Loading...
HomeMy WebLinkAbout05-5863THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO.2005-58'6,3 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - EQUITY SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 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 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005- 5"P63CIVIL TERM CIVIL ACTION - EQUITY COMPLAINT IN EQUITY AND NOW, this 10th day of November 2005, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Complaint against the defendants, DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL: 1. The Plaintiffs,Thomas R. Benjey and Ann E. Benjey, are adult individuals residing at 546 East Springville Road, Carlisle, Pennsylvania 17013. 2. The Defendants, Donald E. Diehl and Suzanne Diehl, are adult individuals residing at 110 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. The Defendants, Raymond E. Diehl and Genevieve A. Diehl, are adult individuals residing at 315 Myers Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 4. The Defendants have filed a subdivision and land development plan with South Middleton Township which is now known as the Netherby Development. 5. Said lands adjoin the property of the Plaintiffs. 3 6. Pursuant to their plans, the Defendants submitted stormwater plans to manage the storm water created by the Netherby Development. 7. Beginning in 2004 and continuing in 2005, the Plaintiffs have experienced excessive stormwater on their lands with the alarming development of sinkholes on their land. 8. The Plaintiffs hired Liberty Environmental, Inc. to inspect the site and examine the stormwater plans and implementation of those plans by the Defendants with regard to the Netherby Development. 9. The experts, James P. Cinelli, P.E., and Walter M. Leis, P.G., on behalf of Liberty Environmental, Inc., have prepared a report, a copy of which is attached and marked as Exhibit "A" and is incorporated by reference and made a part of this Complaint. 10. The report finds serious deficiencies in the stormwater plans and implementation of those plans by the Defendants. 11. The report finds that the Netherby Development significantly adds to the stormwater directed onto the lands of the Plaintiffs, and finds that the sinkholes are caused by the excessive stormwater created by the Netherby project. 4 12. The expert report also makes certain recommendations to correct the stormwater problems created by the Defendant's Netherby project. 13. The Plaintiffs seek the following relief: A. Injunctive relief by the Court which prohibits the Netherby project from proceeding until its stormwater plan is updated and corrected and remedies applied to the lands of the Plaintiffs. B. That the Defendants be directed to install a new storm sewer line which conveys the stormwater flow beyond the Plaintiffs property. C. Take additional remedial actions on the Netherby site to increase the amount of water detained on the property. D. Repair and correct any sinkholes which have developed on the lands of the Plaintiffs and commit to repairing any new sinkholes which are created on the lands of the Plaintiffs. E. Reasonable expert costs and legal fees and expenses of the Plaintiffs for this action as well as time required to implement the above remedies. WHEREFORE, the Plaintiffs, Thomas R. Benjey and Ann E. Benjey, seek relief as set forth above in addition to any other remedies which the Court deems appropriate in this case. Respectfully IRWIN & By: Marc A. It, III, Esquire 60 W t Po 7fretS et Carlisle, Pe 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for plaintiffs, Thomas and Ann Benjey Date: November 10, 2005 5 EXHIBIT "A" EXPERT REPORT for FLOODING AND SINKHOLE DEVELOPMENT at the THOMAS AND ANN BENJEY PROPERTY 546 EAST SPRINGVILLE ROAD SOUTH MIDDLETON TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA Prepared by: James P. Cinelli, P.E. and Walter M. Leis, P.G. Liberty Environmental, Inc. 10 N. 5T" Street, Suite 800 Reading, PA 19601 Liberty Project No. 050129 July 1, 2005 Expert Report for Flooding and Sinkhole Development at the Thomas and Ann Benjey Property 546 East Springville Road, South Middleton Township Cumberland County, Pennsylvania This report was prepared by Liberty Environmental, Inc. under the direct supervision of Mr. James P. Cinelli, P.E. and Mr. Walter M. Leis, P.G. The opinions expressed herein are based on a reasonable degree of scientific certainty. r L419- Date RO?E5SIONAL WA NUCH LEIS GEOL 7 / oS n Walter a r Date Senior Hydrogeologist By affixing my seal to this document, I am certifying that the information is true and correct. I further certify I am licensed to practice in the Commonwealth of Pennsylvania and that it is within my professional expertise to verify the correctness of the information. i Principal Consultant TABLE OF CONTENTS 1. INTRODUCTION .............................................................................................................1 2. PURPOSE AND SCOPE ...................................................................................................4 3. SITE SETTING .................................................................................................................5 4. EVALUATION METHODOLOGIES AND FINDINGS ..............................................6 4.1 SITE INSPECTION .............................................................................................6 4.2 TOWNSHIP ORDINANCE REVIEW ................................................................7 4.3 REVIEW OF REPORTS AND PLANS FOR NETHERBY SUBDIVISION ....9 4.11 Environmental Assessment Report ...................................................................... 9 4.3.2 Stormwater Management Report and Development Plans ................................11 4.4 RUNOFF CALCULATIONS ............................................................................12 4.5 REVIEW OF GEOLOGIC MAPS ....................................................................15 5. OPINIONS .......................................................................................................................17 6. REFERENCES ................................................................................................................20 LIST OF FIGURES Figure 1 Recent Sinkholes on Benjey Property ...............................................................................3 Figure 2 PA Topographic and Geologic Survey Karst Map ..........................................................16 LIST OF EXHIBITS Exhibit A: Curriculum Vitae Exhibit B: Portion of Dawood Engineering Plan Showing Pre-Developed Sinkholes/Depressions and Drainage Area 2 Boundaries Exhibit C: Stormwater Runoff Calculations ii 1. INTRODUCTION Liberty Environmental, Inc. (Liberty) was retained by Thomas and Ann Benjey to perform a technical evaluation of flooding and sinkhole development problems that have been occurring on their property since the development of the "Netherby" residential subdivision Further, Liberty was requested to determine if these problems and resulting damages were caused by the construction of the subdivision, and if the damages could have been avoided by the developer. The individuals conducting this evaluation were James P. Cinelli, P.E. and Walter M. Leis, P.G. The full curriculum vitae of Mr. Cinelli and Mr. Leis are presented at the end of this report in Exhibit A. Liberty's evaluation included a review of plans, maps, reports and calculations for the Benjey property and the Netherby subdivision. The findings of the evaluation, as well as our opinions concerning the flooding and resulting damage, are detailed in this expert report. The opinions expressed herein are based on a reasonable degree of scientific certainty. The Benjey property is 14.6 acres in size, and is located at the located at the northwest corner of the intersection of Lindsey Road and East Springville Road in South Middleton Township, Cumberland County, Pennsylvania. The property has, since its first habitation, been primarily a residence with surrounding agricultural land. The property is situated immediately downgradient from the Netherby subdivision, which is a single-family residential development encompassing 58.6 acres. Phase 1 of the subdivision, which encompasses 10.2 acres, began to be constructed in September 2003. Consequent and coincident to the construction of the development, increased stormwater runoff has been observed on the Benjey property, resulting in flooding of portions of the property. Also, a series of sinkholes has developed on the Benjey property in a pattern that causes concern to the property and the residence situated thereon. The flooding and sinkhole development are a significant threats to safety and property, and thus require mitigation and long- term maintenance. The locations of the flooding and the most visible sinkholes are shown in Figure 1. The sinkholes, it must be stated, were only activated after construction activity was begun on the Netherby development. The sinkholes located in Figure 1 were confirmed in the field by a walkover inspection of the property by representatives of Liberty and Mr. Benjey. This walkover was conducted on June 1, 2005. There are also other areas on the Benjey property where sinkholes are being activated by subsurface drainage or runoff but are not yet open. The active sinkholes identified in Figure 1 opened between 2004 and 2005. It can be seen that these sinkholes are "walking" in a direction that points toward the Benjey residence and outbuildings. 2 Figure 1 Recent Sinkholes on Benjey Property Notes. 1 Sinkholes 1-3 opened up in 2004 2. Sinkhole 4 opened in 2005 r' s i ?J w r J„ S e F. F' a a s Yw .. I.' a V , 1 $ $ T]3 Jk?. OGCV agey 3ooM S I.T ' age '!5G z la 1'„ 1 . ec- n I Y'Q?Q ? +c acoA r r<y 4 a t c{ v } ? 7r F _ Z ? `a' 25' frOlrl CMlH? t . Lindsey Road 13' from edge of '°'4i _ - >i ' f • g wro ?o sewer e?sement,? ft+•,,.. _ ?k+}a t _ r- < 7` , 1 ?q 'hy p ..-- 4 a?LG lVCy }.Y"1(?? ?? pry.ws•Y 4An]fL ? ?? ? ' ' # M ' Lu.B#? 25 hm afr?NHV d tviwyr ? I ? J._iM.6Z.1218N.`µ? Gw' 3 T- rj 7 7 No Scale 3 2. PURPOSE AND SCOPE In order to prepare this report, Liberty conducted research and field inspection activities to determine the following: • What is the cause of the flooding that has been observed on the Benjey property since the construction of the Netherby subdivision? • What is the cause of the sinkhole development that has been observed on the Benjey property since the construction of the Netherby subdivision? • What is the likelihood and possible magnitude of future flooding and sinkhole development on the Benjey property? What can be done to correct the existing flooding and sinkhole hazards on the Benjey property? Specifically, Liberty completed the following tasks: • A visual inspection of the Benjey property and Netherby subdivision. • A review of the drawings, reports and design calculations for the Netherby subdivision. • A review of South Middleton Township ordinances. • A review of publications regarding stormwater runoff in karst areas. • A review of geologic maps for the site area. • Preparation of an expert report documenting the findings of the inspection and research, and providing expert opinions addressing the questions listed above. The results of these tasks are detailed in the following sections of this report. 4 3. SITE SETTING The Benjey property is located at the northwest corner of the intersection of Lindsey Road and East Springville Road in South Middleton Township, Cumberland County, Pennsylvania. The property is occupied by a two-story residence, a bam and several outbuildings. The residence and other structures are all located on the southeast corner of the property. The remainder of the property is primarily used for growing hay. Two sanitary sewer easements intersect the property. The property is adjoined to the west and north by the Netherby (formerly "Ashton") residential subdivision. The entire subdivision is to include 113 single-family residential lots. Phase I of the subdivision, which includes 16 lots, has been under construction since September 2003. At the time of the site investigations performed by Liberty, 11 homes were either constructed or under construction. Stormwater runoff from approximately 49 acres of the Netherby development discharges to the Benjey property. Approximately 47 acres discharges to a detention basin located along the east side of the development. The detention basin outflow first crosses a property owned by George and Grace Steigelman, and then flows onto the Benjey property. Approximately two acres of the Netherby development, which includes lots 1 through 4, discharge directly to the Benjey property. The entire site area that encompasses the Netherby subdivision and the Benjey property is underlain by the Elbrook and Zullinger geological formations. The engineering characteristics of these formations are described by Geyer and Wilshusen as follows: Elbrook Formation: "Light gray, finely laminated, siliceous limestone with interbeds of dolomite and chert ...Thorough investigations for sinkholes and pinnacle... surfaces should be undertaken." • Zullinger Formation: "Interbedded medium-gray limestone and dolomite. Thorough investigation for solution cavities should be undertaken." 5 4. EVALUATION METHODOLOGIES AND FINDINGS The above-mentioned tasks were conducted by Messrs. Cinelli and Leis, or under their direction. The methodologies followed and the findings of the evaluation are presented in the following sections. 4.1 SITE INSPECTION On May 18, 2005, Mr. Cinelli performed a walkover inspection of the Benjey property. A second walkover inspection was conducted by both Mr. Cinelli and Mr. Leis on June 1, 2005. Significant observations from these site inspections were as follows: 1. Stormwater from the Netherby subdivision flows overland across the Benjey property until it meets an 18-inch diameter corrugated metal culvert that runs beneath East Springville Road. The culvert conveys stormwater flows from the Benjey property to a farmed property on the east side of East Springville Road. Grass in the low area on the Benjey property that adjoins the culvert was observed to be sparser than other grassed areas of the property. This is common in areas that experience water inundation. 