails to assert a claim or cause of action for breach of contract for
which relief may be granted against Defendants, as a matter of law.
52. Defendants did not breach the terms and conditions of the Settlement Agreement.
53. Defendants complied with all covenants and promises that they were required to
perform under the Settlement Agreement.
54. The parties to the Settlement Agreement did not intend the terms of the Settlement
Agreement to apply to matters beyond the resolution of the Conditional Use appeal.
55. Any acts of Defendants alleged to constitute a breach of contract were not
substantial causes or factors of the alleged construction delays and did not result in the damages
and/or losses alleged by the Plaintiffs.
56. The delays and/or damages described in the Plaintiffs' complaint may have been
caused or contributed to by the Plaintiffs' own acts or omissions.
57. The delays and/or damages described in the Plaintiffs' complaint may have been
caused or contributed to by the Plaintiffs' inexperience with golf course design and development.
11
58. The delays and/or damages described in the Plaintiffs' complaint may have been
caused or contributed to by Plaintiffs' shareholders, officers, employees, consultants and/or
subcontractors.
59. The delays, injuries and/or damages alleged to have been sustained by the Plaintiffs
were not proximately caused by Defendants.
60. The acts or omissions of other individuals and/or entities may have constituted
intervening, superseding causes of the delays and/or damages alleged to have been sustained by
the Plaintiffs.
61. Plaintiffs may not have properly mitigated their alleged damages.
62. The claims asserted in the plaintiffs' complaint may be barred and/or limited by the
statute of limitations.
63. Plaintiff RVG may not have standing to bring the instant action against Defendants.
64. Plaintiffs' claims may be barred or limited by principles of accord and satisfaction.
65. The Plaintiffs' claims may be barred or limited by principles of waiver and
estoppel.
66. Plaintiffs' claims may be barred and/or limited by the doctrine of failure of
consideration.
67. The Defendants believe and therefore aver that the Plaintiffs have failed to state a
claim upon which relief can be granted.
68. Defendants plead the following affirmative defenses to the plaintiffs' claims, in the
event that discovery establishes applicability thereof. arbitration and award, consent, duress,
estoppel, fraud, illegality, impossibility of performance, justification, laches, license, payment,
privilege, release, res judicata, statute of frauds, truth and waiver.
12
WHEREFORE, Defendants respectfully request that judgment be entered in their favor and
against the Plaintiffs, and that the complaint be dismissed with prejudice.
Respectfully submitted,
DATE: Z7
Lavery, Faherty, Young & Patterson, P.C.
By:
Cheryl L. ovaly, Esquire
225 Market Street, Suite 3
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
Attys for Defendants
13
VERIFICATION
The undersigned hereby verifies that the statements contained in the foregoing Answer with
new matter are based upon information which has been furnished to counsel by me and information
which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of
the Answer with new matter is that of counsel and not my own. I have read the Answer with new
matter and to the extent that it is based upon information which I have given to counsel, it is true and
correct to the best of my knowledge, information and belief. To the extent that the content of the
Answer with new matter is that of counsel, I have relied upon my counsel in making this Verification.
The undersigned also understands that the statements therein are made subject to the penalties of 18
Pa. C.S. Section 4904, relating to unsworn falsification to authorities.
SILVER SPRING TOWNSHIP
uu rr__
Date: 10 1 -1 Q By:
Board of
14
CERTIFICATE OF SERVICE
I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young &
Patterson, P.C., do hereby certify that on this day of October, 2006, I served a true and
correct copy of the foregoing Notice to Plead and Answer with New Matter, via U.S. First
Class mail, postage prepaid, addressed as follows:
Gregory H. Knight, Esquire
Knight & Associates
11 Roadway Drive, Suite B
Carlisle, PA 17013
Co-Counsel for Plaintiffs
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
Co-Counsel for Plaintiffs
BI the A. Morrison
Legal Secretary to Cheryl L. Kovaly
15
r-? C-rat
a
N
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.,
PENNSYLVANIA
Plaintiffs
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: NO. 2005-4689
: CIVIL ACTION - LAW
PLAINTIFFS' ANSWER TO DEFENDANTS' NEW MATTER
Lettermen, Inc., and Rich Valley Golf, Inc., by their attorneys, Hubert X. Gilroy,
Esquire, and Gregory H. Knight, Esquire, file the following in response to the New
Matter filed by Defendants:
50. No responsive pleading is required.
51. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
52. Denied. On the contrary, Defendant did breach the terms and conditions of
the Settlement Agreement as set forth in paragraphs 1-49 of the Complaint
which are incorporated herein by reference thereto.
53. Denied. On the contrary, Defendant did not comply with all of the covenants
and promises that they were required to perform under the Settlement
Agreement as set forth in paragraph 1-49 of the Complaint which are
incorporated herein by reference thereto.
54. Denied. On the contrary, the parties specifically intended that the terms of
the Settlement Agreement would apply in conjunction with future Land
Development Plans which were contemplated to be filed by the Plaintiffs and
future Subdivision Plans that were contemplated to be filed by the Plaintiffs.
55. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
56. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
57. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
58. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
59. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
60. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
61. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
62. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
63. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied. By way of further answer, Rich
Valley Golf, Inc.; is a subsidiary corporation of Lettermen, Inc., and was
assigned all rights and interests owned by Lettermen, Inc. to the
development. Lettermen, Inc. is the sole shareholder of Rich Valley Golf,
Inc., and one tax return is filed for both corporate entities.
64. Said allegation is' a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
65. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
66. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
67. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
68. Said allegation is a conclusion of law and no responsive pleading is required.
In the alternative, after reasonable investigation the Plaintiffs are without
knowledge and information sufficient to form a belief as to the truth of this
averment, and said averment is denied.
WHEREFORE, the Plaintiffs request your Honorable Court to dismiss the New
Matter filed by the Defendants and to enter judgment in favor of the Plaintiffs as set
forth in the Complaint.
Respectfully submitted:
Hubert X. Gilroy, Es
Attorney ID No. 299
4 N. Hanover Street
Carlisle, PA 17013
(717) 243-4574
Attorney for Plaintiffs
Gregor It. Knight, Es uire
Attorney ID No. 30622
11 Roadway Drive, Suite B
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiffs
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.,
Plaintiff
VS.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005-4689
CIVIL ACTION -LAW
VERIFICATION
I verify that the statements in the foregoing Plaintiffs' Answer to Defendants' 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.
U,1
Jeffr S. u n
C ? r? ?'"'!
C"? -'i1
t,.. (.' :)
iLJ"Y
i""'7 t?? r-^
?i _C• ?;
(.f ? s C->
U? ?{,
??
LETTERMAN, INC. and
RICH VALLEY GOLF, INC.,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 05-4689
CIVIL ACTION - LAW
NOTICE TO PLEAD
TO: SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS
c/o: Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT WITHIN
THIRTY (30) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED
AGAINST YOU.
//- g - o
Date
& V.
Hubert X. Gilroy, Esqui
Broujos & Gilroy, P.C.
4 North Hanover Stred
Carlisle, PA 17013
(717) 243-4574
(Attorney for Plaintiffs)
LETTERMAN, INC. and
RICH VALLEY GOLF, INC.,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 05-4689
CIVIL ACTION - LAW
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, Lettermen, Inc. and Rich Valley Golf, Inc., by and through their attorneys,
Knight & Associates, P.C. and Broujos & Gilroy, P.C., are entitled to judgment as a matter of
law as to liability for Defendants' breach of contract and, therefore, pursuant to Pa.R.C.P.
1035.1 et seq., move the Court as follows:
PROCEDURAL HISTORY
1. The procedural history of this case and a summary of the record before the
Court is as follows:
a) On September 8, 2005, Plaintiffs commenced the instant action by the
filing of a writ of summons.
b) On June 21, 2006, Plaintiffs filed a complaint at the instant docket
averring one count for breach of contract.
-2-
C) On July 10, 2006, Defendants filed preliminary objections to the
Complaint. The Preliminary Objections were answered by Plaintiffs on July 26, 2006;
timely briefed by both parties; and argued before this Honorable Court on September
6, 2006. By Order of Court dated September 20, 2006, the Preliminary Objections were
dismissed, as this Court found that Plaintiffs had "averred facts in support of a cause
of action, which if proven, could constitute a breach by the Township of the Settlement
Agreement[.]" (Opinion at p. 6.)
d) On October 5, 2006, Defendants filed an Answer with New Matter.
e) On October 25, 2006, Plaintiffs filed a reply to Defendants' New Matter.
f) Pursuant to Pa.R.C.P. 1035.4, Plaintiffs have filed with this Motion an
Affidavit of Jeffrey S. Austin in support of this Motion.
2. The pleadings of this case are closed.
FACTS OF RECORD
3. Plaintiff, Lettermen, Inc., ("Lettermen") is a Pennsylvania Corporation with
offices at 716 North West Street, Carlisle, Cumberland County, Pennsylvania, 17013.
(Complaint "C." at ¶ 1.)
4. Plaintiff Rich Valley Golf, Inc. ("RVG") is a Pennsylvania Corporation
operating under the business name "Rich Valley Golf" with principal offices at 227 Rich
Valley Road, Mechanicsburg, Cumberland County, Pennsylvania, 17050.
-3-
5. Defendant Silver Spring Township ("Township"), 6475 Carlisle Pike,
Mechanicsburg, Cumberland County, Pennsylvania 17055-2391, is a municipality created
pursuant to the Second Class Township Code, 53 P.S. 65101 et seq..
6. Defendant Silver Spring Township Board of Supervisors ("Board") is the
current duly-elected Board of Supervisors of Defendant Silver Spring Township (and with
Defendant Silver Spring Township are collectively referred to as "Defendants" or the
"Township").
7. Plaintiffs are the owners of a property comprised of approximately 180 acres of
land situated in Silver Spring Township, and bordered by I-81 and Rich Valley Road
("Property").
8. On October 22, 1998, Lettermen filed a Conditional Use Application to develop
the Property as a golf course, which is permitted as a conditional use in the 1995 Zoning
Ordinance.