2. Road widening was recently performed along Lindsey Road from its intersection with East Springville Road to the Netherby subdivision. According to South Middleton Township officials, the road was widened approximately two feet. 3. The June 1, 2005 walkover identified several large active sinkholes on the Benjey property. It could be seen from the root structures of plants growing near the active sinkholes that a number had opened up in the summer and fall of 2004 because stems and roots of last year's plants were the only plants exposed on the soil prisms that formed the sinks. Other, smaller sinkholes were observed to have opened more recently since plant stems and roots contained in the soil prisms were apparently from this current growing season, since the exposed roots and stems were actively growing. While conducting the survey, Liberty located other potential new sink areas that, while showing the characteristic "ring" structures of cracks in the soil, have not yet opened up and dropped 6 from 2 to 7 feet, as seen in the others. Liberty advised Mr. Benjey not to walk or cross over any active or "incipient" sink zones. Many of these sinks were coincident with the recently installed sewer connection line and residential development construction. No drawings or subsurface information was provided to determine whether any sinkhole zones were encountered during construction of the sewer line. 4. No sinkholes or depressions were observed in the Netherby subdivision during either walkover. 5. Roof drains from the houses on Lots 1 and 4 were observed to discharge to subsurface infiltration trenches. 4.2 TOWNSHIP ORDINANCE REVIEW Liberty reviewed the following South Middleton Township ordinances: 1. Land Development Ordinance No. 1 of 2001, Article VII: Site Planning and Design Requirements (January 2001). 2. Land Development Ordinance No. 1 of 2001, Article X: Special stormwater Management Planning and Design Requirements (January 2001). Section 710 of the Site Planning and Design Requirements contains a number of requirements for stormwater management facilities on developed properties. The following paragraphs highlight specific sections of the ordinance and our responses to whether the design of stormwater management facilities that were designed for Netherby subdivision meet the requirements of the ordinance. Section 710.c.(3): "...Post-development drainage patterns shall simulate pre-development patterns." The direction of stormwater flow does not change significantly between the pre- development and post-development conditions. However, Drainage Area 1, which flows toward the natural depression in the rear of the Benjey property (where sinkhole development has been occurring), was reduced in size between the pre-and post-developed conditions. Furthermore, infiltration devices that were installed at some of the homes in this 7 drainage area reduce the volume of smrmwater runoff, as they were designed to completely infiltrate the 2-year/24-hour design storm. Section 710.c.(4)(a). "Runoff Capture Design Storm - The net increase in the 2-yr/24-hour frequency storm shall be infiltrated through BMPs...In areas underlain by limestone, BMPs for infiltration shall be designed to simulate the natural infiltration rate on the site prior to development. Dry wells and infiltration trenches shall be prohibited in limestone areas." Despite the ordinance's clear prohibition on the use of infiltration trenches in limestone areas, these were added to the development's stormwater facility design as evidenced by a fax from Dawood Associates to South Middleton Township dated April 12, 2005. The use of infiltration trenches was observed at the constructed homes on Lots I and 4 during the walkthrough. Section 710.c.(4)(c)(i): "Permanent control measures/facilities shall be designed to assure that the maximum rate of stormwater runoff is not greater after development than prior to development at all points of discharge from the subject site for design storms of 2, 5, 10, and 25-year return frequency storm events." The stormwater management facility design included an assessment of pre- and post-developed flow rates, and design of stormwater detention facilities aimed at reducing post-developed peak flow rates to below the pre-developed flow rates. However, as noted below in the review of the plans for Netherby subdivision, the pre- developed drainage area was grossly overestimated because the loss of surface water to sinkholes and/or depressions was ignored. ¦ Section 710.c.(4)(c)(v): "Calculations of the post-development peak discharge shall assume that all areas being disturbed during construction will be reduced by one Hydrologic Soil Group category level (e.g. HaB is reduced to HaC, etc.)" As noted below in the review of' reports for the Netherby subdivision, this requirement was not met in the development's stormwater management plan. 8 4.3 REVIEW OF REPORTS AND PLANS FOR NETHERBY SUBDIVISION Liberty reviewed the following reports and plans for the Netherby (Ashton) subdivision: 1. Environmental Impact Assessment Report, Fisher Mowery and Rosendale & Associates, Inc., April 2000. 2. Stormwater Management and Drainage Study and Erosion and Sedimentation Control Plan, Terry L. Fought, P.E., April 2000. 3. Proposed Grading/Utility Plan (Drawings 3 of 9 and 4 of 9), Dawood Engineering, Inc., April 24, 2003. 4. Inlet Drainage Area Maps, Dawood Engineering, Inc., December 20, 2002. 5. Erosion and Sedimentation Plan and Details, Dawood Engineering, Inc., December 20, 2002. A brief summary of these documents and findings of our review of the documents are summarized in the sections below. 4.3.1 Environmental Assessment Report The Environmental Assessment (EA) was conducted in accordance with section 714 of the South Middleton Township Land Development Ordinance. As part of this Environmental Assessment, a geophysical contractor, Enviroscan, Inc., was contracted to, presumably, identify and locate potential geological hazards for the Netherby subdivision and, by inference from the ordinance, identify such impacts on the client property and properties adjoining. The primary author of the Environmental Assessment was, further, required to identify potential impacts and propose mitigation or alternatives to mitigate the impacts. The EA was to answer specific questions regarding site conditions as they relate to environmental impacts. This EA was completed as a response to the ordinance requirements and, while it lists responses to each requirement of the ordinance, it is for the most part, silent concerning even the presence of karst features. We are in the following paragraphs highlighting specific sections of the EA and our responses to whether the EA contractor had provided the necessary detail concerning the required information or conclusions. 9 ¦ EA section 714A (4). The requirement herein is for a detailed identification of the physical resources including a narrative of the qualitative and quantitative aspects of the resources mentioned. [While no real discussion of site environmental resources was presented, the EA contractor provided the geophysical investigation report as an appendix to the EA with no narrative of the significance of the report's findings. Enviroscan completed a significant amount of detailed geophysical work and located rock structure, interpreted regolith thicknesses, and incipient sinkholes identified as soil pipes. Liberty feels that the lack of discussion indicates that the EA author did not understand the significance of the data that was presented.] ¦ EA section 714.d(15). This section requires the author of the EA to discuss the environmental effects, both positive and negative, that the proposed development would cause, and the expected duration of these effects. [These effects are usually termed environmental "impacts ". The EA states, in very brief terms, that the "existing area does not possess any special amenities that will be disturbed by conversion from agriculture to housing. " There is no discussion at all concerning negative consequential effects as required by the ordinance, even though the geophysical report is quite complete and displays the potential.for karst features to develop. In fact, on page 2 of the Enviroscan report there is presented a notification of potential sinkhole problems caused by concentration of stormwater and/or excess infiltration. This is clearly an oversight by the EA contractor]. EA section 714.d(16). This section requires the EA to contain an alternatives analysis described in narrative form that would "...preclude, reduce, or lessen potential adverse impact or produce a beneficial result." [In this section the preparer of the EA simply and (rather brusquely) stated that, "Building or no building" are the only alternatives. Liberty does not interpret this section as an "eitherl or" for the project, but rather a detailed discussion of an analysis of the alternatives that would mitigate any karst-related impacts. However, not having even discussed the potential karst problems that were presented by the geophysical study, leads us to believe that these two tasks were completed in a non-interdisciplinary fashion and, purposely, no information was derived from the geophysics to be included 10 within the EA. It was noted that the geophysical survey was completed almost three years prior to the EA and its significance was not shared with the EA contractor]. EA section 714.d(17). This section asks for a detailed discussion regarding adverse environmental impacts. [The preparer of the EA largely missed the meaning of this requirement. In fact, the EA only discussed potential responsibilities of the Township to widen roads, provide fire and police services. The preparer totally disregards the potential for sinkhole collapse, and the other hazards that karst presents, such as ground water effects and building damage.] ¦ EA section 714.d(18). This section requires a discussion regarding mitigation of any adverse environmental effects. [Since the EA is totally silent on the fact that karst features represent a serious environmental concern, such a discussion was completely overlooked. The EA does not consider the soil and geologic conditions that pertain, and no discussions or plans are presented to consider how the sinkhole problems can be avoided or mitigated. Consequently, the sinkhole conditions, as presently seen, are occurring and may continue to occur unless mitigation is undertaken by the developer]. 4.3.2 Stormwater Management Report and Development Plans A review of the drawings prepared for the Netherby subdivision by Dawood Engineering, Inc. revealed a significant drainage feature that was not incorporated into the stormwater facility design for the development. This is the presence of four topographic depressions within Drainage Area 2. Two of the depressions are quite large, with depths of approximately two feet and five feet. Prior to development, these depressions would have intercepted stormwater runoff from approximately 44.23 acres. The Stormwater Management and Drainage Study prepared by Terry L. Fought did not consider the effects of these depressions on pre-developed stormwater runoff, despite their size and significant contributory drainage area (Fought estimated the size of pre-developed Drainage Area 2 to be 74.75 acres). It is known from hydrologic studies and published literature (Aron, et al, 1981) that in karst areas, a significant amount of stormwater in undeveloped areas is lost through infiltration. It is common practice to account for these losses by either excluding the portions of the drainage area that flow to sinkholes and depressions in the pre-developed drainage area, or to use a correction factor, typically between 0.33 and 0.5) to reduce the pre-developed flow rates that is predicted by common hydrologic models such as TR-55 and the rational method. No consideration of the loss of pre-developed runoff to sinkholes and depressions was included in the stormwater management facility design for the Netherby subdivision, resulting in a significant under-design of stonnwater detention facilities. This under-design is quantified in the runoff calculations detailed below. The locations of the sinkhole/depressions are shown in Exhibit B. Another oversight in the Stormwater Management and Drainage Study, as noted previously in the ordinance discussion, was the omission of the requirement to reduce the Hydrologic Soil Group of disturbed soils from the pre-developed to the post-developed conditions. The curve numbers shown for the pre-developed and post-developed conditions in Attachment 1 of the Stormwater Management and Drainage Study indicate that the same soil groups were used in the development of the pre-developed and post-developed weighted curve numbers for the drainage areas. Therefore, the post-developed flows were under-estimated, and thus would result in an under-design of stormwater detention facilities for the development. 