9. On March 10, 1999, the Board of Supervisors approved Lettermen's
Conditional Use Application subject to certain conditions ("Conditional Use Decision"), which
included the following:
(4)' That the Applicant shall provide a comprehensive traffic analysis of (a)
Rich Valley Road and Wertzville Road, (b) Rich Valley Road and Carlisle Pike, and (c)
Rich Valley Road and all the feeder streets located between (a) and (b), in order to
identify and fund road improvements needed to address the increase of traffic volume
caused by the golf course use.
' The numbers ( (4), (5) ... ) correlate with the condition numbers of the Conditional Use Decision.
-4-
(5) That if warranted by PennDOT, Applicant shall provide the funds
necessary to improve the roadway and install electric traffic signals at the intersection
of Rich Valley Road and Carlisle Pike. Applicant's funding requirements shall be
reduced by the amount, if any, of prior developer-contributions made specifically for
such purposes at said intersection. (hereinafter referred to as "Condition No. 5".)
(6) That except for an outside entrance canopy, the proposed adaptation of
the barn structure nearest Rich Valley Road denoted for clubhouse purposes must be
limited and confined to the existing interior dimensions (width, length, height, area and
volume) of said structure and within the "footprint" thereof.
(7) That restaurant and dining facilities of the clubhouse shall not be used
for banquet purposes except in conjunction with principal golf-related activities on the
day of said activities.
10. On April 9, 1999, Lettermen filed a Land Use Appeal to the Conditional Use
Decision with the Cumberland County Court of Common Pleas, Docket No. 99-2108, Civil.
(hereinafter referred to as "Lettermen I".)
11. The record before the Court in Lettermen I is incorporated herein by reference,
and Plaintiffs respectfully request that the Court take judicial notice in the instant case of the
record in Lettermen I.
12. Lettermen filed a Preliminary Land Development Plan with the Township and,
by letter of September 23, 1999, the Township notified the Plaintiff that the Preliminary Land
Development Plan for the golf course project had been approved by the Board on September
22, 1999.
-5-
13. Lettermen filed a Preliminary Subdivision Plan with the Township and, by
letter of September 23, 1999, the Township notified Lettermen that the Preliminary
Subdivision Plan for the golf course had been approved by the Board on September 22, 1999.
14. On January 12, 2000, the Honorable President Judge George E. Hoffer issued
an Opinion and Order in Lettermen I wherein Condition No. 5 was annulled.
15. The Township appealed the January 12, 2000 Order annulling Condition No. 5
to the Commonwealth Court.
16. Lettermen filed a Final Subdivision Plan with the Township and, by letter of
April 27, 2000, the Township notified Lettermen that the Final Subdivision Plan for the golf
course had been approved by the Board on April 26, 2000, with the Final Subdivision Plan
approval of April 26, 2000 being subject to all conditions of the Preliminary Plan Approval.
17. On May 11, 2000, Lettermen and Township entered into a settlement agreement
(herein, the "Settlement Agreement") wherein Lettermen agreed to contribute Six Thousand
Dollars ($6,000.00) to the Township for the improvement of Rich Valley Road and/or the
improvement and/or signalization of the intersection of Rich Valley Road and Carlisle Pike,
and Township agreed to withdraw its appeal concerning Condition No. 5.
18. On December 29, 2000, upon motion for re-argument by Lettermen, President
Judge George E. Hoffer issued an Opinion and Order in Lettermen I wherein Condition No. 6
was stricken and Condition No. 7 was modified.
-6-
19. By letter of September 14, 2001, the Township notified Lettermen that it re-
approved the Preliminary Subdivision Plan on September 12, 2001 for the golf course with
certain conditions attached which included the following:
a. Condition 17 requiring a comprehensive traffic analysis of Rich Valley Road
and certain other roads. This requirement is identical to Conditional Use
Decision condition 4, which condition was stricken by Stipulation of Plaintiff
and Township and incorporated in the Order of this Honorable Court on
January 12, 2000.
b. Condition 18 requiring Plaintiff provide for certain roadway improvements and
traffic signalization at Rich Valley Road and Carlisle Pike, if required. This
requirement is identical to Condition No. 5, the subject of the Settlement
Agreement and which was annulled by this Honorable Court in its January 12,
2000 Order.
c. Condition 19 limiting the size and dimensions of the proposed clubhouse, which
is identical to Conditional Use Decision condition 6, which was modified by this
Honorable Court in its Order of December 29, 2000.
d. Condition 20 restricting clubhouse use, which restriction is identical to
Conditional Use Decision condition 7, which was modified by this Honorable
Court in its Order of December 29, 2000.
20. By the letter of September 14, 2001, the Township notified Lettermen that at the
September 12, 2001 meeting, it re-approved the Preliminary Land Development Plan for the
golf course. Conditions attached to the September 12, 2001 re-approval of the Preliminary
Land Development Plan included the following:
-7-
a. Condition 22 requiring Lettermen to provide a traffic signal, if such signal was
warranted after a traffic study was completed, at Rich Valley Road and Carlisle
Pike, which requirement is part of Conditional Use Decision condition 5, which
was annulled by the January 12, 2000 Order and is the subject to the
Agreement referred to in paragraph 15 above.
b. Condition 24 requiring that all conditions of the Conditional Use Decision must
be met, which requirement is contrary to the aforementioned Court Orders and
Agreement.
c. Condition 38 requiring a comprehensive traffic analysis of Rich Valley Road
and certain other roads, which requirement is identical to Conditional Use
Decision condition 4, which condition was stricken by Stipulation of Lettermen
and the Township
d. Condition 39 requiring funding for offsite improvements including installation
of traffic signalization on Rich Valley Road and Carlisle Pike, which
requirement is identical to Conditional Use Decision condition 5, which
condition was annulled by the January 12, 2000 Order and is the subject of the
Settlement Agreement.
e. Condition 40 limiting the size and dimensions of the proposed clubhouse which
is identical to Conditional Use Decision condition 6, which condition was
stricken by this Honorable Court in its Order of December 29, 2000.
f. Condition 41 restricting clubhouse use, which restriction is identical to
Conditional Use Decision condition 7, which was modified by this Honorable
Court in its Order of December 29, 2000.
-8-
21. By letter of September 14, 2001, the Township notified Lettermen that the
Township re-approved the Final Subdivision Plan on September 12, 2001, which was made
subject to all conditions of the Preliminary Plan Approval.
22. Despite this Honorable Court's Order of January 12, 2000 in Lettermen I
striking Condition No. 5 of the Conditional Use Decision, the Board again imposed the same
condition in its re-approval of the Preliminary Subdivision Plan and the Preliminary Land
Development Plan; moreover, despite this Honorable Court's Order of December 29, 2000 in
Lettermen I striking Conditional Use Decision condition no. 6 and modifying condition No. 7,
the Board again imposed the same condition No. 6 and imposed the same condition No. 7
without the Court's modification in its re-approval of the Preliminary Subdivision Plan and
the Preliminary Land Development Plan.
23. At Docket No. 01-5876, Lettermen appealed the September 12, 2001 re-approval
of the Preliminary Land Development Plan because it imposed Conditions 22, 24, 38-41,
which either had been stricken or modified by this Honorable Court or settled by agreement
of the parties; and at Docket No. 01-5877, Lettermen appealed the September 12, 2001 re-
approval of the Preliminary Subdivision Plan because it imposed Conditions 17 through 20,
which either had been stricken or modified by this Honorable Court or settled by agreement
of the parties. (The aforesaid actions were consolidated by the Court and are collectively
referred to herein as "Lettermen II".)
24. On December 5, 2002, in Lettermen II, the Honorable George Hoffer wrote, for
a three-judge panel, that "...Lettermen is correct in stating that these conditions, which had
-9-
already been stipulated to, settled, or dealt with by this Court, are not viable conditions for
the Revised Subdivision and Revised Land Development Plans."
25. The record before the Court in Lettermen II is incorporated herein by
reference, and Plaintiffs respectfully request the Court take judicial notice in the instant case
of the record in Lettermen II.
26. On December 23, 2002, the Township appealed the December 5, 2002 decision
to Commonwealth Court.
27. On January 24, 2003, the Township withdrew the appeal of the December 5,
2002 decision.
28. On March 24, 2003 Lettermen incorporated RVG as a wholly-owned subsidiary
and affiliate of Lettermen.
29. RVG is a successor in interest to Lettermen in matters relevant to the instant
action.
AT ISSUE BEFORE THE COURT IN THIS MOTION
30. The primary issue before the Court is the legal question of whether the
Township breached the Settlement Agreement as follows:
a) The Settlement Agreement was entered into by the parties in recognition
of the fact that the Plaintiffs would be filing a Land Development Plan and Subdivision
-10-
Plan with respect to the golf course project once the Conditional Use Permit
Application process was finalized.
b) The Settlement Agreement prohibited the Defendant from re-imposing
conditions resolved in the Settlement Agreement on any approvals issued by the
Defendants for Plaintiffs' project in connection with Land Development Plan approval
or Subdivision Plan approval.
C) The Township's said September 14, 2001 decisions constituted a breach
of the Settlement Agreement; that is, the Township's actions in imposing Condition No.
5 on the approval of the aforementioned Final Subdivision and Final Land
Development Plans constituted an outright breach of the Settlement Agreement.
d) The Plaintiff has incurred legal fees, costs, and damages that are the
direct and proximate result of the appeal it had to file to strike the conditions imposed
in the "re-approvals" by the Defendants.
C) The golf course and related facilities as contemplated by RVG were
delayed as a result of the appeal to litigate the Defendants' "re-approvals", and which
delayed the opening of the golf course from the Decisions of the Township on
September 12, 2001 with their "re-approval" of the Plans of the Plaintiffs until March,
2003, at such time that Defendants withdrew its appeal to the Commonwealth Court of
the December 5, 2002 Decision of the Court of Common Pleas of Cumberland County,
and such time that Plaintiff was able to marshal resources and weather allowed
Plaintiff to commence construction of the golf course.
f) The Township's breach of the Settlement Agreement caused the Plaintiff
to re-litigate the terms of the Settlement Agreement and caused the construction of the
-11-
golf course to be delayed and the ultimate loss of revenue by the Plaintiff from the
course not being in operation.
g) The Township's breach of the Settlement Agreement directly and
proximately caused Plaintiffs to incur significant damages, in excess of One Million
Dollars, for legal fees, costs, and damages, including carrying costs related to the
development, debt service, costs of maintenance, costs expended on equipment, costs on
infrastructure and administrative costs related to the development, and lost revenue.
h) The Township's breach of the Settlement Agreement by imposing
Condition No. 5 on the Subdivision approval and Land Development approval for the
golf course project was in bad faith and was arbitrary and vexatious.