4.4 RUNOFF CALCULATIONS Drainage Area 2 In order to determine the correct pre-developed and post-developed stormwater flow rates and quantify the degree of over- or under-estimation of these flow rates in the stormwater management facility design, Liberty delineated a revised pre-developed drainage area which excludes the area that drains to the four sinkhole/depressions that were indicated on the Dawood Engineering, Inc. design drawings. It was determined that the two large sinkhole/depressions intercept an area approximately 43.73 acres, and the two smaller sinkhole/depressions intercept an area approximately 0.5 acre, for a combined intercepted area of 44.23 acres. The resulting drainage area that actually makes up Drainage Area 2 is 21.49 acres in size. This is significantly smaller than the pre-developed drainage area of 65.72 acres that was incorporated in the 12 stormwater design calculations, resulting in a gross overestimation of pre-developed runoff rates. An outline of our revised boundary for Drainage Area 2 is depicted in Exhibit B. As indicated previously, the stormwater calculations for the Netherby subdivision failed to account for a change in the Hydrologic Soil Group between the pre-developed and post- developed condition, resulting in an underestimation of the post-developed flow rates. As an example, the curve number for good-condition grass in B-type soils should be increased from 61 in the pre-developed condition to 74 in the post-developed condition. Another development impact that resulted in a change in curve number was the removal of a 400-foot long row of deciduous trees on the Benjey property to install a sanitary sewer line. Using corrected values for the pre-developed drainage area size and the post-developed curve numbers, Liberty calculated the correct pre-developed and post-developed runoff rates for Drainage Area 2. A summary of the flow adjustments and overall difference between the corrected flow rates and those used in the Netherby subdivision design calculations, is presented in the tables below. A detailed summary of the flow calculations is provided in Exhibit C. Overestimation of Predeveloped Flow Storm Free ? z e 4 f?redevefbpe?lo v tt p ; tc fa bss <. '+' Predev ii ;` Cosiderlgg Sinkhole r x vetes im on of eloped Flow?'- 1 19.66 4.54 15.12 2 24.75 5.70 19.05 5 31.88 6.15 25.73 10 39.56 7.61 31.95 25 47.10 10.64 36.46 50 55.21 12.93 42.28 100 65.56 16.01 49.55 Drainage Area = 74.74 acres Drainage Area = 21.49 acres 13 Underestimation of Postdeveloped Flow S o f i u c f r s lie eCope Flol tt ?tlut p` Ater ".ec? tln cfv deveope f'losv 1N$ dot` ai4? seditclig cfs'". nderestimdtlbn of r oste} efe {qvr s' s ?n 1 41.93 48.13 -6.20 2 52.14 59.54 -7.40 5 66.50 75.31 -8.81 10 82.00 92.17 -10.17 25 97.03 108.64 -11.61 50 112.75 125.40 -12.65 100 113.17 146.89 -33.72 Cumulative Increase in Flows Caused by Development F u? ?na?"Aft rXA Sb 10 1 5 h el/ 1o rVYrlt ., K 1 21.32 470% 2 26.45 464% 5 34.54 562% 10 42.12 553% 25 48.07 452% 50 54.93 425% 100 83.27 520% Drainage Area 1 Dawood Associates submitted designs for infiltration trenches for individual lots that takes into consideration the increase of impervious area from each home that is constructed. The purpose of these infiltration trenches was presumably to reduce the post-developed flow volume to the pre- developed flow volume for the 2-year/24-hour storm event. However, the change in soil group and resulting increase of curve number following development was not considered, and accounts for a significant increase in stormwater volume. Eliminating the building areas in post-developed Drainage Area 1 (since their areas are infiltrated), Liberty performed pre- and post-developed stormwater volume calculations for the drainage area. These calculations account for the change in hydrologic soil group. It was determined that an increase of approximately 2,456 cubic feet of stormwater volume occurs as the result of development of this drainage area for the 2-year/24- 14 hour storm event. This increase in volume from high-frequency storm events is a contributing factor in the development of sinkholes on the Benjey property since the construction of the Netherby subdivision began. 4,5 REVIEW OF GEOLOGIC MAPS Liberty reviewed the Carlisle, PA quadrangle map of the Sinkholes and Karst-Related Features of Cumberland County, Pennsylvania (Open File Report 8902, W.E. Kochanov, 1989), published by the Pennsylvania Bureau of Topographic and Geologic Survey. The map identified potential and active karst features including sinkholes, soil depressions, "ghost lake" caverns, rock pinnacles and circular soil tonal variations consistent with karst topography. In this map, Kochanov had located a number of karst features on surrounding properties (see Figure 2). Two closed depressions were mapped on the east side of the Benjey property, and no karst features were mapped on the west side of the property. This is interpreted to mean that for the time period in which aerial photos were available to develop the map (mid 1930s until 1989), there were no active sinkholes on the Benjey property. From discussing this with Mr. Benjey, he was aware of only one recent sink area on his property since that period (presumably associated with the drought of 1999-2002). However, since the Netherby development has been under construction beginning in September 2003, at least five active sinkholes have formed and a number of other incipient sink zones were noted on the Benjey property in the field visit of June 1, 2005. One of the five sinkholes that developed on the Benjey property was reported to be approximately 20 feet wide and five feet deep. This sudden appearance of sinkholes is, in our professional opinion, related to construction activities at the Netherby subdivision. 15 16 Figure 2 PA Topographic and Geologic Survey Karst MaP 5. OPINIONS In our expert opinion, based on a reasonable degree of scientific certainty, we opine the following: 1. Sinkhole Development: The problem of the activation of sinkholes on the Benjey property is one that was foreseeable and, for the most part, addressable by the developer of the Netherby subdivision. It is our opinion that karst impact should have been included in the EA and mitigation measures should have been addressed during the site development design stage. The EA was of little use to provide such information, although EA Exhibit No. 3 (the Final Geophysical Survey by Enviroscan, Inc.) certainly provided as much detail as would be required to complete a thorough assessment of sinkhole hazards with necessary Environmental Impact Analyses and Mitigation Analyses. The maps I through 4, included as exhibits within the geophysical survey report, contained enough detail to identify the fact that sinkholes, if activated, would become a problem for this project area. The geophysical report presented conclusions consistent with the scientific data that land disturbance in this area could predictably cause the formation of sinkholes. This data was presented to the author of the EA in a very generous time frame; the geophysical survey being completed almost three years prior to the EA. However, the EA was completely silent on the entire subject of environmental impacts related to karst. This was a serious oversight, since building construction has already begun, and street and utility construction is completed. Our concerns are primarily focused on the dwelling and the outbuildings of the Benjeys. If their property remains in agricultural use, we feel that the developer can, until the area is completely stabilized, conduct karst remediation on a sinkhole-by-sinkhole basis using accepted mitigation techniques. However, sinkholes that occur near the house and outbuildings can cause major structural failure to a house that is a historical artifact and represents a genre in Pennsylvania German architecture of the 18th and 19th centuries. Needless to say, Liberty is similarly concerned about potential sinkhole damages to the very houses and streets at the Netherby development since, apparently little, if any, mitigative measures were discussed, proposed, or planned for this project. 17 2. Flooding. The plans prepared by Dawood Engineering clearly indicate the presence of sinkholes and/or closed depressions in Drainage Area 2 of the Netherby subdivision property prior to the start of construction. The failure to incorporate the losses of stormwater flow to these features in the stormwater design calculations for the development significantly overestimated pre-developed flow rates, resulting in significant under-design of stormwater management facilities, since these features were backfilled during site development. Furthermore, the failure to account for a change in hydrologic soil group between the pre-development and post-development conditions, as required by Township ordinance, resulted in an underestimation of post-developed stormwater flows from the development. The combined result of these errors resulted in an increase of up to 562% of stormwater flow after development, despite the installation of stormwater detention facilities. In addition to the increase in runoff in Drainage Area 2, Liberty's calculations indicate that an increase in stormwater volume occurs in Drainage Area 1 for the high-frequency 2-year/24-hour storm event, despite the installation of infiltration trenches on the lots in this drainage area. This is due to the design engineer's failure again to account for the change in hydrologic soil group between the pre-developed and post-developed condition. The resulting volume increase for the 2-year/24-hour storm event is 2,456 cubic feet. This drainage area drains to the area on the Benjey property where sinkholes have recently developed, and the increased volume is a contributing factor to the sinkhole development. 3. Remedies. One or a combination of the following remedies should be immediately implemented to correct the flooding and sinkhole problems that have been created on the Benjey property from the construction of the Netherby subdivision: a. Stormwater Volume Reduction in Drainage Area 1: Increasing the capacity of the existing infiltration trenches, and/or adding additional infiltration structures, would appear to be the most feasible methods to restore the volume of runoff from the 2-year/24-hour storm event to below the pre-developed condition. Other volume reduction methods, such as capture and reuse or increased evapotranspiration, are not likely to be feasible for this area. One feasible 18 Vt7 7, j5 CD (D cv, (a 0 -0-0 LO tt, cD °a> 'ti I ar t,•p.3"13'S>"£ M(0)fgO`Qy'W ° o .c..... r' in m Cb •. v, 1 l v' Nei t cv ? 'ih ? 1 - 3:? ut ? r 4 d+ { R- ki'S ` 'V li 1 ,'1 ? ' O iVM.W SON -MOC,(}L µ R 9t?I CS(? p 0 i? n ? t 11 M`r'lo ?wv ? ? ri tPe -t+hrt• gL40S `1,, sNyj A%01 R '•? ?? ?mro of tD$t<Y,/ (V) is. ?3 R J u e1i } 1 ?.+ [F] ? u a rb 1 ?a 'gyp x y A I . k)L.' a N .a ?` 1 11 i .r W xMF X ^"H+ k ?T-1 fi_.. PL. S PPO alternative may be to convey all or a portion of the stormwater flow from Drainage Area 1 to a location beyond the Benjey property via a new storm sewer line. b. Stormwater Flow Reduction in Drainage Area 2: Providing additional stormwater detention, either by increasing the size of the existing detention basin or adding additional detention basins within the Netherby subdivision, appears to be the most straightforward method to reduce post-developed stormwater flow rates to the pre-developed rates. Minimizing the amount of impervious coverage in future construction in the development could be combined with additional detention to achieve stormwater flow reduction. One alternative to increased detention that should be considered is conveying the discharge from the existing detention basin through the Benjey property via a new storm sewer line. This new storm sewer would likely need to be terminated at a point on the east side of East Springville Road. A second alternative that may be feasible is re-excavating the two large original sinkholes in the Netherby subdivision and creating inverted filters within them. If their stormwater capture potential can be restored, the increase in stormwater runoff could be mitigated. This alternative would likely require deed restrictions, engineering controls, and a maintenance agreement. c. Contingency Plan: The developer of the Netherby subdivision should develop a plan to address future karst failures on the Benjey property. The plan should commit the appropriate resources to respond to karst failures in a timely manner during construction of the Netherby subdivision and for a specified time period following the completion of construction. The preparers of this report reserve the right to amend this report, including the opinions, upon receipt of additional data that is pertinent to the site. 19 6. REFERENCES 1. Aron, G., et al, Procedure for PSU-IV for Estimating Design Flood Peaks on Ungaged Pennsylvania Watersheds, 1981. 2. Geyer, A. R. and Wilshusen, J.P., Engineering Characteristics of the Rocks of Pennsylvania, Pennsylvania Geological Survey, Environmental Geology Report No.1, 1982. 3. Kochanov, W. E., Sinkholes and Karst-Related Features of Cumberland County, Pennsylvania (The Carlisle Qudrangle), Open File Report No. 8902, 1989. 4. Laugland, J., Stormwater Management Design in Karst Terrane Adjusting Hydrology Models and Using Karstic Features, 1999. 5. Ralston, M. and Oweis, I., Geotechnical Engineering Considerations for Stormwater Management in Karst Terrain, 1999. 6. Wilshusen, J. P. and Kochanov, W. E., "Environmental and Engineering Applications: Carbonate Terrain," The Geology of Pennsylvania, 1999. 20 EXHIBIT A CURRICULUM VITAE JAMES P. CINELLI, P.E. CURRICULUM VITAE Fields of Competence Qualifications Summary Mr. Cinelli is experienced in Phase I, II & III environmental site ¦ over 14 years of experience assessments; remediation system design; site remediation management; in environmental spill prevention and response plans; stormwater and wastewater management consulting for systems design, permitting and construction; erosion control plans; industry. stream encroachment and earth disturbance permitting; and waste ¦ Project manager for the management. underground storage tank management program for a large Convenience Store Credentials company in Pennsylvania Environmental Engineering, Pennsylvania State University M. Eng Extensive experienced with , Phase I and IT assessments, (2000) environmental compliance MBA, Business Administration, St. Joseph's University (1995) audits, and due diligence B.S., Civil Engineering, Lehigh University (1990) studies. Professional Engineer registered in Pennsylvania, Delaware, Tennessee, ¦ Managed numerous remedial New Jersey, Virginia, New York and Connecticut investigations and feasibility studies under PA Land Training and Associations Recycling (Act 2) Program for chlorinated solvent, PCB 40-Hour Hazwoper Training and fuel oil contaminated a 8-Hour Hazwoper Supervisor Training es. s New Jersey UST closure and subsurface investigation certifications Accredited asbestos building inspector and management planner Member of American Society of Civil Engineers Key Projects 181h & Callowhill Streets Site, Philadelphia, PA_ Managed site remediation project at a former transformer manufacturing facility. Site work included reconstruction of a concrete retaining wall, installation of temporary shoring to enable excavation to the property boundary while protecting the adjacent streets and utilities, excavation and disposal of approximately 1,000 tons PCB-contaminated soil, and installation of HDPE cap. Managed health and safety concerns through an active public participation program, and secured a Release of Liability through Pennsylvania's Land Recycling Program. Baldwin Locomotive Works, Eddystone, PA - Conducted site assessment activities under Pennsylvania's Land Recycling Program. Work included groundwater monitoring well installation, soil borings, a test pit investigation and preparation of a Remedial Operation & Maintenance Plan to address impacted soils encountered during Page I of 5 Rev 06/2004 ,JAMES P. CINELLI, P.E. CURRICULUM VITAE redevelopment of the site. Conducted PCB testing in an electric substation containing 30 transformers and capacitors. Scattered Sites, North and South Carolina - Managed the decommissioning of five bleach and dye facilities, including asbestos inspections and abatement, characterization and disposal of drummed waste materials, assessment and remediation of contaminated soil and groundwater (petroleum products and chlorinated solvents), and aboveground and underground storage tank removals. Jefferies Knitting Mill, Albemarle, NC - Managed the decommissioning of a former bleach and dye facility. Provided management of approximately 200 drums of waste, including drum inventory, material characterization, consolidation, transportation and disposal. Conducted site assessment activities to delineate the extent of PCE in groundwater from former dry cleaning operation. Performed the removal of two 50,000 gallon 96 fuel oil USTs. and off-site bioremediation of 600 tons of impacted soil. Conducted an asbestos inspection in preparation for future building demolition. Pennsylvania Steel, Hamburg, PA - Managed environmental assessment activities at this site in pursuit of a Release of Liability under Pennsylvania's Land Recycling ("Act 2") Program. Historic industrial activities at the site included steel and stainless steel foundry operations, as well as truck body manufacturing. Investigated numerous areas of concern, including nine (9) underground storage tanks, an oil-water separator, and two (2) areas where foundry sand and slag were buried. Groundwater investigation activities, including installation of five (5) groundwater monitoring wells, aquifer testing, and fate-and-transport modeling were also performed. A Release of Liability was obtained under Statewide Health Standards for soil, and a Site-Specific Standard was established for naphthalene in groundwater utilizing the results of the Bioscreen fate-and-transport modeling that was performed. Other environmental investigation activities performed at the site included a comprehensive asbestos inspection, a radiological survey at a former non-destructive metal testing facility, and Johnson & Ettinger vapor intrusion modeling. Convenience Store, Lancaster County, PA - Removed 8,000 gallon gasoline UST and conducted a site characterization to delineate the extent of soil groundwater impact. Designed and installed a granular activated carbon pump-and-treat system, and secured NPDES permit for surface discharge of treated effluent. Conducted a fate-and-transport study to demonstrate attainment of Statewide Health Standards, and secured a release of liability through Pennsylvania's Land Recycling Program. Woodruff Oil, Bridgeton, NJ - Managed the design and installation of a secondary containment upgrade at a bulk fuel storage facility, in order to comply with recent changes to aboveground storage tank regulations. The secondary containment upgrade included a high-density polyethylene (HDPE) liner. The project required the design of a special perimeter anchoring system due to the proximity of adjoining structures. Site-specific designs for liner penetrations were necessary, due to the size, number and type of obstructions that were present (tanks, pipe supports, pump house, etc.). Convenience Store, Lancaster, PA - Two underground storage tanks were removed in order to meet PADEP and USEPA upgrade requirements. Impacted soil was discovered in the tank excavation. Prepared a Remedial Action Plan, and performed on-site remediation of excavated contaminated soil using ex-situ bioremediation technology. After complete remediation of soil, a Release of Liability was issued by PADEP using Statewide Health Standards. Poultry Processing Facility, Lebanon County, PA - An emergency response firm responded to a release of sulfuric acid from an aboveground storage tank at a poultry processing facility (location Page 2 of5 REV 06/2004 .JAMES P. CINELLI, P.E. CURRICULUM VITAE confidential). After Elk completed the excavation of heavily impacted soil, UAI personnel conducted a site assessment and risk assessment under Pennsylvania's Act 2. Systematic random grid sampling was conducted, and a risk assessment was performed, which indicated that residual contaminants remaining in the soil were protective to human health and the environment. An Act 2 Release of Liability was granted by PADEP using a Site-Specific Standard. Convenience Store, Bedford, PA - A Phase II Environmental Site assessment indicated that three gasoline underground storage tanks were previously located on this site. A soil and groundwater investigation was performed, and impacted soil and groundwater were fully delineated. Impacted soil was excavated and disposed off-site. The groundwater plume was determined to be stable by conducting quarterly groundwater monitoring. Following the completion of groundwater monitoring, a Release of Liability was issued by PADEP using Statewide Health Standards. Convenience Store, Downingtown, PA - Performed a site characterization in response to a release of gasoline from an underground storage tank system. Designed and managed soil vapor extraction and bioventing feasibility studies to evaluate the effectiveness of these technologies for remediation of gasoline-impacted soil. Prepared a Remedial Action Plan which was approved by the Pennsylvania Department of Environmental Protection, and designed a bioventing remediation system. Managed construction and operation of the remediation system. Convenience Store, Lancaster County, PA - Performed a site characterization in response to a release of gasoline from an underground storage tank system. Designed and managed a soil vapor extraction feasibility study to evaluate the effectiveness of this technology for remediation of gasoline- impacted soil. Prepared a Remedial Action Plan which was approved by the Pennsylvania Department of Environmental Protection, and designed a dual-phase extraction remediation system, utilizing a liquid ring pump, an air stripper, and vapor phase carbon, to simultaneously remediate soil and groundwater. Managed construction and operation of the remediation system. Convenience Store, Annville, PA - Performed a site characterization in response to a release of gasoline from a failed o-ring on an underground storage tank system. Due to impact to groundwater at the property line, determined that no exposure pathways were present by conducting a receptor survey and fate-and-transport study. Demonstrated attainment of a Site-Specific Cleanup Standard for MTBE, securing a Release of Liability through Pennsylvania's Land Recycling Program. Convenience Store, Halifax, PA - Removed two underground storage tanks in preparation for a real estate transaction. Due to the presence of MTBE in groundwater, a Site Characterization was performed, which identified an MTBE plume extending off-site. Performed a receptor evaluation and fate-and-transport survey. Negotiated deed restrictions on three properties, eliminating potential exposure pathways and enabling demonstration of attainment of a Site-Specific Cleanup Standard for MTBE. Secured a Release of Liability through Pennsylvania's Land Recycling Program. Convenience Store, Coatesville, PA - Performed a remedial alternatives analysis for treatment of gasoline-contaminated groundwater. Selected an innovative design - a Trickling Filter Bioreactor - over more traditional technologies such as granular activated carbon and air strippers. Designed and installed the remediation system, and secured NPDES permit for the system's discharge. Performed monthly system maintenance, discharge monitoring and reporting. Operational cost savings of $80,000 to $100,000 per year was realized. Page 3 of 5 REV o6nuua JAMES P. CINELLI, P.E. CURRICULUM VITAE Confidential Client - Conducted Environmental Compliance Audits of two steel manufacturing facilities in preparation for an EPA multi-media audit. Responsibilities included performing a review of environmental reports and permits and conducting visual inspections of the facilities. Determined the facilities' compliance status with respect to federal and state environmental laws and regulations governing solid and hazardous waste, water quality, hazardous materials, and storage tanks. Confidential Client - Conducted Environmental Compliance Audits of a warehouse facility and a wire and cable manufacturing facility for a major battery manufacturer. Responsibilities included performing a review of environmental reports and permits and conducting visual inspections of the facilities. Determined the facilities' compliance status with respect to federal and state environmental laws and regulations governing solid and hazardous waste, water quality, hazardous materials and storage tanks. Confidential Client - Conducted Environmental Compliance Audits of five automobile part re- manufacturing facilities. Responsibilities included performing a review of environmental reports and permits, and conducting visual inspections of the facilities. Determined the facilities' compliance status with respect to federal and state environmental laws and regulations governing solid and hazardous waste, water quality, hazardous materials, and storage tanks. Allied Signal, Pottsville, PA - Implemented and certified the closure of a permitted RCRA hazardous waste storage facility. The project included pad decontamination, management of wastewater, post- decontamination sampling and analysis, and closure certification. Berks Landfill Superfund Site, Spring Township, Berks County, PA - Performed a waste volume analysis for a PRP group. Historical aerial photographs and topographic mappings of the landfill site were reviewed in order to determine the method of landfill construction, and to estimate the depth of buried waste. A grid was overlaid on the waste disposal areas, and the total volume of waste was calculated based on estimated depth of waste at each grid point. A summary report was submitted to the PP-Ps' attorneys for Superfund litigation defense. United States Postal Service, Bellmawr, NJ and Wilmington, DE - Designed/specified wastewater recycling systems for USPS vehicle maintenance facilities. Work included reviewing building drawings, surveying drain sizes and depths, designing collection trenching and piping, and preparing performance specifications for wastewater recycling equipment. Performed construction inspections. Limestone Quarry, Bechtelsville, PA - Designed/specified a wastewater recycling system for truck maintenance and washing operations. Work included reviewing building drawings, surveying drain sizes and depths, and wash pad and collection sump design. C.S. Garber & Sons, Boyertown, PA - Designed/specified a wastewater recycling system for drill rig washing operations. Work included surveying building dimensions, design of a dual gate-controlled wash pad and a 5,000-gallon sediment settling tank, specification of ultrafiltration water recycle equipment, and construction management. Sun Drilling Products, Belle Chase, LA - Designed a vehicle washwater treatment system and performed NPDES permitting for a drilling products manufacturer. Washwater treatment system design included a topographic survey, settling tank design, vehicle entry/exit ramp design, and oil/water separator specification. An NPDES permit was secured for the washwater discharge and a new Styrene Divinyl-Benzene Copolymer manufacturing plant. rage 4 of 5 REV 06/2004 .JAMES P. CINELLI, P.E. CURRICULUM VITAE Convenience Store, Coatesville, PA - Performed an evaluation of a malfunctioning small flow sewage treatment system. Established improved system operating procedures and retrofitted the system with a second aerator to ensure compliance with NPDES permit limits. Performed monthly maintenance and prepared discharge monitoring reports. Oley Valley Elementary Center, Oley, PA - Designed stormwater management facilities and prepared erosion control plan, and prepared a stream crossing general permit application for a proposed elementary education facility. Due to the extensive area of soil disturbance, an Earth Disturbance Permit was secured from the Pennsylvania Department of Environmental Protection. Golden Oaks Golf Club, Pricetown, PA - Designed stormwater management facilities and prepared erosion control plan for a 280-acre championship golf course. Due to the extensive area of soil disturbance, an Earth Disturbance Permit was secured from the Pennsylvania Department of Environmental Protection. The design included five sediment/stormwater detention basins, and several diversion swales and sediment traps. Garden State Growers, Flemington, NJ - Prepared stormwater management facilities, including five stormwater detention/sediment basins. Prepared stream encroachment permit applications for three stream crossings and five detention basin outfalls. Cataldi Waste Disposal, Inc., Reading, PA - Served as design engineer and project manager on t0- acre land development project for a recyclable materials transfer station. Responsibilities included site grading, vertical and horizontal alignment of industrial access driveway, design of stormwater management facilities, and