31. In the Lettermen II decision, this Court determined that the Township was
barred by the Settlement Agreement from re-imposing Condition No. 5 on Lettermen's
approvals.
32. As such, pursuant to the legal doctrine of collateral estoppel, the issue of
whether the Township breached the Settlement Agreement by re-imposing Condition No. 5 on
subdivision and land development approvals subsequent to the Settlement Agreement has
already been decided, as a matter of law, for purposes of the Township's liability for breach of
contract in the instant action.
33. Moreover, re-imposition of Condition No. 5 on subdivision and land
development approvals subsequent to the Settlement Agreement falls within the legal doctrine
of necessary implication.
-12-
34. At paragraph 62 of its New Matter, the Township avers that Plaintiffs' claims
"may be barred and/or limited by the statute of limitations", although averring no facts in
support thereof. In any event, the applicable statue of limitations does not bar Plaintiffs'
claims for the following reason:
a) The Settlement Agreement was breached by the Township on September
14, 2001 by the Township's said land use decisions re-imposing Condition No. 5.
b) The limitation of actions for breach of a contract is four years. (42
Pa.C.S. § 5525.)
C) The instant action was commenced on September 8, 2005, less than four
years from the date of breach of the Settlement Agreement; therefore, Plaintiffs' action
was timely filed and is not barred by the applicable statute of limitations.
35. At paragraph 63 of its New Matter, the Township baldly claims that RVG "may
not have standing to bring the instant action against Defendants."
36. RVG indeed has standing to sue the Township, as RVG is a wholly-owned
subsidiary of Lettermen, assignee and successor in interest to matters involving the property
which is the subject of the land use matters in this case.
37. At paragraph 64 of its New Matter, the Township baldly claims that "Plaintiffs'
claims may be barred or limited by principles of accord and satisfaction."
38. Plaintiffs aver no facts whatsoever to support the defense of accord and
satisfaction.
39. No facts exist to support the defense of accord and satisfaction.
-13-
40. At paragraph 65 of its New Matter, the Township baldly claims that "Plaintiffs'
claims may be barred or limited by principles of waiver and estoppel."
41. Plaintiffs aver no facts whatsoever to support the defense of waiver and
estoppel.
42. No facts exist to support the defense of waiver and estoppel.
43. At paragraph 66 of its New Matter, the Township baldly claims that "Plaintiffs'
claims may be barred and/or limited by the doctrine of failure of consideration.
44. Plaintiffs aver no facts whatsoever to support the defense of failure of
consideration.
45. No facts exist to support the defense of failure of consideration.
46. At paragraph 66 of its New Matter, Defendants plead that Plaintiffs have failed
to state a cause of action upon which relief may be granted, which is the issue at the essence of
this motion.
47. The Township pleads a number of other affirmative defenses in scattergun
fashion at paragraph 68 of the New Matter; however, the defenses are pled with no facts
averred to support the defenses and no basis exists for them.
-14-
THE ISSUES BEFORE THE COURT ARE RIPE FOR DISPOSITION
48. Application of the doctrine of collateral estoppel to the case before the Court is
a question of law, and is properly decided from the record before the Court.
49. In the event that it is judicially determined that the issue of breach of the
Settlement Agreement has not already been decided pursuant to the doctrine of collateral
estoppel, the issue of the Township's breach of the Settlement Agreement involves the legal
interpretation of a written contract, and this issue can be decided as a matter of law from the
record before the Court.
50. The Township raises several affirmative defenses which go to the issue of
damages, and they are therefore not at issue in the instant motion.
51. The issue of statute of limitations, standing to sue, and failure of consideration
all can be decided as a matter of law from the record before the Court.
52. No genuine issue of any material fact exists as to a necessary element for
liability for the cause of action of breach of contract, or for any of the defenses claimed by
Defendants which are pertinent to the primary issue of Defendants' liability for breach of
contract, which could be established by additional discovery or expert report.
53. Trial will not be delayed by the filing and disposition of the instant motion.
54. Determination of this motion will expedite trial and will serve judicial economy,
as Plaintiffs believe trial will be required only on the issue of damages.
-15-
WHEREFORE, Plaintiffs respectfully request your Honorable Court hold that
Defendants breached the Settlement Agreement, as a matter of law, and direct that trial be
held only on the issue of damages.
RESPECTFULLY SUBMITTED,
KNIGHT & ASSOCIATES, P.C.
Date Gregory night, Esquire
Supreme Court I.D. No. 30622
11 Roadway Drive, Carlisle, PA 17013
(717) 249-5373
(Attorney for Plaintiffs)
BROUJOS & GILROY, P.C.
Date Hubert X. Gilr , Esquire
Supreme Co I.D. No. 29943
4 North Ha over Street, Carlisle, PA 17013
(717) 243-4574
(Attorney for Plaintiffs)
-16-
LETTERMAN, INC. and
RICH VALLEY GOLF, INC.,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 05-4689
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify, that on this date, I have caused a true and correct copy of the
foregoing Plaintiffs' Motion for Partial Summary Judgment to be served upon the following
and in the manner specified, which services satisfies Pa.R.C.P. 440 and C.C.R.P. 210-6.
U.S. Mail, Postage Prepaid to:
Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(Attorney for Defendants)
Date
Hubert X. Gilroy', Esquire
Broujos & Gi oy, P.C.
4 North Ha over Street
Carlisle, PA 17013
(717) 243-4574
(Attorney for Plaintiffs)
-17-
4
LETTERMEN, INC. and RICH
VALLEY GOLF, INC.,
Plaintiffs
VS.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005-4689
CIVIL ACTION -LAW
r-Z'
Defendants n c
l
AFFIDAVIT
I, Jeffrey S. Austin, in my capacity as President of Lettermen, Inc., and President of
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP
BOARD OF SUPERVISORS,
Rich Valley, Inc., being duly sworn according to law, do depose and state as follows:
1. Both Lettermen, Inc. (Lettermen) and Rich Valley Golf, Inc. (Rich Valley) are
Pennsylvania for-profit corporations duly organized and registered in
Pennsylvania.
2. Rich Valley was organized and incorporated on or about March 31, 2003, and
Lettermen is the sole owner of all of the stock of Rich Valley.
3. Rich Valley is a solely owned subsidiary of Lettermen and Lettermen has filed a
form 8869-Qualified Subchapter S Subsidiary Election with the Internal Revenue
Service naming Rich Valley as a subsidiary.
4. Attached hereto and marked as "Exhibit A" is a copy of the Articles of
Incorporation for Rich Valley, and attached hereto and marked as "Exhibit B" is
a copy of the form 8869 that was filed with the Internal Revenue Service on behalf
of Lettermen and Rich Valley.
5. Consistent with the Settlement Agreement between Lettermen and Silver Spring
Township, which is the subject of the litigation captioned above, Lettermen, Inc.
made a $6,000.00 payment to Silver Spring Township on February 5, 2003. A
copy of the check for said payment is attached hereto and marked "Exhibit C".
\,u, i C,,?-T--
J r y stin
COMMONWEALTH OF PENNSYLVANIA
ss
COUNTY OF CUMBERLAND
On this, the day of , 2006, before me a Notary Public, the undersigned
officer, personally appeared Jeffrey S. Austin, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and acknowledged that he executed
the same for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
WOW Seal
Shelly Brooks, Notary Public
Carlisle Boro, Cumberland County
My Commission Expires Aug. 5, 2009
Member, Pennsylvania Association of Notaries
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
Articles of Incorporation-For Profit
(IS Pt.C.S.)
X
1:otiy tvumlxr Buscnas-stock (11306) w Manegcou-M (12703)
Susinewnoastock (§ 2102) Ptofessionat (¢ 2903)
Business-statutory close ($ 2303) lasurznce (§ :101)
Cooperative (§ 7102)
Name
SALZMANN, 3ePAUUS a FISHMAN. P C.
Addteir
95 ALEXANDER SPRING ROAD, SUITE 3
Cie Slots Zip Ce4e
CARLISLE PA 17013
Yee: SIDO 4
- . Filed it, the Otptumvm of Stay on
1 AtttNG secrewy of the Commonwealth
In compliance with the reopirements of the applicable provisions (relating to corporations utd unincorporated
atsaciationsj the undersigned, desiring to incorImmic n corporation for prof:t, hmby states that:
I. The name *(the togmtion (corporate designator repaired i.e., "corporation ". " r'nmuWrored "firitffed"
' compomy" or any abbreviation. "Profession, cotpnrafion " or "P.C
RICH VALLEY GOLF, INC.
The (a) address of this omporation's ottnmt registaroE afbce it this Ctmuarmweatth (pose o,0C& boa, alone, is ? o1
acceptable) or (b) name of its commercial regjnmvd ot6ce provider and the county of venue is:
(a) Number and Street
city
227 RICH VALLEY ROAD MECHANICSBURG
Document will he retumed to the
moms and ad&M yore enter to
the left
State zip County
PA 17050 CUMBERLAND
(b) Name of Commercial Registered Office Provider Country
Rio; NIA
??i The corporation is incorperatod under the provisions of the Business Corporation Law of 1983
71
4. The aggregate number of shares authorized:
EXHIBIT
DSc. A:l51306.110212303/270212903!3IQ1 R102A-2
s. The name aM Address, iacloding number and strut, ifiny, of'ea,ch jecorperxtor (all incorporators mU.TJ
sin below):
None Address
l>lTTERMf"ty, INC., lelkc S. Austin, Prctdent 716 N. West Streot, Carfisre, PA 17013
ti. The specified effective date, if any. t>Jr'2tt03
rtaontYJdiytysst bout, if any
7. Add-+tioW pt ovisions of ft ariMes, if any, attach in 8'4 by 1 I shoot
x. Statutory close cotpordtidn oaly: Neither the Corporation nor ally ehartholdet shalt make in offeatng of any of
its shares of aay etas Chet world mutitute a -Tublic offering" within thc. raeartiag of the Securities Act of
1933 (1511.S.C. 771 et seq.)