preparation of an erosion control plan. Central Catholic High School, St. Lawrence, PA - Designed grading, stormwater conveyance facilities, and erosion control plan for the expansion of practice fields at a high school athletic center. Cambridge-Lee Industries, Reading, PA - Designed a constructed wetland for removal of copper from industrial stormwater and cooling water discharge, and prepared an erosion control plan for same. Publications and Presentations Cinelli, J. P., "Applied Storm Water Management for Small Watersheds," presented at Penn State Great Valley, Fall 1999. Cinelli, J. P., "Ask a Lawyer," Served as a panel member for Berks County Bar Association's television program covering underground storage tank regulations, 1997. Cinelli, J.P., "Environmental Assessment and Pennsylvania's Land Recycling Program" presented at lending institutions, bench-bar association conferences, and realtor training seminars. Cinelli, J.P., "Understanding Environmental Regulations," presented at Berks Chamber of Commerce, 2000. Cinelli, J.P., "Ex-Situ Remediation of MTBE-Contaminated Groundwater Using a Trickling Filter Bioreactor", 2004. Page 5 of 5 REV 962004 WALTER M. LEIS, P.G. Senior Hydrogeologist CURRICULUM VITAE Qualifications Summary Fields of Competence ¦ Over 28 years of experience Mr. Leis has expertise in detection and abatement of groundwater in environmental practice of contamination attributable to chemical spills, radionuclides, and solid hydrogeology, as a field waste disposal problems; design of artificial recharge wells; model field hydrogeologist, supervisor, technical simulation of groundwater systems; siting of hazardous waste supervisor, and project repositories and landfills; permitting, expansion, and closure of solid manager. waste facilities; practical applications of geophysical surveys to ¦ Chief geologist /task leader contaminated hydrologic systems, site investigations and borehole investigating solvents and geophysical surveys; geochemical studies of acid mine drainage and radionuclides migrating in hazardous and nuclear wastes; system installation and rehabilitation of groundwater and discharging groundwater extraction and recharge wells; design of horizontal to surface waters at sites in PA, NJ, OH and MO, and galleries; expert witness. for 26 Uranium Mill • Served as project leader investigating sediment transfer of Tailings Remedial Action hazardous materials and radionuclides in sites in PA, NY, NJ, OH, (UMTRA) Program sites in the western US. MO, VA, and SC. • Developed geochemical sampling techniques for karst and deep • Project Director and chief geoscientist at over 100 mine sampling. Evaluated synthetic and field hydrologic data for different contaminant and deep formational analysis in coal field projects. hazardous waste sites in • Research experience developing mapping techniques for subsurface U.S., U.K., and Asia. Expert structures having multi-state hydrogeological significance, and in approximately fifteen defining ore bodies by geochemical prospecting. related court cases. • Six years of research applying geophysics to evaluating • Directed numerous contaminated ground water supplies in fractured rock and karst successful projects for siting areas. Project Director for artificial recharge and deep well disposal designing, and permitting of solid and residual waste studies: consultations for waste disposal and aquifer quality storage and disposal sites. problems for coastal communities. Developed specific hy- Numerous aquifer restoration projects involving multiple ground- drologic routing and seepage water zones contaminated by radionuclides, landfill leachate and models for cap and liner and for active design high-density, low-solubility organics. Expert Witness for three , groundwater cleanup. successful, precedent-setting aquifer contamination cases. Project Applied research to develop Director and chief expert for the only groundwater cleanup system various landfill caps using nominated for a demonstration grant in original Resource synthetic soils for residual Conservation and Recovery Act (RCRA) legislation. wastes, vapor routing caps for radon and methane gas • Remediation applications using slant, horizontal drill and lance collection, and permeable injection techniques. Applied horizontal and slant drilled wells for caps for asbestiform mineral collection galleries in complex hydrogeology, and injection of piles. grouts for redirecting contaminant flows. • Directed projects affecting chemical and physical rehabilitation of fouled contaminant extraction and recovery systems. Developed early warning appliances and automated data systems used to detect fouling at early, reversible stages. Page 1 of 9 REV 06/2004 WALTER M. LEIS, P.G. Senior Hydrogeologist Credentials CURRICULUM VITAE M.S., Hydrogeology - University of Delaware (1975) B.S., Biochemistry - Albright College (1966) Registered as a Professional Geologist in the States of Delaware, Georgia and Indiana, and in the Commonwealths of Pennsylvania and Virginia. Training and Associations Cooperative Program in Environmental Engineering -- University of Pennsylvania (1968) Additional Special Course Work in Geology and Hydrology -- Franklin & Marshall College, and Pennsylvania State University Satellite Data Processing Training -- Goddard Space Flight Center (1983) Trenchless Technology Training (Westinghouse 1990) OWRR Research Fellow (1973-74) Geological Society of America -- Engineering Geology Division Society of Economic Paleontologists and Mineralogists Association of Engineering Geologists -- Chairman, Hazardous Waste Mgmt. Committee (1985-88) Hazardous Materials Control Resource Institute (HMCRI) - Superfund Conference Program Development Council (1986-1994), Federal Environmental Restoration Conference Program Committee (1992-1994) Honored Graduate for Delaware, Office of Water Resources Research (OWRR), 25th Anniv. (1989) American Academy of Forensic Sciences, Elected Member (Engineering Sciences Section) DOE Peer Reviewer for radionuclide applications of colloidal silica grouts by horizontal drilling and lance injection. DOE Peer Reviewer for DNAPL and Mixed Waste Research funded by DOE (on-going). Key Projects Municipal Water Supply Development. Project director on a number of large ground water drinking water supplies. Sites included Atlantic City, NJ (13 mgd); Berks County, PA (0.5 mgd); Hackettstown, NJ (1.2 mgd). Projects involved siting, water development, monitoring, modeling and permit application. Airport Environmental Survey, City of Philadelphia, Division of Aviation, Philadelphia International Airport, Pennsylvania -- Project Director. Initiated this fast-track $270 million airport expansion environmental survey. Project involved detailed quantitation of hazardous wastes and groundwater conditions in a sole-source aquifer area. Site Investigations, PCB Advisory Committee of the Hudson River, New York State Department of Environmental Conservation (NYSDEC), New York -- Project Manager. Led a team that studied soils and groundwater potentially contaminated by polychlorinated biphenyls (PCBs) at 13 dredge spoil disposal sites in the Hudson River and Adirondack Mountain areas. All site investigations were completed on-time under harsh weather conditions in January through March. Objective was to Page 2 of 9 REV Mal'04 WALTER M. LEIS, P.G. Senior Hydrogeologist CURRICULUM VITAE develop remediation options to clean up groundwater and desorb soils. Project involved six 3-person field teams and had a value of $1.5 million. Natural Resource Damage Assessment - Evaluated natural resources damage associated with a potential problem of heavy metals in ground water. Reported to the trustees of Cape May County, NJ, concerning the value of damage to non drinking water aquifers (recharge potential, agricultural irrigation, etc.) Siting, Design, and RCRA Part B Applications, Various Locations, Multiple Clients, Project/Technical Director. Directed teams responsible for siting, design, and RCRA Part B Appli- cations for two U.S. Department of Energy (U.S. DOE) sites and ten commercial RCRA facilities. Contaminant Isolation Systems, Various Locations, Advisor to Ministry of the Environment, Ontario, Canada. Designed extraction wells and hydrogeologic isolation systems for groundwater contaminated with organic solvents in Ontario and Quebec, Canada. Containment Isolation System, Power Generation Station, N.C. Horizontal Drainage Gallery installed for a leaking 25 acre wastewater lagoon. Industrial Waste Disposal Research, Montana, North Carolina and Tennessee, for the Edison Electric Institute. Completed a major high-volume waste disposal and groundwater effects project for Edison Electric Institute. Mr. Leis' report was instrumental in having high volume wastes declared non-hazardous, saving the electric power industry 10's of millions of dollars in waste disposal costs. Municipal Solid Waste (MSW) / Residual Landfills, Various Locations, Multiple Clients, Project Manager/Director. Siting, design, and permitting of eight MSW and residual waste landfills for six industrial and two municipal clients in New Jersey, Pennsylvania and Maryland. Residual Waste Landfill Siting, Various Locations, confidential Pulp and Paper Client, Project Manger and Senior Project Scientist. Project involved initial site screening of more than 30 candidate sites, the selection of one site, and directing hydrogeologic, soils and geotechnieal surveys for design of a residual waste landfill facility. Directed permit design and closure. Residual Waste and Sludge Landfill Permitting, Confidential Client, Pennsylvania, Project Director. Directed the first Phase I and Phase II permitting of a 700-TPD paper mill residual waste landfill under the 1994 Pennsylvania Residual Waste Regulations. Determination of Migration of Radionuclides in Groundwater, Senior Hydrogeologist. Selected and directed a team of geoscientists to investigate radionuclide migration at 26 abandoned Uranium Mill Tailings piles located in 7 western states. Developed geophysical testing and rapid field testing techniques to assess plume configuration. U. S. Department of Energy National Laboratories, Chief Peer Reviewer, Hydrogeology. Provided peer review and project direction recommendations for site characterizations being conducted at U. S. Department of Energy National Laboratories (Oak Ridge, TN; Rocky Flats, CO; Los Alamos, Page 3 of 9 REV 06200) -WALTER M. LEIS, P.G. CURRICULUM VITAE Senior Hydrogeologist NM;, Sandia, NM; and Fernald, OH). These sites were characterized as having plumes of mixed wastes in groundwater, including radionuclides, solvents, anions and heavy metals. Stabilization and Closure of a 30-Acre Industrial Waste Landfill, Confidential Client, Pennsylvania, Project Director. Directed landfill closure permitting, hydrogeologic and soil investigations, and screening and selection of closure and capping options. Directed design, permitting, and construction management of a mill waste transfer facility to handle the waste during and after closure of the plant landfill. Remediation Monitoring and Modeling, Manhattan Project Sites, Chief Scientist. Assembled multidisciplinary team to investigate groundwater and soil contamination from radionuclides and related chemicals associated with two former Manhattan Project Sites (Canonsburg, PA, and St. Louis Airport, MO). Mineable Reserve Evaluations, Various Locations, Confidential Clients, Project Manager. Conducted evaluations of mineable reserves and the potential for subsidence, for coal and non coal de- posits, as well as evaluations of mine reclamation, and on-going monitoring. Raney Well Collection Galleries - Provided feasibility & initial design for horizontal collection systems for potable water system in Limestone Formation for Bald Eagle Water Company, Tyrone, PA. Design and Closure of 12 Industrial Sludge Lagoons, Confidential Client, Pennsylvania, Project Director. Directed engineering evaluations of bridging, filling, regrading, and top covering the closed lagoons using a mixture of paper mill sludge, fly ash and soil. An area totaling 109 acres is being reclaimed and converted into a wildlife preserve. Groundwater Contamination, Various Locations, Confidential Client, Project Director. Responsible for definition of groundwater contamination from sanitary landfill leachate and industrial chlorinated solvents. Developed systems for recovery of contaminants to protect heavily used aquifers in numerous states. Hydrogeologic Isolation Systems in Fractured Rock and Karst Areas, Confidential Clients, Illinois, Maryland, Ohio, Pennsylvania and Virginia, Project Director. Responsible for design and construction of hydrogeologic isolation and remediation systems for various chlorinated and non- chlorinated solvents migrating in groundwater away from municipal solid waste disposal facilities. Designed & construction oversight for gallery wells, horizontal wells and slant drill wells. Groundwater Collection Systems, Confidential Client, Delaware and Pennsylvania, Project Director. Design and operational supervision of chemical and physical rehabilitation of groundwater collection systems in fractured rock and coastal plain areas. Environmental Fate Projects, Colorado, Nevada and Ohio, Project Director. Directed three projects for the determination of environmental fate and effect of, and for the remediation of groundwater aquifers containing, PCBs, furans, dioxins, and a-, R-, y-BHC, and tritium. rage 4 of 9 Rev o6/2064 WALTER M. LEIS, P. G. CURRICULUM VITAE Senior Hydrogeologist Remediation of Explosives, Various Locations, Multiple Clients, Principal Investigator. Technical leader for six projects involving the evaluation and remediation of explosives compounds in groundwater from U.S. Army and U.S. Navy operations in IL, MD, TN and WV. Subsurface Migration of Polychlorinated Biphenyls (PCBs), Various Locations, Confidential Governmental Client, Principal Investigator. Conducted nine projects involving subsurface mi- gration of PCBs in New York, New Jersey, Pennsylvania and Oklahoma. Field Design Studies, Various Locations, Confidential Client. Initiated