9. Coopmlrve cor para6ans only- Compkie and sr ike Out Inapplicable reM.,
The common bond of membership among its membbVshatihoiders is- WA
N7ESTiMONY WHfiR1AF,tha+ttcerlaoraaor(s)
l have signed theca Articles of incorporation Otis
1I1,
21:t day of Adbr?tt _ __. 2003
i
i
SiRnrt,,;rt:
Signature
It= 8 8 6 8 Qualified Subchapter S Subsidiary Election
(Septembar2000) OMB No 1545-1700
? , o •„^ (under section 1361(x)(3) of the Internal Revenue Code)
• Parent S Corporation MakinIg the Eltiiction
Is Name or parent 2 Employer ktenlificatlon number (EIN)
I,r ItermRn -Ins. 23-2294458
b Number, strove, and morn or sult# no. (y a P.C. box, fee Instruct mil) 2 Tax year ending tmcnth and day)
716 gggj 1'14tet- 5traet --.?*211 gr 31
c Olty or Uarm, stale, and 21P two -?- 1 4 Servtcs ;onto- w i," lost wurn was reed
6 Name of cheer or legit repressntetive whom the Ift$ may call toe mere tnferttssen
mi nhaori 14 iloal in Rexror P. rti **.Mr ?'*& r e
d idopnone number er! olfirx?r of loge!
eeprsaentattwt 917-7ao_?E]
To Hama of subsidiary e Eu, (lf arri) - - - -
_ -SL,ich Val.lay Golf, Inc 11 - -3694!57
b Number, street, and foots or suNta no. (If a P,Q box, see %nMdions) t Date incerporsted
227 Rich Valldty Road _March 25, 2003
C City or W", shin, and ZIP code 10 State or incorporation
11 Date ceocan is IO lake affect (maws, clay, year, sea instrudana) . • llp? N,Arch 25, 2003
12 Did the subsidlwy ptevlousy Ills a Federal income toy tw uml It'Yes," complete inn 1 ace, 1313, snd 1 It • • • • • • . . • • • • 0' Yes X ti.
134 soffte Center twhore last Tatum was fled 19b Tax year and ft daus of test 13e Check type ai returnreed Form 11120
- - tatUm (month, day. year) 1 F71 Form 11X5 Attar
14 Was the ajbsldlary'a isat return ttkci as
i U Name or corn MGn parent
a a CaniW!dated relurrT If "Yt%," compete 144, 161%, and 116c . . . . . .. . . . . - L Yet F, No
16t; FIN or eMenen panxrt 15C Service oentaw whets oeneaiaataa MWon ores more
Undar Pail 61U46 of p9jury, 1 dtolara 1111 at 1 nave ozannned trig alecbor., dtduding aooxunparlying sehsdr lea and starenent:, and lathe, best of my knowledge and belief.
it is true, eorreet and Complete,
Signature of offlcor
of parent Corporation ?
General
SWIM rief"noss are to the tnterrisf Revenue Corte unfess
athorm" rtobld.
Purpose of Form
A parent S corporation uses Form 8869 to elect to treat one or more
of Its W19(ble subsidiefies as a qualified subdtapter S subsidiary
(QStlb),
The QSub efecHen resulle in a deemed rgrrdation of the
subsidiary into the parent. Following the dearned lquidatlo n the
QSub Is not treated as a separate corporation; all of the subalrfarys
assets liablittles and items of Income, deduction, and credit are
treati;1 as those of the parent.
Because the rrquidaffm is a deemed f u aatioe, do not File
uWrq?t a Form OU, Corporate Dlssoluti or Lioukiafien.
X*vor. a 5nel . *Nm V the subsidiary may have to be
riled tf ;t was a saporste cvowiiibon prior to the date of iquidolion.
Eligible Subsidiaries
Art vllg)ble Subsidiary is a domestic corporation whose stook is
owner! 100% by an S corporation and is not one of the foltowing
ineligible corporations:
a A bank or thrift Institution that uses the reserve method of
accounting for bad debts under section 585;
e An Insurance company subjecl to tax under the ^utee of
subchapter i_ of the Code;
a A corporation that has elected to M treated as a Wilitssions
corporation under section 936; or -
For Peperworx Reduction Aet Notice, tea back of
s B
Tilt Is
oat.. 5-5
A domestic international sate: corporation (DISC) or former
MC.
When To Make the Election
The parent S corporatlon can make the Qt3ub election at any time
during the tax year. However, the effective date of the election
dependt upon when K is filed. See Elfeetlvo, Dole of Etactton
on page 2,
Where To Fite
File Form 8889 w'th the sero;oe center where the ttubildiiary Clod its
most recent return. However, N the Wept S corporation torn: a
subsidiary. and makes a valid election effe0livt upon formation,
submit Form $869 to the aotrvitk Center where the parent S
Corporation filed its most recent return.
Acceptance of Election
The service center will notify the corporation 4 the CUSub election is
(a) aooepted and when 0 will take offorM; or lb) not accepted,
The corporation should goner oily receive at 6atemirlstloh -)n its
election within 60 days after h has filed Form 6869. Howmr, if the
corporation 4 not notified of accaptanoe or nonacceptance of its
tiection within 3 months of the dole of filing (date mailed), take
follow-up action h corresponding with the service center where the
corporation filed the election.
If the IRS questions whether Form 8869 was died, an aCCeptable
&jjJLpf filing is ice) certified or registered mail «cnipt timely
keel} from the U.S. Postal Service, or its aqulva ntfrom a
Sled private delivery Ren/ce (see Notice
Forts 8868 (a-xoec)
LETTERMEN INC. 18212
A6 N. WEST ST.
CARLISLE, PA 17013-1968
PH. 717-245-0082 3-7615/360
DATE February 5, 2003 269
PAY
To THE
ORDER QF Silver Spring Township I$ 6000.00
Six Thousand and 00/100-----------i------------------------ --
DOLLARS CITIZENS BANK
Pennsylvania
FOR-- traffic light
0 18 2 L 2iP 1:0 3 60 7 6 L 501: 6 L0008689 Silo 11'0000 6000001.'
t S
r
u) p
(
y r S 7
µ L. - - - - _ _
q y r '..;;. ai oos i i J
ffa £8???„ 2? r? 3?FS1311i?
Tsui` a.(lIa
EXHIBIT
c
i?i LI f u?
a `- 3
.900. III c?s?I tiIIf?Y?._:?
'F' -j" lei ?'?'
LETTERMAN, INC. and IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
DOCKET NO. 05-4689
V.
CIVIL ACTION - LAW
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
1. State matter to be argued: Plaintiffs' Motion for Partial Summary Judgment
2. Identify counsel who will argue case:
a) For Plaintiff: HUBERT X. GILROY, Esquire
4 N. Hanover Street, Carlisle, PA 17013
GREGORY H. KNIGHT, Esquire
11 Roadway Drive, Suite B, Carlisle, PA 17013
b) For Defendant: CHERYL L. KOVALY, Esquire
225 Market Street, P.O. Box 1245, Harrisburg, PA 17108
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: January 24, 2007 A/I
Dated: November , 2006
Hubert X. Gi roy, Esquire
At h
lym s ire
regory Knigh
?._ co
3
Lavery, Faherty, Young & Patterson, P.C.
Cheryl L. Kovaly, Esquire
225 Market Street, Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
(717) 233-6633 (telephone)
(717) 233-7003 (facsimile)
Atty No. PA73693
ckovaly@laverylaw.com
LETTERMEN, INC. and : IN THE CO
RICH VALLEY GOLF, Inc., : CUMBERL,
Plaintiffs
V. C
SILVER SPRING TOWNSHIP and 1\
SILVER SPRING TOWNSHIP BOARD :
OF SUPERVISORS,
Defendants
DEFENDANTS' ANSWER TO
MOTION FOR SUMMARY.
Attys for Defendants
T OF COMMON PLEAS OF
D COUNTY, PENNSYLVANIA
ACTION - LAW
05-4689 Civil Term
AND NOW, come the Defendants, Silver Spring ' ownship I and the Silver Spring
Township Board of Supervisors, by and through their
November 8, 2006 partial motion for summary judgment upon
Preliminary Statement:
Denied. These averments are denied as they are
is necessary pursuant to the Pennsylvania Rules of Civil
deemed to be denied.
Procedural History:
1. (a) Admitted.
and respond to Plaintiffs'
following averments:
of law to which no response
and the same are therefore
(b) Admitted.
(c) Admitted.
(d) Denied as stated. Defendants' answer with new matter was filed October 6,
2006, and not October 5, 2006.
(e) Admitted.
(f) Admitted.
2. Admitted.
Material Facts of Record:
3. Admitted, upon information and belief.
4. Admitted, upon information and belief.
5. Admitted.
6. Admitted.
7. Admitted in part. Denied in part. It is admitted only that Plaintiffs Letterman
and/or RVG are believed to own or to have an ownership interest in the Property, as described in
this paragraph. After reasonable investigation, Defendants are {without knowledge or information
regarding the nature of ownership interest existing by and be Itwveen the two corporate Plaintiffs
sufficient to form a belief as to the veracity of the averments pled in this paragraph, which
averments are therefore denied with strict proof demanded.
8. Admitted.
9. Admitted in part. Denied in part. It is admitted
10, 1999, approving the Conditional Use Application subject to
Plaintiffs' motion. It is denied that Plaintiffs correctly cited to
(4) That the Applicant shall provide a comprehensi,
intersections of (a) Rich Valley Road and W
Valley Road and Carlisle Pike, and (c) Rich Val
Streets located between (a) and (b), in order tc
a decision was issued on March
II
5, 6, and 7 as recited in
ition 4 which states:
traffic analysis of the
-tzville Road, (b) Rich
ey Road! and all Feeder
identifyand fund road
2
improvements needed to address the increase of traffic volume caused by
the golf course use. I
10. Admitted.
11. This paragraph contains no averments of fact such that no response to same is
required under the Pennsylvania Rules of Civil Procedure.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted in part. Denied in part. It is
entered into a Settlement Agreement on May 11, 2000
of the Settlement Agreement are denied. The Settlement
follows:
that Lettermen and the Township
' characterizations of the content
states, in relevant part, as
WHEREAS, there presently is pending in the Commonwealth Court of
Pennsylvania at No. 358 C.D. 2000, an appeal of the decision of the Cumberland
County Court of Common Pleas, which annulled Condition 5 of the Conditional
Use Decision CI-98-6 of the Board of Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted by Penn DOT,
Developer [Lettermen] shall provide the funds necessary to improve the roadway
and install electric traffic signals at the intersection o Rich Valley Road and
Carlisle Pike...; and
WHEREAS, both the Township and Developer [Lettermen] acknowledge
that the final outcome of the aforementioned appeal is uncertain and
unpredictable; and
WHEREAS, the Township and Developer [Lettermen] both desire to settle
and determine with finality, the present appeal in the Commonwealth Court in a
manner which will best serve the interests of the preset and future residents of
the Township of Silver Spring.