and directed field design studies for artificial recharge and waste disposal wells in DE, CA, CO, FL and OH. Groundwater Recovery Projects, Petroleum Releases. Represented a number of multinational oil companies to develop upset remediation costs for alternate groundwater remediation strategies. Project involved groundwater contaminated with petroleum hydrocarbons in sixteen states, Taiwan, and karst areas of Italv. Evaluation of Groundwater Effects, Various Locations, Edison Electric Institute, Project Director. Directed eight projects for evaluation of groundwater effects and attenuation of leachates from coal ash and flue gas desulfurization waste disposal areas. Projects in fractured rock and karst areas of southeaster United States. Geochemical Evaluation of Coal Mine Pools, Various Locations, Confidential Client, Project Manager. Conducted research at nine coal mine pool sites in MT, OH, PA and WV. Subsurface Migration of Contaminants, U.S. EPA, Principal Investigator. Conducted research for the U.S. EPA into the geochemistry of subsurface migration of various toxic organic substances, agricultural chemicals, radionuclides, and heavy metals. Migration of Volatile Chlorinated Hydrocarbons, Various Locations, Multiple Clients, Principal Investigator/Expert Witness. Over 200 projects involving migration of volatile chlorinated hydrocarbons in groundwater. Projects involve groundwater characterization and remediation design, project sites in fractured rock, karst terrains, and unconsolidated formations several included representation of remedial plans in court and in arbitration. Remediation of DNAPLs, Peer Reviewer. Peer Reviewer for DOE funded research regarding DNAPL remediation in low permeability media and fractured rock. Fate and Degradation of Agricultural Chemicals, Various Locations, Multiple Clients, Principal Investigator. Project Director for twelve projects involving fate and degradation of agricultural chemicals in soil and groundwater, for E. I. DuPont, Chevron Chemical, Shell Chemical and Texaco. Geophysical / Remote Sensing Assessments, Various Locations in the U.S., Project Director. Designed geophysical and remote sensing assessments of various hazardous waste disposal areas, including organic chemical and radionuclide disposal sites. Page s or 9 REV Ma004 WALTER M. LEIS, P.G. CURRICULUM VITAE Senior Hydrogeologist Wetlands Restoration, Confidential Paper Mill, New Jersey, Project Manager. Studies and designs for wetlands restorations were accomplished and approved by regulatory agencies and U.S. Army Corps of Engineers within 12 months. Hydrogeologic Investigations, Confidential Paper Mill, Project Director. Conducted hydrogeologic investigations to augmented a water supply by +5 mgd at a paper mill planning to expand its production of recycled paper products. The augmented supply used ground water management and enhanced groundwater withdrawal techniques. Expert Witness Successfully represented the City of Dublin and Dublin County, Ireland, for site remediation for chlorinated solvents at the Gavin's "Dump" in County Kildare; Successfully represented U.S. EPA in a highly publicized case (United States v. R. Bums) in which a waste hauler willfully deposited toxic chemicals along 200 miles of North Carolina highways. Case included environmental effects of PCBs at the storage center; Successfully represented New Castle County, Delaware, in a case involving alleged organic contamination from an old landfill; Successfully represented New Castle County, Delaware, in developing upset cleanup costs for insurance coverage of environmental damages resulting from groundwater contamination by organics. Testimony was quoted in the written decision by the 3rd U. S. District Court; Successfully represented Cape May County in adjudicatory hearings regarding a groundwater source and use dispute. Represented U. S. Department of Energy in a fact-finding mission for testimony before the U.S. Congress, regarding groundwater migration of radionuclides in Canonsburg, PA. Represented Sears Roebuck & Co. for a reduction of participatory liability at a N.J. Superfund site settled favorably on behalf of Sears. Represented two industrial clients in a successful insurance claim for costs associated with groundwater cleanup of organic chemicals for Lone Pine Landfill, Monmouth County, NJ. Evaluated applications & costs of horizontal drainage galleries by trenchless technology; Represented Aerojet General, Inc., in a successful defense in a class action suit regarding alleged contamination by chlorinated solvents and mixed wastes consisting of chlorinated solvents and radionuclides; Represented Moen Industries in environmental arbitration involving solvent contamination at six industrial sites acquired by American Brands, Inc. Developed upset remediation costs, together with a Weston colleague, and presented them in testimony. Moen's costs were indemnified by the independent Arbitration panel; Page 6 of 9 REV O6 ow WALTER M. LEIS, P. G. CURRICULUM VITAE Senior Hydrogeologist Represented Santa Fe Railroad in a class action claim for groundwater damages resulting from migration of tritium, other radionuclides, and chlorinated solvents. Santa Fe was dismissed by the court based upon the compelling data; Represented National Cash Register, Inc., Potomac Electric, and Maryland National Bank in environmental liability claims involving contamination from old landfills in Maryland, Ohio, Virginia, and Delaware. Settled before trial; Represented Browning Ferris Industries and two other confidential clients in rate hearings before the New Jersey State Utility Commission and in environmental arbitration hearings; Represented Uniform Tubes, Inc., in a successful insurance claim resulting from groundwater contamination by a broad spectrum of chlorinated solvents. Settled at initiation of trial; Represented a large chemical manufacturing company in an insurance claim for original disposal of chlorinated and non-chlorinated solvents at a Superfund site. Settled before trial; Represented an insurance company against a claim for environmental damage dealing with intentional discharges of chlorinated solvents into soils; Represented Lever Brothers in an environmental insurance recovery claim regarding groundwater contamination by organic solvents at 26 sites. Lever Brothers had Potentially Responsible Party (PRP) status in the action. Settled after filing of expert reports; Represented AMP, Inc. in an environmental insurance recovery claim for the M/A-COM Inc. site in New Brunswick, NJ. Opinion limited to reasonableness of costs incurred. Settled before trial. Represented CPC/Bestfoods in an environmental insurance recovery claim for 3 plant sites in Northeast U.S. Opinions included contamination history, reasonableness and timeliness of remediation and standards of industrial practice. Settled prior to trial. Publications Leis W. and K.R. Phillipp, 2000, "Tree Rings as Passive Witnesses to Environmental Contamination." American Academy of Forensic Sciences (chapter for Environmental forensics - in preparation). Haupt, R., Leis, W., Schwartz, F., 2000, "Viscous Barrier Technology the Technical Background:" Assessment of Technologies Supported by the Office of Science and Technology & the Department of Energy, Results of Peer Review FY 1998 ASME Peer Review Series. Abbot, E., Ballard, J., Bollag, J.M., Baolin, D., Gillespie, G., Gould, J., Keney, J., Leis, W., Nielson, K., Raghavan, R., Reith, C., Sivavec, T., 1999, "DNAPL Remediation in Low Permeability Soils:" Assessment of Technologies Supported by the Office of Science and Technology & the Department of Energy, Results of Peer Review FY 1998 ASME Peer Review Series. P128-136. Page " or9 REV OW2mJ WALTER M. LEIS, P. G. Senior Hydrogeologist CURRICULUM VITAE Haupt, R., Leis, W., Schwartz, F., 2000, "Viscous Barrier Technology Emplacement by Lance Injection:" Assessment of Technologies Supported by the Office of Science and Technology & the Department of Energy, Results of Peer Review FY 1998 ASME Peer Review Series,. Leis, W., 1998, "Forensic Evidence of Ground Water Contamination Migration: Use of Tree-Rings Geophysics and Other Direct Evidence", American Academy of Forensic Science, 21" Annual Conference. Leis, W., 1994, "Groundwater Remediation by Vertical Extension of Unlined Landfills" (Abstract): Solid Waste Association of North America, Annual Meeting Conference. Leis, W., R. Scheinfeld, R. Ross, and R. Molle, 1994, "Environmental Studies for a Runway Siting:" (Abstract): Association of Engineering Sciences, 1995 Annual Meeting. Bopp, F., and W. Leis, 1993, "Groundwater Contamination - Prevention Still the Best Medicine:" WATER Engineering and Management, 3 p. Leis, W., and F. Bopp, 1993, "Remote Sensing of Soil and Groundwater Contamination:" Instrumentation and Control Systems, 4 pp. Comuet, T., K. Hansen, and W. Leis, 1991, "Optimization of a Groundwater Recovery System" (Abstract): American Assoc. Groundwater Scientists & Engineers XIII Annual Symposium. Preslo, L., and W. Leis, 1987, "Site Screening Techniques" (Abstract): Association of Engineering Geologists Annual Meeting. Leis, W., 1986, "The Use of Non-Invasive Site Screening Techniques for Assessment of Hazardous Waste Sites:" Association of Engineering Geologists News, p. 12-16. Leis, W., 1984, "Contamination of Groundwater, An Assessment of the Problem:" Pennsylvania Bar Institute Symposium on Groundwater Contamination (Abstract). Leis, W., and A. Hatheway, 1983, "Geological Characterization of Hazardous Waste Sites" (Abstract): Association of Engineering Geologists Annual Meeting. Sheedy, K., and W. Leis, 1983, "Hydrogeological Assessment in Karst Environments" (Chapter) in Applied Geomorpholoev, Reinhold Publishers. Leis, W., and K. Sheedy, 1980, "Geophysical Location of Abandoned Waste Disposal Sites:" 1980 National Conference on Management of Uncontrolled Hazardous Waste Sites. Leis, W., and A. Metry, 1980, "Multimedia Pathways of Contaminant Migration:" Water Pollution Control Federation, 1980 Annual Meeting. Leis, W., and A. Metry, 1979, "Field Characterization of Leachate Quality:" Water Pollution Control Federation, 1979 Annual Meeting. Page 8 ar 9 REV "n004 -WALTER M. LEIS, P.G. Senior Hydrogeologist CURRICULUM VITAE Leis. W., 1979, "Subsurface Reclamation by Counter Pumping Systems: Geologic and Geotechnical Aspects of Land Reclamation:" ASCE/AEG 1979 Symposium. Thomas, A., and W. Leis, 1979, "Physical and Chemical Rehabilitation of Contaminant Recovery Wells:" Association of Engineering Geologists 1978 Annual Meeting. Leis, W., and W. F. Beers, 1979, "Soil Isotherm Studies to Predict PCB Migration within Groundwater" (Abstract): ASTM 1979 Annual Meeting, Philadelphia, PA. Leis, W., W. F. Beers, and F. Benenati, 1979, "Migration of PCBs from Landfills and Dredge Disposal Sites in the Upper Hudson River Valley:" New York Academy of Science Symposium on PCBs in the Hudson River. Leis, W., R. D. Moose, and W. F. Beers, 1978, "Critical Area Maps, a Regional Assessment for Karst Topography:" Association of Engineering Geologists 1978 Annual Meeting. Leis, W., W. F. Beers, J. M. Davidson, and G. D. Knowles, 1978, "Migration of PCBs by Groundwater Transport -- A Case Study of Twelve Landfills and Dredge Disposal Sites on the Upper Hudson Valley, New York:" Proceedings of the 1st Annual Conference of Applied Research and Practice on Municipal and Industrial Waste. Leis, W., D. R. Clark, and A. Thomas, 1976, "Control Program for Leachate Affecting a Multiple Aquifer System, Army Creek Landfill, New Castle County, Delaware:" National Conference on Management and Disposal of Residue on Land. Leis, W., 1976, "Artificial Recharge for Coastal Sussex County, Delaware:" University of Delaware Press, Water Resources Center, 126 p. Leis, W., and R. R. Jordan, 1974, "Geologic Control of Groundwater Movement in a Portion of the Delaware Piedmont:" OWRR - DEL 20, p.50. Page 9 of 9 R N 06/x004 EXHIBIT B PORTION OF DAWOOD ENGINEERING PLAN SHOWING PRE- DEVELOPED SINKHOLES/DEPRESSIONS AND DRAINAGE AREA 2 BOUNDARIES 4 uw w w-' ? ° a alb o ?< Q Q) o- o o yak O so. ? ? d 0 i al 4 ? O- `b_ C N O N N O_ Q1 Q N N O S- { c I it 14 iR a N c6 y C ? [L4 'O Q ? O N CO U N N ? U Q 2 a N T C ? O 'O t6 C ? O U O .- CL1 ? NV 4 ai a> Q c' cv c ? co a Q . y , EXHIBIT C STORMWATER CALCULATIONS Curve Number Calculations Runoff CurveiNuinber Calculations `?. + , '_ `s.: Subbasin 2 ' Pre-develo "ed Conditi on 4. 7 ? .. Land Use Soil Group CN Area (ac.) % Area meadow B 58 19.49 90.7 meadow C 71 2.00 9.3 Total 59 21.49 160 Runoff Curve Number:Calculations'13 rs,.;gt;=F Subbasi62, Post-develo ed`Con iitron r} £Kh? "? Land Use Soil Group CN Area (ac.) % Area Grass, good C 74 31.6348 42.32 Grass, good D 80 5.1974 6.95 crops, C&C, C 81 18.36547 24.57 crops, C&C, D 85 2.00 2.68 Impervious C 98 16.7449 22.40 Impervious D 98 0.80261 1.07 Total 82 74.75 100 Time of Concentration Calculations Time.of Con centration.Calculatiods rr k';`. Subbasin 2.,, Pre-developed Condition 74 .x' Sheet Flow Ground Cover Cultivated Mann in s n 0.06 Len th(f t) 100 2- r, 24-hr Rainfall 3 Slope ftlft) 0.01 Tt (hr) 0.107 Shallow Concentrated Flow Ground Cover Unpaved Length (ft) 1700 Slope (fUft) 0.0171 Avg. Velocity (ft1s) 2.1 Tt(hr) 0.225 Total Time (hr) 0.332 Total Time (min) 19.91 Time of;;Concenttation.Calculations Subbasin2,„Post-develo ed?ConddidWZ"'D ? Sheet Flow Ground Cover Grass Mannin s n 0.24 Length (ft) 100 2- r, 24-hr Rainfall 3 Slope (ft/ft) 0.045 Tt(hr) 0.178 Storm Sewer Ground Cover Unpaved TI (hr) 0.11 Total Time (hr) 0.288 Total Time (min) 17.26 I r Peak Runoff Calculations Peak Runoff Calculations i ." F:°^= Subbasin 2 - Pre-developed. Rossmiller Equation Runoff Coefficient CN 59 Slope (%) 1.67 Impervious Area 0 Tc (min) 19.91 Frequency (yr) , C;,(Rossmiller) Intensity (inft) :.Area (ac.)'i Peak.Flow<(cfs) 1 0.11 2 21.49 4.54 2 0.11 2.35 21.49 5.70 5 0.12 2.7 21.49 6.15 10 0.13 3.15 21.49 7.61 25 0.14 3.5 21.49 10.64 50 0.15 3.95 21.49 12.93 100 0.17 4.5 21.49 16.01 Peak Runoff Calculations ;`'F # ;?'. + Ytyn!; Subbasin-2--'Post'-develo ep d'Cohditiori`"' T >"s;?'