' Plaintiffs' motion failed to include the underlined text, which is contained in khe Conditional Use Decision
3
NOW, THEREFORE, in their mutual effort to settle and determine, with
finality, the aforementioned appeal, the Township and Developer [Lettermen] do
hereby agree to the following:
The Developer [Lettermen] shall pay and delive to the 'Township, upon
approval of a land development plan for the golf course proposed by
Developer [Lettermen] and prior to its recordation in the Office of the
Recorder of Deeds in and for Cumberland County and prior to the issuance of
any permits to construct the golf course or any po ion thereof, cash or check
in the sum of six thousand and no/00 dollars ($6,0(0.00) as i'ts nonrefundable
contribution to the Township to be utilized at the d scretion of the Township,
for the improvement of Rich Valley Road and/or the improvement and/or
signalization of the intersection of Rich Valley Road and Carlisle Pike.
Upon execution of this Agreement by Developer [Lettermen] and Township,
Township shall file a Praecipe to withdraw the aforementioned appeal.
This Agreement sets forth the entire agreement an d derstan4iing between the
parties hereto with regard to the settlement of the aforementioned appeal, and
there are no covenants, promises, agreements, conditions of understandings
either oral or written between said parties other than herein expressly set forth
or referenced. No subsequent alteration, amendm nt, change or addition to
this Agreement shall be binding on any party unle s reduced in writing and
signed by all parties.
This Agreement is made for the purposes previously set forth in the
introductory clauses hereof and shall be binding upon the Township, it
successors and assigns, and Developer [Lettermen] and its heirs, successors
and assigns.
18. Admitted in part. Denied in part. It is admitted hat the December 29, 2000 Order
struck Condition 6 and affirmed Condition 7, with minor modifications, as discussed in the
December 29, 2000 Opinion. It is denied that the substance of the December 29, 2000 Opinion
and Order are fully and completely described in this paragraph) of Plaintiffs' motion. It is further
denied that the facts surrounding the disposition of Conditions 6 and 7 are "material fact[s] as to a
necessary element of the cause of action" pled in Plaintiffs'
motion for summary judgment, as contemplated by Pa. R.Civ.P.
for purposes of the instant
035.2
4
19. Admitted in part. Denied in part. It is admitted at a written decision was issued on
September 14, 2001, notifying Lettermen of the September 12, 2001 re-approval of the
Preliminary Subdivision Plan, subject to the conditions specifi d in said''decision.
(a) Admitted in part. Denied in part. It is admitted only that Lettermen's Preliminary
Subdivision Plan was approved subject to
to provide a comprehensive traffic analysis.
Township previously conditioned its March
Conditional Use application, in part, upc
comprehensive traffic analysis, via Condition 4,
>n 17, which required Lettermen
It is further admitted that the
10, 1999 grant of Lettermen's
Lettermen's provision of a
cited above at paragraph 9. It is
denied that Condition 4 was "stricken by stipulati
January 12, 2000 Order. Rather, the January 12,
footnote 1, that:
"Silver Spring Township made a stip
Lettermen, Inc. met Condition 4 of the
Inc. provide a comprehensive traffic
provided Township with the require
analysis...' Thus, we do not address Cc
here."
It is denied that the facts surrounding the disp
"material fact[s] as to a necessary element of the
complaint, for purposes of the instant mot
contemplated by Pa. R.Civ.P. 1035.2
(b) Denied as stated. It is admitted only that
was approved subject to Condition 18,
funding for intersection improvements and/or
Rich Valley Road and Carlisle Pike. It is
5
incorporated into the Court's
Opinion stated, on page 11 at
:ion regarding whether
:cision, that Lettermen,
alysis. `Applicant has
comprehensive traffic
ition 4 of the Decision
ition of Conditions 4 or 17 are
of action" pled in Plaintiffs'
for summary judgment, as
is Preliminary Subdivision Plan
required Lettermen to provide
nalization at the intersection of
admitted that the Township
(c)
(d)
previously conditioned its March 10, 1999 gr t of Lettermen's Conditional Use
application, in part, upon Lettermen's funding of a traffic signal at the same
intersection, via Condition 5, as cited in Plai iff's motion at paragraph 9. It is
admitted that Condition 5 of the Conditional Use approval was annulled by this
Honorable Court by Order of January 12, 2000, which Order was appealed by the
Township, and which Conditional Use appeal as resolved via the May 11, 2000
Settlement Agreement cited above, at paragraph 17.
Admitted in part. Denied in part. It is admitted only that Lettermen's Preliminary
Subdivision Plan was approved subject to Condi
dimensions of Lettermen's proposed clubhouse
and dimensions of the proposed clubhouse
Township in conjunction with its March 10
19, which limited the size and
It is further admitted that the size
were previously limited by the
1999 approval of Lettermen's
Conditional Use Application, via Condition 6,I as cite& in Plaintiffs' motion at
paragraph 9. It is further admitted that the Courtmodified the terms of Condition 6
in its December 29, 2000 Decision. It is de+d that the facts surrounding the
disposition of Conditions 6 or 19 are "material fhct[s] as to a necessary element of
the cause of action" pled in Plaintiffs' complaint,) for purposes of the instant motion
for summary judgment, as contemplated by Pa. R?Civ.P. 1035.2
Admitted in part. Denied in part. It is admitted
Subdivision Plan was approved subject to Condi
the clubhouse. It is further admitted that use
limited by the Township in conjunction with
Lettermen's Conditional Use Application, via i
6
that Lettermen's Preliminary
20, which restricted the use of
the clubhouse was previously
March 10, 1999 approval of
dition 7, as cited in Plaintiffs'
i
motion at paragraph 9. It is further admitted at the Court modified the terms of
Condition 7 in its December 29, 2000 Decision. It is denied that the facts
surrounding the disposition of Conditions 7 or 20 are "material fact[s] as to a
necessary element of the cause of action" pled i Plaintiffs' complaint, for purposes
of the instant motion for summary judgment as contemplated by Pa. R.Civ.P.
1035.2
20. Admitted in part. Denied in part. It is admitted that a written decision was
issued on September 14, 2001, notifying Lettermen of the September 12, 2001 re-approval of the
Preliminary Land Development Plan, subject to the conditions ?pecified in said decision.
(a) Denied as stated. It is admitted only tha Lettermen's Preliminary Land
Development Plan was approved subject to Condition 22, which required
Lettermen to install a traffic signal at the intersection of Rich Valley Road and
Carlisle Pike, in accordance with the traffic study previously submitted by
Lettermen dated August 20, 1999.2 It is fur?her admitted that the Township
previously conditioned its March 10, 1999 grant of Lettermen's Conditional Use
application, in part, upon Lettermen's funding of a traffic signal at this intersection,
via Condition 5, as cited in Plaintiff's motion at paragraph 9. It is admitted that
Conditional 5 of the Conditional Use approval III was annulled by this Honorable
Court by Order of January 12, 2000, which Ord Ilr was appealed by the Township,
and which Conditional Use appeal was resolved via the May 11, 2000 Settlement
Agreement cited above, at paragraph 17.
2 Condition 22 further provided that no improvements were required at any o er intersection along Rich Valley Road.
7
(b) Admitted in part. Denied in part. It is admitted
"all conditions of Conditional Use must be
paragraph are conclusions of law to which
Pennsylvania Rules of Civil Procedure, and
(c) Admitted in part. Denied in part. It is
Land Development Plan was approved
Lettermen to provide a comprehensive traffic
that Condition 24 required that
" The remaining averments of this
o response is required under the
h are deemed to be denied.
only that Lettermen's Preliminary
to Condition 38, which required
ialysis. It is further admitted that
the Township previously conditioned its March 10, 1999 grant of Lettermen's
Conditional Use application, in part, upoln Lettermen's provision of a
comprehensive traffic analysis, via Condition 4, s cited above at paragraph 9. It is
denied that Condition 4 was "stricken by sti ulation." Rather, the Stipulation
provided that Lettermen had complied with the requirements of Condition 4. It is
denied that the facts surrounding the disposition of Conditions 4 or 3 8 are "material
fact[s] as to a necessary element of the
complaint, for purposes of the instant
contemplated by Pa. R.Civ.P. 1035.2
(d) Denied as stated. It is admitted only that
Development Plan was approved subject to
Lettermen to provide funding for intersection i
the intersection of Rich Valley Road and
the Township previously conditioned its
Conditional Use application, in part, upon
the same intersection, via Condition 5, as cited
of action" pled in Plaintiffs'
for (summary judgment, as
Lettermen's Preliminary Land
Condition 39, which required
and/or signalization at
isl Pike. It is further admitted that
rc 10, 1909 grant of Lettermen's
fen's funding of a traffic signal at
Plaintiffs motion at paragraph 9.
8
(e)
(fl
It is admitted that Conditional 5 of the
this Honorable Court by Order of January 12,
the Township, and which Conditional Use al
2000 Settlement Agreement cited above, at pal
Admitted in part. Denied in part. It is admitte
Land Development Plan was approved subject
size and dimensions of Lettermen's proposed c
the size and dimensions of the proposed clubh(
Use approval was annulled by
)00, which Order was appealed by
-al was Illresolved via the May 11,
;raph 1 T,.
only that Lettermen's Preliminary
Condition 40, which limited the
It is further admitted that
were previously limited by the
Township in conjunction with its March 10, 1999 approval of Lettermen's
Conditional Use Application, via Condition 6
paragraph 9. It is further admitted that the Cour
in its December 29, 2000 Decision. It is den
disposition of Conditions 6 or 40 are "material I
the cause of action" pled in Plaintiffs' complaint
for summary judgment, as contemplated by Pa. R
Admitted in part. Denied in part. It is admitted
Land Development Plan was approved subject to
use of the clubhouse. It is further admitted that u
as cited in Plaintiffs' motion at
modified the terms of Condition 6
that the facts surrounding the
s] as to a necessary element of
for purposes of the instant motion
Civ.P. 1035.2
that Lettermen's Preliminary
tion 41, which restricted the
of the clubhouse was previously
limited by the Township in conjunction with
Lettermen's Conditional Use Application, via
motion at paragraph 9. It is further admitted th
Condition 7 in its December 29, 2000 Decis
surrounding the disposition of Conditions 7 or
is March 10, 1999 approval of
Condition III7, as cited in Plaintiffs'
a the Court modified the terms of
i n. It is denied that the facts
41 are "material fact[s] as to a
?,II
9
necessary element of the cause of action" pled in Plaintiffs' complaint, for purposes
of the instant motion for summary judgment, as contemplated by Pa. R.Civ.P.