.'O :.k Rossmiller Equation Runoff Coefficient CN 82 Slope (%) 1.5 Impervious Area 0.2348 Tc (min) 17.27 Frequency C;(Rossmiller) .Intensity.(in/hr) ";Area,(ac.) Peak,Flow,(cfs) 1 0.30 2.14 74.745 48.13 2 0.32 2.52 74.745 59.54 5 0.34 2.99 74.745 75.31 10 0.36 3.47 74.745 92.17 25 0.38 185 74.745 108.64 50 0.40 4.23 74.745 125.40 100 0.42 4.7 74.745 146.89 SUMMARY OF INCREASES IN STORMWATER FLOWS Overestimation of Predeveloped Flow orm Frequency u ; (Yr)' re eve ope ow. Ignoring Sinkhole Loss,' re eve ope ow Considering Sinkhole Loss (cfs)* veres ima, Ion o " Predevveloped Flow 1 19.66 4.54 15.12 2 24.75 5.70 19.05 5 31.88 6.15 25.73 10 39.56 7.61 31.95 25 47.10 10.64 36.46 50 55.21 12.93 42.28 100 65.56 16.01 49.55 Drainage Area = 74.74 acres Drainage Area = 21.49 acres Underestimation of Postdeveloped Flow t3torm Frequency (yr); ,? os eve ope ow Without Sod Category{ ;Reduction(cfs) ;,. os eve ope ow, ; VWith Soil Categoryl", ?, t Reductw(i-(efs)s 0 n eres ima ion o r ?Pos4„tzdeveloped Flow efs - Z ( 1 41.93 48.13 -6.20 2 52.14 59.54 -7.40 5 66.50 75.31 -8.81 10 82.00 92.17 -10.17 25 97.03 108.64 -11.61 50 112.75 125.40 -12.65 100 113.17 146.89 -33.72 Cumulative Increase in Flows Caused by Development Frequency f,.ir , Cumulative Flow'Increase (cfs)„,rep` k -7? To ncrease F77, 'Storm water Flow After. w; Dev"elopment t: n; 1 21.32 470% 2 26.45 464% 5 34.54 562% 10 42.12 553% 25 48.07 452% 50 54.93 425% 100 83.27 520% VERIFICATION The foregoing document is based upon information which has been gathered by counsel and us in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. THOMAS R BE JEY ANN E. BENJEY Date: NOVEMBER 10, 2005 v <J ?4-. }l? SHERIFF'S RETURN - REGULAR CASE NO: 2005-05863 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENJEY THOMAS R ET AL VS DIEHL DONALD E ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon DIEHL DONALD E the DEFENDANT , at 1553:00 HOURS, on the 16th day of November , 2005 at 110 WEST SPRINGVILLE ROAD BOILING SPRINGS, PA 17007 by handing to DONALD DIEHL a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof Sheriff's Costs: Docketing 18.00 Service 6.72 Postage .37 Surcharge 10.00 .00 35.09 Sworn and Subscribed to before me this day of ??v t?tiYt.c A. D. r ? o hone ary So Answers: R. Thomas Kline 11/17/2005 MARCUS MCKNIGHT By: Deputy Sheriff CASE NO: 2005-05863 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENJEY THOMAS R ET AL VS DIEHL DONALD E ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY EHL SUZANNE DEFENDANT the , at 1553:00 HOURS, on the 16th day of November , 2005 at 110 WEST SPRINGVILLE ROAD BOILING SPRINGS, PA 17007 by handing to DONALD DIEHL, HUSBAND a true and attested copy of COMPLAINT - EQUITY - together with and at the same time directing His 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 L?- u A. D. -,2 QQ Pr onot y So Answers: as ,. R. Thomas Kline 11/17/2005 MARCUS MCKNIGHT By. ` 1, Deputy Sherif was served upon SHERIFF'S RETURN - REGULAR 11 CASE NO: 2005-05863 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENJEY THOMAS R ET AL VS DIEHL DONALD E ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon DIEHL RAYMOND E the DEFENDANT , at 1546:00 HOURS, on the 16th day of November , 2005 at 401 MYERS ROAD ILING SPRINGS, PA 17007 by handing to RAYMOND DIEHL a true and attested copy of COMPLAINT - EQUITY - together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 6.00 Service 6.72 Affidavit .00 Surcharge 10.00 Sworn and Subscribed to before me this n di). k day of YUn. ?5 A.D. on ary So Answers R. Thomas Kline 11/17/2005 MARCUS MCKNIGHT By: y SHERIFF'S RETURN - REGULAR CASE NO: 2005-05863 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENJEY THOMAS R ET AL VS DIEHL DONALD E ET AL BRIAN BARR , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon DIEHL GENEVIEVE A the DEFENDANT , at 1546:00 HOURS, on the 16th day of November , 2005 at 401 MYERS ROAD BOILING SPRINGS, PA 17007 by handing to RAYMOND DIEHL, HUSBAND a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His 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 (uw?uiU? A. D. Pro nota So Answers: R. Thomas Kline 11/17/2005 MARCUS MCKNIGHT By: ??*> t Deputy Sheriff THOMAS R. BENJEY and : ANN E. BENJY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY Defendants NOTICE TO DEFEND To: Thomas R. Benjey and Ann E. Benjey 546 East Springville Road Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Robert C. Saidis PA Supreme Court ID No. 21458 Suzanne C. Hixenbaugh PA Supreme Court ID No. 91641 Saidis, Shuff, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA THOMAS R. BENJEY and ANN E. BENDY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT IN EQUITY Defendants, by their undersigned counsel, Saidis, Shuff, Flower and Lindsay preliminarily object to the Plaintiffs' complaint as follows: I. MOTION TO STRIKE OFF A PLEADING. Preliminary Objection for failure to exercise or exhaust a statutory remedy provided by 53 P.S. §§ 11001-A and 11002-A Plaintiffs have filed this Complaint against Defendants for certain alleged in the stormwater plans submitted to South Middleton Township in connection with the approval of the proposed plan of lots for Phase One of the Plan of Netherby ("Netherby") A true and correct copy of Plaintiffs' Complaint is attached hereto, made a part hereof, and marked as Exhibit "A." 2. It is alleged in paragraph 10 of the Complaint that the stormwater plan approved by SAIDIS SHUFF, FLOWER & LINDSAY ATr0RNEYS•AT•IAAW 26 W. High Street Carlisle, PA South Middleton Township and implemented by Defendants contains serious deficiencies. Section 1001-A of the Municipalities Planning Code ("M.P.C."), 53 P.S. § 11001-A, provides: The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article IX [Zoning Hearing Board and Other Administrative Proceedings] or deemed to have been made under this act. 4. Section 1002-A of the M.P.C., 53 P.S. § 11002-A, provides: All appeals from all land use decisions rendered pursuant to Article IX shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S. § 5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as set forth in section 908(9) of this act. Netherby was approved by the Board of Supervisors of South Middleton Township 2003. 6. Plaintiffs' failed to appeal the approval of Netherby within the time frame provided by 53 P.S. § 11002-A. Under Pa.R.C.P. 1028(x)(7), a party may preliminarily object by way of motion to SAIDIS SHUFF, FLOWER & LINDSAY ATMRNEYS•AT•f.AW 26 W. High Street Carlisle, PA strike off a pleading for failure to exercise or exhaust a statutory remedy. 8. Plaintiffs' failure to appeal the approval of the subdivision and land development plat for Netherby is in violation of 53 P.S. § 11002-A and Plaintiffs' Complaint must be stricken. WHEREFORE, Defendants respectfully request that the Complaint against them be stricken and the action against them dismissed. II. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF COMPLAINT 9. Defendants incorporate paragraphs 1 through 8 above as though set forth at length. 10. Under Pa.R.C.P. 1028(a)(3), a party may preliminarily object to a pleading for insufficient specificity in a pleading. 11. Paragraph 5 of the Complaint fails to allege with specificity the particular tract or tracts of adjoining property owned by the Plaintiff, including the recording information, deed references and legal descriptions, which are the subject of the lawsuit. 12. Paragraph 7 of the Complaint fails to allege specific facts. Rather the Plaintiffs' allege conclusions concerning having "experienced excessive storm water" and the development of sinkholes". 13. Paragraph 10 of the Complaint fails to allege with specificity material facts concerning the "serious deficiencies" complained of by the Plaintiff. 14. Plaintiffs failure to plead specific material facts does not allow the Defendants to answer or prepare a defense and Plaintiffs should be required to file a more specific pleading. WHEREFORE, Defendants respectfully request that the Complaint against them be stricken and the action against them dismissed. III. PRELIMINARY OBJECTIONS FOR FAILURE TO CONFORM TO PA. R.C.P. 101 15. Defendants incorporate paragraphs 1 through 14 above as though set forth at length. 16. Pa.R.C.P. 1019(i) requires that: When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing. SAIDIS SHM,, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 17. Plaintiffs' Complaint references and incorporates a report by James P. Cinelli, P.E. and Walter M. Leis, P.G., on behalf of Liberty Environmental, Inc. (the "Report") which makes references to a fax from Dawood Associates to South Middleton Township dated April 12, 2005 which purportedly evidences the addition of infiltration trenches in limestone areas in violation of the Land Development Ordinance No. 1 of 2001 of South Middleton Township. 18. The fax dated April 12, 2005 from Dawood Associates to South Middleton Township is not attached to the Report or the Complaint. 19. Under Pa.R.C.P. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to rule of court. 20. Plaintiffs' failure to attach the writing a claim is based upon is in violation of Pa.R.C.P. 1019(i) and Plaintiffs' Complaint must be stricken. WHEREFORE, Defendants respectfully request that the Complaint against them be stricken and the action against them dismissed. IV. PRELIMINARY OBJECTIONS FOR FAILURE TO CONFORM TO MPC 53 P.S. § 10617 21. Defendants incorporate paragraphs 1 through 20 above as though set forth at length. 22. The MPC at 53 Pa.C.S. § 10617 requires that: In case any building, structure, landscaping or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of any ordinance enacted under this act or prior enabling laws, the governing body or, with the approval of the governing body, an officer of the municipality, or any aggrieved owner c tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the municipality at least 3 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice has been given. SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS•AT•LAW 26 W. High Street Carlisle, PA 23. Plaintiffs failed to provide 30 days notice of this action to South Middleton Township. 24. Under Pa.R.C.P. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to law. 25. Plaintiffs' failure to provide 30 days notice of this action to South Middleton Township is in violation of 53 P.S. § 10617 and Defendants' Complaint against Defendants must be stricken. WHEREFORE, Defendants respectfully request that the complaint against them be stricken and the action against them dismissed. Robert Saidis PA Supreme Court ID No. 21458 Suzanne C. Hixenbaugh PA Supreme Court ID No. 91641 Saidis, Shuff, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA THOMAS R. BENJEY and : ANN E. BENJY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY VERIFICATION The following defendants hereby state that (1) any facts averred in the attached SAIDIS SHUFF, FLOWER & LINDSAY Preliminary Objections are true and correct to the best of their knowledge; and (2) they understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. Date IJ - Sr` ) QZ> i Date / ,) - S-- WT S Lor Rayeond E. Diehl Donald E. Diehl 26 W. High Street Carlisle, PA c -;?t . t ?_: 7 t3 _? ?•; THOMAS R. BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE AND NOW, this 9`h day of December, 2005, 1, SUZANNE, C. HLXENBAUGH, Esquire, of the law firm of SAIDIS, SHUFF, FLOWER & LINDSAY, hereby certify that I served the Preliminary Objections filed in the above captioned case by United States Mail, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed to: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs Thomas R. and Ann E. Benjey 60 West Pomfret Street Carlisle, PA 17013 u ne C. Hixenbaugh, Esquire PA Supreme Court ID No. 91641 Saidis, Shuff, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY VS. NO. 05-6805 EQUITY SOUTH MIDDLETON TO` Defendant THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs VS. NNSHIP : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE : DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: PETITION FOR JOINDER ORDER AND NOW, this S ' day of September, 2006, action on the petition of the plaintiffs for the joinder of the above-captioned matters is DEFERRED pending ruling on the preliminary objections of the defendants filed to No. 2005-5863. BY THE COURT, !. 4l Hess, J. Marcus A. McKnight III, Esquire For the Plaintiffs Richard P. Mislitsky, Esquire Thomas Flower, Esquire For the Defendants Jq5 'r4 ? (til'r?-7 90 l7I E=i S- d S goo, 20 ?O+a'ar?-C7311? THOMAS R. BENJEY and ANN E. BENDY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL, and GENEVIEVE A. DIEHL, Defendants Ppar `TVR TO THE PROTHONOTARY: Kindly list for October 25, 2006, Argument Court the Defendants' Preliminary Objections previously filed to No. 05-5863 Equity. The Honorable Kevin A. Hess has heard motions argued in this matter. Respectfully submitted, SAIDIS, FLOWER & LINDSAY SAIDIS, FLOWER & LE`4DS" 2109 Market Street Camp Hill, PA Date: September 8, 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-5863 CIVIL TERM : CIVIL ACTION - EQUITY By: Thomas E. Flower, ID #83993 2109 Market Street Camp Hill, PA 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 ATTORNEYS FOR DEFENDANTS Distribution: Marcus A. McKnight, III, Esquire Attorney for the Plaintiff 60 W. Pomfret Street, Carlisle, PA 17013 Thomas E. Flower, Esquire Attorney for the Defendants 2109 Market Street, Camp Hill, PA 17011 CP VID THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY vs. NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT, J.J. ORDER AND NOW, this Z -4 day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Marcus A. McKnight, III, Esquire For the Plaintiffs Thomas E. Flower, Esquire For the Defendants 0 rlm ,,^` ? tt. , ?, / ? ? ?` ?