1035.2
21. Admitted.
22. Denied as stated. The following, only, is', admitted: On March 10, 1999,
Lettermen's Conditional Use application was approved by the Township, subject to various
conditions, including Conditions 4, 5, 6 and 7. Lettermen appealed this decision. The Court issued
an Order on January 12, 2000, affirming the Conditional Use Decision except with respect to
Condition 5, which required Lettermen's funding of intersection improvements and/or
signalization. This Condition was annulled. The January 12, 2000 Order was appealed by the
Township, following which Lettermen and the Township resolved the Conditional Use appeal
pursuant to the May 11, 2000 Settlement Agreement, reci?ed above at paragraph 17. On
December 29, 2000, the Court struck Condition 6 and modified Condition 7. On September 22,
1999, Lettermen's Preliminary Subdivision and Land Development Plans were approved by the
i
Township, subject to certain conditions. On September 14, 20,61, the Township re-approved the
Preliminary Subdivision and Land Development Plans, at Letternen's request, subject to the same
conditions initially applied to the Plans via the September 22, 1999 approvals. These conditions
included substantially the same requirements as were involved Illin the Conditional Use process, at
Conditions Nos. 4, 5, 6 and 7. It is denied that the facts surrounding the disposition of Conditions
4, 6, 7, 17, 19, 20, 38, 40, or 41 are "material fact[s] as to a ecessary' element of the cause of
action" pled in Plaintiffs' complaint, for purposes of the instant motion for summary judgment, as
contemplated by Pa. R.Civ.P. 1035.2
23. Admitted.
10
24. Denied as stated. It is admitted only that this s ntence is found at page seven (7) of
the nine (9) page Opinion issued December 5, 2002, a true and correct copy of which is attached
hereto as Exhibit "A."
25. This paragraph contains no averments of fact such that no response to same is
required under the Pennsylvania Rules of Civil Procedure.
26. Admitted.
27. Admitted.
28. Admitted.
29. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied.
Issues Before the Court for Purposes f Plaintiffs'
Partial Motion for Summary Jud ment
30. This
paragraph contains no averments of fact, such that no response to same is
required under the Pennsylvania Rules of Civil Procedure.
(a) Admitted in part. Denied in part. It is denied that the Settlement Agreement
was
entered into by Defendants in contemplation of anything other than the settlement
of the Township's appeal of the trial court's December 29, 2000 decision striking
Conditional Use Condition 5, which was then ending before the Pennsylvania
Commonwealth Court. It is further denied that Defendants contemplated any terms
or conditions beyond those expressly set forth within the Settlement Agreement, as
recited above at paragraph 17, when executing
To the contrary, Defendants
11
incorporated an integration clause into the iSettlement Agreement specifically
stating that:
This Agreement sets forth the entire ag eement and understanding
between the parties hereto with regar to the settlement of the
aforementioned appeal, and there are no covenants, promises,
agreements, conditions or understandings either oral or written
between said parties other than herein expressly set forth or
referenced. No subsequent alteration, amendment, change or
addition to this Agreement shall be binding on any party unless
reduced in writing and signed by all parties.
While it is admitted that Lettermen was required to apply for and obtain approval
of a Land Development Plan prior to constructing the golf course, it is denied that
the Settlement Agreement was intended by Defendants to apply to Lettermen's
Land Development Plan, which had previously been conditionally approved by the
Township on September 22, 1999, and which was subsequently re-approved by the
Township on September 14, 2001. It is denied that Lettermen was required to
apply for or obtain approval of a Subdivision Ilan in order to construct the golf
course project. It is further denied that the Settl Ilment Agreement was intended by
Defendants to apply to Lettermen's Subdivision Plan, which had previously been
conditionally approved by the Township on September 22, 1999, and which was
subsequently re-approved on September 14, 2001 }
(b) Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the
same are therefore deemed to be denied. To the e tent that ',a response is required, it
is denied that the Settlement Agreement prohibited Defendants from seeking
additional funding from Lettermen for intersection improvements or signalization at
the Intersection of Rich Valley Road and C lisle Pipe in conjunction with
12
Lettermen's application for Land Development Plan approval to construct the golf
course, or in conjunction with Lettermen's application for Subdivision Plan
approval to construct a residential housing subdivision on property connected to the
golf course. Pursuant to the express terms of the Settlement Agreement, the
Township was required to withdraw its Commonwealth Court appeal, which it did.
(c) Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the
same are therefore deemed to be denied. To the extent that a response is required, it
is denied that Defendants breached the terms and conditions of the Settlement
Agreement via the September 14, 2001 decisions.
(d) Denied as stated. It is admitted only that Letterrr en was represented by counsel and
that Lettermen appealed the September 14, 001 decisions. After reasonable
investigation, Defendants are without knowledge or information sufficient to form a
belief as to the truth of the remaining avermen s of this paragraph of Plaintiffs'
motion, as discovery answers have not yet been provided by Plaintiffs, and the
averments are therefore denied with strict proof demanded.
l
(e) Admitted in part. Denied in part. It is admitted only that Lettermen appealed the
September 14, 2001 decisions, that a decision was issued by the trial court on
December 5, 2002, that the Township's appeal of the trial court's decision remained
pending until January 24, 2003, and that Letter
golf course in the fall of 2001. After reasor
without knowledge or information sufficient to
remaining averments of this paragraph of Plain
i commenced excavation of the
investigation, Defendants are
n a belief as to the truth of the
' motion, as discovery answers
13
have not yet been provided by Plaintiffs, and
(g)
(h)
31.
with strict proof demanded.
Denied. These averments are denied as they
response is necessary pursuant to the Pennsylva
same are therefore deemed to be denied. To tl
necessary, it is denied that the Township bread
Settlement Agreement. To the contrary, the Tov
obligations under the Settlement Agreement.
Denied. These averments are denied as they a
response is necessary pursuant to the Pennsylvan
same are therefore deemed to be denied. To thf
necessary, after reasonable investigation, Defe:
information sufficient to form a belief as to t]
paragraph of Plaintiffs' motion, as discovery ar
by Plaintiffs, and the averments are therefore den
Denied. These averments are denied as they ar
the averments are therefore denied
conclusions of law to which no
Rules of Civil Procedure and the
extent that a response is deemed
I the terms and conditions of the
;hip honored in full its duties and
conclusions of law to which no
Rules of Civil Procedure and the
extent that a response is deemed
are without knowledge or
truth of the averments of this
have not yet been provided
with strict proof demanded.
conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the
same are therefore deemed to be denied. To
necessary, it is denied that the Township brea
further denied that the Township acted in bad i
Denied as stated. It is admitted only that, in
extent that a response is deemed
?d the Settlement Agreement. It is
arbitrarily, or vexaciously.
December 5, 2002 Lettermen II
lved the issue of funding of the
ptember 14, 2001 approvals in
decision, the trial court found that the parties had already
traffic signal in question, and modified Condition 18 of the
14
accordance with the Court's prior December 29, 2000
Agreement. (See Exh. "A").
32. Denied. These averments are denied as they
response is necessary pursuant to the Pennsylvania Rules of
therefore deemed to be denied. To the extent that a response is
the trial court ever determined that the Defendants breached th
Lettermen II, the Court rejected the Township's argument
conditions applied to its Subdivision and Land Development
approvals of same, by failing to appeal such decisions. TI
September 14, 2001 re-approvals of Lettermen's Plans cons
rather than mere re-approvals of the plans previously subn
1999 (as the Township argued). Based upon these detern
Lettermen's appeal of the September 14, 2001 approvals was
imposed via the September 14, 2001 re-approvals should be
Court and agreements of the parties. The Court modified Con
approvals (Conditional Use Decision condition 5) to reflect t:
the May 11, 2000 Settlement Agreement. (See Exh. "A").
and the May 11, 2000 Settlement
ire conclusions of law to which no
Civil Procedure and the same are
deemed (necessary, it is denied that
e Settlement Agreement. Rather, in
that Lettermen had accepted the
Plans vi the September 22, 1999
ie Court Ilthen determined that the
uted "new," appealable aPproval
s,
red and conditionally approved in
the Court concluded that
iblo, and that the Conditions
by the prior rulings of the
18 of the September 13, 2001
December 29, 2000 decision and
33. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied. To the extent that a response is
the doctrine of necessary implication applies to the terms of the
paragraph 17, above.
it is denied that
Agreement, set forth in
15
34. Admitted in part. Denied in part. It is
the statute of limitations as an affirmative defense so as t,
Pennsylvania Rules of Civil Procedure, and that no discovery
to this case. The remaining averments of this paragraph consi
response is necessary pursuant to the Pennsylvania Rules o
therefore deemed to be denied.
(a)
(b)
(c)
35
Denied. These averments are denied as they
response is necessary pursuant to the Pennsy
only that Defendants have raised
preserve same, as required by the
as yet been answered by the parties
ute conclusions of law to which no
Civil Procedure and the same are
conclusions of law to which no
Rules of Civil Procedure and
the same are therefore deemed to be denied. To the extent that a response is
deemed necessary, it is denied that the To,
Settlement Agreement, for the reasons set forth
Denied. These averments are denied as they ,
response is necessary pursuant to the Pennsyli
the same are therefore deemed to be denied.
Admitted in part. Denied in part. It is admitted
breached the terms of the
length Herein.
conclusions of law to which no
is Rules of Civil Procedure and
that Plaintiffs commenced this
action on September 8, 2005. The remaining averments of this paragraph are
denied, as they are conclusions of law to which
response is necessary pursuant
to the Pennsylvania Rules of Civil Procedure
the same are therefore deemed to
be denied.
Admitted with clarification. It is admitted
that (Defendants raised this
affirmative defense in order to preserve same, as required by the Pennsylvania Rules of Civil
Procedure, given the lack of any information or documentation
Plaintiffs' complaint regarding
16
the legal status of RVG and/or its relationship to Lettermen
golf course.
36. Admitted in part. Denied in part. RVG's
testimonial affidavit of Jeffrey Austin recently filed in si
judgment. The remaining averments of this paragraph are deni(
which no response is necessary pursuant to the Pennsylvania
same are therefore deemed to be denied.
37. Admitted with clarification. It is admitted that
defense in order to preserve same, as required by the Penn
that no discovery has yet been exchanged by the parties
request for production of documents upon Plaintiffs.
38. Admitted.
39. Denied as stated. While no facts are yet k]
exchanged in this case.
40. Admitted with clarification. It is admitted that
defense in order to preserve same, as required by the Pennsylv,
that no discovery has yet been exchanged by the parties bey
request for production of documents upon Plaintiffs.
41. Admitted.
42. Denied as stated. While no facts are yet kno
exchanged in this case.
43. Admitted with clarification. It is admitted that I
defense in order to preserve same, as required by the Pennsylva
17
or its involvement with the subject
status is admitted, based upon the
of Plaintiffs' motion for summary
1, as they are conclusions of law to
Rules of Civil Procedure and the
Defendants raised this affirmative
tnia Rules of Civil Procedure, and
and the Defendants' service of a
no discovery has yet been
is raised this affirmative
Rules of Civil Procedure, and
the Defendants' service of a
no discovery has yet been
;ndant§ raised this affirmative
Rules', of Civil Procedure, and
that no discovery has yet been exchanged by the parties
request for production of documents upon Plaintiffs.
44. Admitted.
45. Denied as stated. While no facts are yet
exchanged in this case.
46. Admitted with clarification. It is admitted
defense in order to preserve same, as required by the Pennsyl
that no discovery has yet been exchanged by the parties
request for production of documents upon Plaintiffs.
47. Admitted with clarification. It is admitted
affirmative defenses in order to preserve same, as required
Procedure, and that no discovery has yet been exchanged by
service of a request for production of documents upon
Ripeness:
48. Denied. These averments are denied as they
response is necessary pursuant to the Pennsylvania Rules of
therefore deemed to be denied.
the Defendants' service of a
own, nc discovery has yet been
I
Defendants raised this affirmative
ania Rules of Civil Procedure, and
and the Defendants' service of a
that Defendants raised various
y the Pennsylvania Rules of Civil
he parties beyond the Defendants'
conclusions of law to which no
vil Procedure and the same are
49. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
i
therefore deemed to be denied. By way of further answer, it is den?ied that the Court may
appropriately decide whether or not the Settlement Agreement as been breached on the facts of
record, as there are disputed facts surrounding the facts most
material to Plaintiffs' breach of
18
contract claim, i.e., regarding the intentions of the
evidenced by Plaintiffs' motion and Defendants' instant
50. Admitted.
51. Denied. It is denied that there is sufficient
to the Settlement Agreement, as
to same.
record to rule upon Defendants'
affirmative defenses, as no discovery has yet been exchanged by the parties.
52. Denied. These averments are denied as they are conclusions of law to which no
response is necessary pursuant to the Pennsylvania Rules of Civil Procedure and the same are
therefore deemed to be denied. By way of further answer, it i denied that that the material facts
surrounding the parties' intentions in entering into the Settlement Agreement are undisputed. To
the contrary, there is a significant fact dispute surrounding
Settlement Agreement.
53. Admitted, as no trial date has yet been scheduled,
54. Denied. It is denied that the disposition of a
economy where the fundamental question governing the sole
the parties to the contract in a breach of contract action, is
discovery has yet been undertaken.
WHEREFORE, Defendants respectfully request that
judgment be denied.
ie intentions of the parties to the
lispositive motion serves judicial
aim asserted, i.e., the intention of
subject of a fact dispute and no
s motion for summary
19
Respectfully
DATE:
Lavery, Faherty, ?oung & Patterson, P.C.
By:
20
. -- . ---.7 ) -%I -- a
225 Mark Street, Suite 30,
P.O. Box 1245
Harrisburg PA 171 8-1245
(717) 233- 633 (telephone)
(717) 233-7003 (facsimile)
Atty No. P A73693
ckovaly@l,tverylaw.com
Attys for Defendants
04?
Cheryl L
LETTERMEN, INC. and : IN THE 0
RICH VALLEY GOLF, : CUMBER]
Plaintiffs
V. CIVIL
SILVER SPRING TOWNSHIP and NO. 05
SILVER SPRING TOWNSHIP BOARD :
OF SUPERVISORS,
Defendants
OF COMMON PLEAS OF
COUNTY, PENNSYLVANIA
[ON - LAW
Civil (Term
I, Megan L. Renno, an employee 7th the law firm of avery, Faherty, Young & Patterson,
P.C. do hereby certify that on this "i day of December, 2006, I served a true and correct
copy of the foregoing Defendants' Answer to Plaintiffs' M ion for Summary Judgment, via
U.S. First Class mail, postage prepaid, addressed as follows:
Gregory H. Knight, Esquire
Knight & Associates
11 Roadway Drive, Suite B
Carlisle, PA 17013
Co-Counsel for Plaintiffs
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
Co-Counsel for Plaintiffs
M /L. RLnno,
L ga ecretary to heryl L.
21
:r"' C7t
VTl
C,f? 7
LETTERMAN, INC. and
RICH VALLEY GOLF, INC.,
Plaintiffs
V.
SILVER SPRING TOWNSHIP and
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 05-4689
: CIVIL ACTION - LAW
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter the appearance of the firm of Martson, Deardorff, Williams, Gilroy, and Otto on
behalf of the Plaintiffs.
Dated: January 30, 2007
"4 \,-/
Hu ert X. Gi y, Esquire
Martson La Offices
10 East High Street
Carlisle, PA 17013
(717) 243-3341
ID #29943
Please withdraw the appearance of the firm of Broujos & Gilroy, P.C. on behalf of the above
Plaintiffs.
Dated: January 30, 2007
A:?--
H4KerX Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
ID #29943
r^?
C? CI
co
t 1
LETTERMEN, INC. AND IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, INC., CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
SILVER SPRING TOWNSHIP AND
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
DEFENDANTS 05-4689 CIVIL TERM
IN RE: PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT ON LIABILITY
BEFORE BAYLEY. J. AND EBERT, J.
ORDER OF COURT
AND NOW, this day of February, 2007, the motion of plaintiffs for
partial summary judgment on liability for breach of the Settlement Agreement dated
May 14, 2000, IS GRANTED.
By the
Edgar B. B
Hubert X. Gilroy, Esquire oc
For Plaintiffs I'`f
Cheryl L. Kovaly, Esquire O
225 Market Street y
Suite 304 0?`? ?!!.l?
P.O. Box 1245
Harrisburg, PA 17108-1245
For Defendants :sal
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4'^.f
LETTERMEN, INC. AND IN THE COURT OF COMMON PLEAS OF
RICH VALLEY GOLF, INC., CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
SILVER SPRING TOWNSHIP AND
SILVER SPRING TOWNSHIP BOARD
OF SUPERVISORS,
DEFENDANTS 05-4689 CIVIL TERM
IN RE: PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT ON LIABILITY
BEFORE BAYLEY, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., February 21, 2007:--
On June 21, 2006, plaintiffs, Lettermen, Inc., and Rich Valley Golf, Inc., filed a
complaint against defendants, Silver Spring Township and Silver Spring Township
Board of Supervisors. Plaintiffs aver that Rich Valley Golf, Inc. operates under the
business name "Rich Valley Golf' and is a subsidiary and successor in interest and
business affiliate with Lettermen, Inc. The following facts are admitted by defendants.
Lettermen, Inc., obtained approvals in Silver Spring Township, Cumberland County, to
construct a golf course and related facilities.' On March 10, 1999, the Township
approved a conditional use application with several conditions. Condition 5 required
Lettermen to fund roadway improvements and install electric traffic signals at the
' Construction has been completed.
05-4689 CIVIL TERM
intersection of Rich Valley Road and Carlisle Pike.' Lettermen filed a land use appeal
in this court challenging some of the conditions, including Condition 5. On January 12,
2000, an order was entered annulling Condition 5. The Township filed an appeal to the
Commonwealth Court of Pennsylvania. The appeal was withdrawn following the
execution of a Settlement Agreement on May 14, 2000, which provides:
WHEREAS, there presently is pending in the Commonwealth
Court of Pennsylvania at No. 358 C.D. 2000 an appeal of the decision of
the Cumberland County Court of Common Pleas, which annulled
Condition 5 of the Conditional Use Decision CU-98-6 of the Board of
Supervisors of Silver Spring Township; and
WHEREAS, Condition 5 required that if warranted by
PennDOT, Developer shall provide the funds necessary to improve
the roadway and install electric traffic signals at the intersection of
Rich Valley Road and Carlisle Pike, which funding requirements
would be reduced by the amount, if any, of prior developer
contributions made specifically for such purposes at said
intersection; and
WHEREAS, both the Township and the Developer acknowledge
that the final outcome of the aforementioned appeal is uncertain and
unpredictable; and
WHEREAS, the Township and Developer both desire to settle
and determine, with finality, the present appeal in the Commonwealth
Court in a manner which will best serve the interests of the present and
future residents of the Township of Silver Spring.
NOW, THEREFORE, in their mutual effort to settle and determine,
with finality, the aforementioned appeal, the Township and Developer do
hereby agree to the following:
1. The Developer shall pay and deliver to the Township,
upon approval of a land development plan for the golf course
proposed by Developer and prior to its recordation in the Office of the
Recorder of Deeds in and for Cumberland County and prior to the
issuance of any permits to construct the golf course or any portion thereof,
cash or check in the sum of six thousand and no/00 dollars ($6,000.00)
as its nonrefundable contribution to the Township to be utilized at
the discretion of the Township, for the improvement of Rich Valley
' The costs for such improvements could be substantial.
-2-
05-4689 CIVIL TERM
Road and/or the improvement and/or signalization of the intersection
of Rich Valley Road and Carlisle Pike.
2. Upon execution of this Agreement by Developer and
Township, Township shall file a Praecipe to withdraw the aforementioned
appeal.
3. This Agreement sets forth the entire agreement and
understanding between the parties hereto with regard to the settlement of
the aforementioned appeal, and there are no covenants, promises,
agreements, conditions or understandings either oral or written between
said parties other than herein expressly set forth or referenced. No
subsequent alternation, amendment, change or addition to this
Agreement shall be binding on any party unless reduced in writing and
signed by all parties.
4. This Agreement is made for the purposes previously set
forth in the introductory clauses hereof and shall be binding upon the
Township, its successors and assigns, and Developer and its heirs,
successors and assigns. (Emphasis added.)
On September 14, 2001, the Township re-approved Lettermen's preliminary
subdivision plan and land development plan. The re-approvals were made subject to
the same conditions attached to the conditional use approval of March 10, 1999.
Lettermen filed land use appeals in this court challenging both re-approved plans. On
December 5, 2002, an order of relief was entered that provided that the conditions
already dealt with by the court are not viable conditions for the revised subdivision and
revised land development plans.
In the complaint, plaintiffs seek monetary damages, alleging that "The
Defendants' September 14, 2001 decisions [the re-approvals] constituted a breach of
the May 14, 2000 Settlement Agreement between the parties. 113 Defendants filed
3 The damages sought are legal fees, costs, carrying costs, debt service, maintenance,
equipment, infrastructure, administrative costs and lost revenue related to the additional
litigation and delay in the development of golf course and facilities.
-3-
05-4689 CIVIL TERM
preliminary objections in the form of a demurrer which were denied by an order,
supported by a written opinion on September 20, 2006. Plaintiff filed a motion for
partial summary judgment on liability which was briefed and argued on January 24,
2007. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of
Pennsylvania set forth the standard for deciding a motion for summary judgment. A
court:
must view the record in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of material fact must be
resolved against the moving party. Pennsylvania State University v. County of
Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a
motion for summary judgment, a non-moving party "must adduce sufficient
evidence on an issue essential to his case and on which he bears the burden of
proof such that a jury could return a verdict in his favor. Failure to adduce this
evidence establishes that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News
Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996).
In Hart v. Arnold, 884 A.2d 316 (Pa. Super. 2005), the Superior Court of
Pennsylvania stated:
To successfully maintain a cause of action for breach of contract
the plaintiff must establish: (1) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the contract, and (3)
resultant damages. Gorski v. Smith, 812 A.2d 683 (Pa.Super. 2002),
appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (citing Corestate Bank,
N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999)).
The fundamental rule in interpreting the meaning of a contract is to
ascertain and give effect to the intent of the contracting parties.
The intent of the parties to a written agreement is to be regarded as
being embodied in the writing itself. The whole instrument must be
taken together in arriving at contractual intent. Courts do not
assume that a contract's language was chosen carelessly, nor do
they assume that the parties were ignorant of the meaning of the
language they employed. When a writing is clear and unequivocal,
its meaning must be determined by its contents alone.
-4-
05-4689 CIVIL TERM
Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777
A.2d 418, 429 (2001) (internal citations and quotation marks omitted). "In
ascertaining the intent of the parties to a contract, it is their outward
and objective manifestations of assent, as opposed to their
undisclosed and subjective intentions, that matter." Espenshade v.
Espenshade, 729 A.2d 1239, 1243 (Pa.Super.1999). Further, "specific,
express written language is not necessary for a particular
contractual intent to exist in an agreement. Rather, it is common for
the intent of contracting parties to be inherent in the totality of their
contract." Murphy, supra at 596, 777 A.2d at 432. "In the absence of
an express provision, the law will imply an agreement by the parties
to a contract to do and perform those things that according to
reason and justice they should do in order to carry out the purpose
for which the contract was made and to refrain from doing anything
that would destroy or injure the other party's right to receive the
fruits of the contract." Slater v. Pearle Vision Center, Inc., 376
Pa.Super. 580, 546 A.2d 676, 679 (1988) (describing what is known as
"doctrine of necessary implication"). "The meaning of an unambiguous
written instrument presents a question of law for resolution by the
court." Murphy, supra at 591, 777 A.2d at 430. (Emphasis added.)
In Slater v. Pearle Vision Center, Inc., 376 Pa. Super. 580 (1988), the Superior
Court stated:
Thus, where it is clear that an obligation is within the contemplation of the
parties at the time of contracting or is necessary to carry out their
intentions, the court will imply it. Gallagher v. Upper Darby Township, 114
Pa.Commw. 463, 539 A.2d 643, 467 (1988). This is true even where the
contract itself is not ambiguous. Id.; [Frickert v. Deiter Bros. Fuel Co., Inc.,
464 Pa. 596 (1975)]. Since the doctrine of necessary implication serves not to
instruct the court as to which of two possible interpretations of a contract should
be adopted, but rather to allow the court to enforce the clear intentions of the
parties and avoid injustice, the court does not need to find an ambiguity before it
will employ the doctrine. (Emphasis added.)
A settlement agreement is to be construed pursuant to general contract rules. See
Amerikohl Mining, Inc. v. Mount Pleasant Township, 727 A.2d 1179 (1999). In the case
sub judice, plaintiffs correctly maintain that the Settlement Agreement left the trial court order
-5-
05-4689 CIVIL TERM
of January 12, 2000 in place in exchange for a payment of $6,000 to be used by the Township
for the improvement of Rich Valley Road and/or the signalization and/or improvement of its
intersection with Carlisle Pike. In its brief, while acknowledging that the settlement agreement
is unambiguous, defendants maintain that summary judgment should be denied "because
Plaintiffs endeavor to interpret the Settlement Agreement in a fashion wholly contrary to the
express terms of same and wholly contrary to the non-moving party's stated intention
regarding same." Defendants further argue that the integration clause in the Agreement limits
it to the terms expressly set forth therein. Defendants position belies the law. The meaning of
an unambiguous settlement agreement presents a question of law for resolution by the court,
and in interpreting the contract, the court, in the absence of an express provision, may imply
an agreement to perform those things according to reason and justice that must be done in
order to carry out the purpose of the contract and refrain from doing anything that would
destroy or injure the other party's right to receive the fruit of the contract. Slater v. Pearle
Vision Center, Inc., supra. We have already set forth in the opinion in denial of defendants'
demurrer to plaintiffs' complaint that:
[t]he specific terms of the Settlement Agreement between Lettermen, Inc., and
Silver Spring Township, which are not ambiguous, provided for the withdrawal of
the appeal and a $6,000 payment "to be utilized at the discretion of the
Township, for the improvements of Rich Valley Road and/or the
improvement and/or signalization of the intersection of Rich Valley Road
and Carlisle Pike," bringing finality to the dispute over Condition 5 that was
annulled by an order of court, and which became final when the appeal was
withdrawn. (Emphasis added.)
Under defendants' interpretation of the Settlement Agreement, plaintiffs would have
received nothing in return for their $6,000 payment. To the contrary, despite the Settlement
-6-
05-4689 CIVIL TERM
Agreement being silent as to the imposition of Condition 5, its execution resulted in the finality
of the trial court annulling Condition 5. A party must refrain from doing anything that would
destroy or injure the other party's right to receive the fruits of the contract. Hart v. Arnold,
supra. By reimposing Condition 5, we find as a matter of law that defendants breached the
Settlement Agreement. Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this "ZIS day of February, 2007, the motion of plaintiffs for
partial summary judgment on liability for breach of the Settlement Agreement dated
May 14, 2000, IS GRANTED.
By the
Edgar 13? Bayley, J.
Hubert X. Gilroy, Esquire
For Plaintiffs
Cheryl L. Kovaly, Esquire
225 Market Street
Suite 304
P.O. Box 1245
Harrisburg, PA 17108-1245
For Defendants
:sal
-7-
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LETTERMEN, INC., and No. 2005-4689
RICH VALLEY GOLF,
Plaintiffs
V.
CIVIL ACTION - LAW
SILVER SPRING TOWNSHIP and SILVER
SPRING TOWNSHIP BOARD OF SUPERVISORS:
To the Prothonotary:
Defendants
PRAECIPE TO SETTLE AND DISCONTINUE.
WITH PREJUDICE
Please mark the above captioned action settled and discontinued, with prejudice.
KNIGHT & ASSOCIATES, P.C.
Date: G J g h l 2,000
1 Gregory H. Knight, Esquire
Attorney I.D. No. 30622
11 Roadway Drive, Suite B
Carlisle, Pennsylvania 17013
(717) 249-5373
Attorney for Plaintiffs
MARTSON LAW OFFICE
1,(-ZAW-x . S; Ire, 1. _
Hubert X. Gilroy, Esquire
10 E. High Street
Carlisle, Pennsylvania 17013
(717) 243-1850
Attorney for Plaintiffs
Cheryl L. Kovaly, Esquire
Lavery, Faherty, Young & Patterson, P.C.
225 Market Street, Suite 304
P.O. Box 1245 ,
Harrisburg, Pennsylvania 17108
Attorney for Defendant
KNIGHT & ASSOCIATES, P.C.
(CAAJ
Gregory H. ight, Esquire
Attorney I.D. No. 30622
11 Roadway Drive, Suite B
Carlisle, Pennsylvania 17013
(717) 249-5373
Attorney for Plaintiffs
MARTSON LAW OFFICE
J-tU6"'_?K. 6;.Jv?j I#! 4c,
Hubert X. Gilroy, Esquire
10 E. High Street
Carlisle, Pennsylvania 17013
(717) 243-1850
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LETTERMEN, INC., and No. 2005-4689
RICH VALLEY GOLF,
Plaintiffs
V.
CIVIL ACTION - LAW
SILVER SPRING TOWNSHIP and SILVER
SPRING TOWNSHIP BOARD OF SUPERVISORS:
Defendants
CERTIFICATE OF SERVICE
I hereby certify that I am this Z51ay of pltwl , 2008, causing a copy of the Praecipe to
Discontinue to be served upon the following person in the manner indicated: By First Class United
States Mail, postage pre-paid on:
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