•-i . ...?,?.. .,. ..._. i?,... THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY VS. NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT. J PINION AND ORDER The plaintiffs, Thomas R. Benjey and Ann E. Benjey, have filed a complaint in equity against the defendants, Donald, Suzanne, Raymond and Genevieve Diehl. The defendants are the developers of the Netherby Development which adjoins the land of the plaintiffs. In the plaintiffs' complaint, they acknowledge that the defendants obtained approval of South Middleton Township with respect to subdivision and land development plans, including storm water management plans, for the Netherby Development. The plaintiffs' complaint alleges, further, that, beginning in 2004 and continuing in 2005, the plaintiffs have experienced excessive storm water on their land and have noticed the development of sinkholes. The complaint goes on to allege that, because of serious deficiencies in the development's storm water plan and implementation of those plans by the defendants, the Netherby Development significantly adds to storm water directed onto the land of the plaintiffs. The complaint seeks injunctive relief to correct the storm water plan and to, otherwise, take remedial measures to alleviate storm water flow onto the plaintiffs' property. Without NO. 05-5863 EQUITY alleging specific deficiencies in the storm water plans, the plaintiffs' complaint attaches a copy of a report, prepared by its experts, outlining the deficiencies in the storm water plans. The defendants first posit a preliminary objection under Pa.R.C.P. 1028(a)(7) alleging a failure to exercise or exhaust a statutory remedy. Among the injunctive remedies sought by the plaintiffs is a requirement to update and correct deficiencies in the storm water management plan filed with South Middleton Township. Under the Municipalities' Planning Code, however, the exclusive remedy for those aggrieved by a plan approval is appeal to the Court of Common Pleas, within thirty (30) days following the approval. 53 Pa.C.S.A. 1101-A, 1102-A. It appears from the face of the pleadings (and we have received no information to the contrary) that the thirty-day appeal period has long since expired. Thus, we agree with the defendants that any attempt to force a wholesale reconsideration of the storm water management plan is barred. We do not mean, however, to bar evidence of deficiencies in the storm water plan or to prevent the plaintiffs from demonstrating how the plan contributes to injury to their property. At common law, in order to proceed in equity in a case involving water runoff, the plaintiffs are required to plead in accordance with the "common enemy" rule. That rule "regards surface water as a common enemy which every landowner must fight to get rid of as best he may. Tom Clark Chevrolet Inc. v. Dept. of Environment Protection, 816 A.2d 1246, 1252 (Pa. Cmwlth. 2003), citing several cases. There is liability only where a landowner (a) artificially diverts the water from its natural channel, or (b) unreasonably or unnecessarily increases the quantity or changes the quality of water discharged from his property. Id. at 1253. The plaintiffs' complaint, as currently framed, does not specifically set forth either of these common law theories. 2 NO. 05-5863 EQUITY At least one paragraph of the plaintiffs' complaint appears to invoke the provisions of the Storm Water Management Act, 32 P.S. Section 680.1-680.17. Specifically, paragraph 11 of the complaint alleges that the Netherby Development "significantly adds to the storm water directed onto the lands of the plaintiffs." The Storm Water Management Act provides, in pertinent part: 680.13. Duty of persons engaged in the development of land Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required: (1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or (2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury. The defendants contend that, under the Act, the only remedy available to a person injured by conduct, which violates the above provision, is to recover damages. Thus, according to the defendants, there exists a statutory remedy at law and we should dismiss any prayer for equitable relief. The position adopted by the defendants involves a misreading of Section 680.15 of the Act. 32 P.S. 680.15(c), indeed, allows the recovery of damages. However, the recovery of such damages is allowed in addition to "any other remedy provided under this act..." Paragraph (b) of 32 P.S. 680.15 provides, specifically, that suits may be brought in equity to "abate violation of this act." We are satisfied that a "violation" of the act would include a breach, by a landowner, NO. 05-5863 EQUITY of the duties set forth in 680.13. For this reason, we will deny the preliminary objection which seeks to dismiss the plaintiffs' complaint in equity on the ground that there exists an adequate remedy at law. The plaintiffs' complaint alleges injury to their property by virtue of excessive storm water runoff and the development of sinkholes. It goes on to allege that these injuries result, inter alia, from "serious deficiencies" in the management of storm water in the Netherby Development. The plaintiffs, however, do not delineate, in their complaint, the "serious deficiencies" of which they complain. Instead, they attach an expert report. Thus configured, the plaintiffs' complaint cannot be answered in conformity to the Rules of Civil Procedure. We know of no authority whereby Pennsylvania's fact-pleading requirement can be satisfied by the attachment of an expert report. To the contrary, the Rules of Civil Procedure are clear that the complaint must state the "material facts on which a cause of action ... is based," which facts must be stated in "a concise and summary form." Pa.R.C.P. 1019(a). In a related vein, the Rules also provide that a pleading "shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." Pa.R.C.P. 1022.1 Accordingly, we will sustain the preliminary objection of the defendants raising insufficient specificity in the complaint to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury caused by excessive storm water. ' We understand that the Rules allow and, in fact, require the attachment of any writing upon which a claim is based. Pa.R.C.P. 1019(i). The claim, in this case, is not "based" on the expert report, but rather the report is simply evidence of the plaintiffs' claim 4 NO. 05-5863 EQUITY ORDER AND NOW, this zio day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Marcus A. McKnight, III, Esquire For the Plaintiffs Thomas E. Flower, Esquire For the Defendants :rlm THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. : DONALD E. DIEHL, NO. 2005-5863 CIVIL TERM SUZANNE DIEHL, . RAYMOND E. DIEHL and CIVIL ACTION - EQUITY GENEVIEVE A. DIEHL, Defendants MOTION FOR DISMISSAL AND NOW, comes the Defendants by and through their attorney, Saidis, Flower & Lindsay, and avers the following: 1. Plaintiffs are Thomas R. Benjey and Anne E. Benjey, his wife. 2. Defendants are Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl and Genevieve A. Diehl. 3. Defendants filed Preliminary Objections and the Court entered the following order: "AND NOW, this 2nd day of February, 2007, the preliminary objections of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. (emphasis added) The remaining preliminary objects of the defendant are DENIED." SAIDIS, FLDJWER & LINDSAY ATTORNEYS-AT LAW 26 West High Street Carlisle, PA 4. Pa. R.C.P.§1028 provides as follows: (e) If the filing of an amendment, an amended pleading or a new pleading is allowed or required, it shall be filed within twenty days after notice of the order or within such other time as the court shall fix. 5. A copy of the Court Order dated February 2, 2007, was provided to the Plaintiffs by the Court. A copy of said order is attached hereto made a part hereof and marked Exhibit "A". 6. Subsequent to the Court Order, on March 12,2007, a letter from the township solicitor was sent to the Plaintiffs in an attempt to determine their intentions. A copy of said letter is attached hereto, made a part hereof and marked Exhibit "B". 7. The Court Order, by implication, requires the filing of an Amended Complaint. 8. The Court determined that the Defendants did not sufficient describe the cause and extent of the alleged injury. 9. Failure to file an Amended Pleading, in accordance with the Court Order, requires that the Complaint be dismissed. WHEREFORE, the Defendants respectfully request that Your Honorable Court enter an Order, dismissing the Complaint, in the above captioned matter. Respectfully submitted, Aobert,fi . Saidis, Esquire PA Supreme Court ID No. 21458 Suzanne C. Hixenbaugh, Esquire PA Supreme Court ID No. 91641 Saidis, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 SAIDIS, MOWER & LINDSAY ATTORNEYS-AT-LAW 26 West High Street Carlisle, PA THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs vs. DONALD E. DIEHL, SUZANNE : DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 05-5863 EQUITY IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT. J.J. ORDER AND NOW, this 1 ft4 day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Kevin A. Hess, J. Marcus A. McKnight, III, Esquire For the Plaintiffs Thomas E. Flower, Esquire For the Defendants :rlm E COPY FROM - U 'n Testimony whereof, I here unto set my hanc ind the seal of said Court at Carpals, Pa. 'his -,nA day o u Draft otarv Exhibit "A" THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY vs. NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT, J.J. OPINION AND ORDER The plaintiffs, Thomas R. Benjey and Ann E. Benjey, have filed a complaint in equity against the defendants, Donald, Suzanne, Raymond and Genevieve Diehl. The defendants are the developers of the Netherby Development which adjoins the land of the plaintiffs. In the plaintiffs' complaint, they acknowledge that the defendants obtained approval of South Middleton Township with respect to subdivision and land development plans, including storm water management plans, for the Netherby Development. The plaintiffs' complaint alleges, further, that, beginning in 2004 and continuing in 2005, the plaintiffs have experienced excessive storm water on their land and have noticed the development of sinkholes. The complaint goes on to allege that, because of serious deficiencies in the development's storm water plan and implementation of those plans by the defendants, the Netherby Development significantly adds to storm water directed onto the land of the plaintiffs. The complaint seeks injunctive relief to correct the storm water plan and to, otherwise, take remedial measures to alleviate storm water flow onto the plaintiffs' property. Without NO. 05-5863 EQUITY alleging specific deficiencies in the storm water plans, the plaintiffs' complaint attaches a copy of a report, prepared by its experts, outlining the deficiencies in the storm water plans. The defendants first posit a preliminary objection under Pa.R.C.P. 1028(a)(7) alleging a failure to exercise or exhaust a statutory remedy. Among the injunctive remedies sought by the plaintiffs is a requirement to update and correct deficiencies in the storm water management plan filed with South Middleton Township. Under the Municipalities' Planning Code, however, the exclusive remedy for those aggrieved by a plan approval is appeal to the Court of Common Pleas, within thirty (30) days following the approval. 53 Pa.C.S.A. 1101-A, 1102-A. It appears from the face of the pleadings (and we have received no information to the contrary) that the thirty-day appeal period has long since expired. Thus, we agree with the defendants that any attempt to force a wholesale reconsideration of the storm water management plan is barred. We do not mean, however, to bar evidence of deficiencies in the storm water plan or to prevent the plaintiffs from demonstrating how the plan contributes to injury to their property. At common law, in order to proceed in equity in a case involving water runoff, the plaintiffs are required to plead in accordance with the "common enemy" rule. That rule "regards surface water as a common enemy which every landowner must fight to get rid of as best he may. Tom Clark Chevrolet Inc. v. Dept. of Environment Protection, 816 A.2d 1246, 1252 (Pa. Cmwlth. 2003), citing several cases. There is liability only where a landowner (a) artificially diverts the water from its natural channel, or (b) unreasonably or unnecessarily increases the quantity or changes the quality of water discharged from his property. Id. at 1253. The plaintiffs' complaint, as currently framed, does not specifically set forth either of these common law theories. 2 N0.05-5863 EQUITY At least one paragraph of the plaintiffs' complaint appears to invoke the provisions of the Storm Water Management Act, 32 P.S. Section 680.1-680.17. Specifically, paragraph 11 of the complaint alleges that the Netherby Development "significantly adds to the storm water directed onto the lands of the plaintiffs." The Storm Water Management Act provides, in pertinent part: 680.13. Duty of persons engaged in the development of land Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required: (1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or (2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury. The defendants contend that, under the Act, the only remedy available to a person injured by conduct, which violates the above provision, is to recover damages. Thus, according to the defendants, there exists a statutory remedy at law and we should dismiss any prayer for equitable relief. The position adopted by the defendants involves a misreading of Section 680.15 of the Act. 32 P.S. 680.15(c), indeed, allows the recovery of damages. However, the recovery of such damages is allowed in addition to "any other remedy provided under this act..." Paragraph (b) of 32 P.S. 680.15 provides, specifically, that suits may be brought in equity to "abate violation of this act." We are satisfied that a "violation" of the act would include a breach, by a landowner, NO. 05-5863 EQUITY of the duties set forth in 680.13. For this reason, we will deny the preliminary objection which seeks to dismiss the plaintiffs' complaint in equity on the ground that there exists an adequate remedy at law. The plaintiffs' complaint alleges injury to their property by virtue of excessive storm water runoff and the development of sinkholes. It goes on to allege that these injuries result, inter alia, from "'serious deficiencies" in the management of storm water in the Netherby Development. The plaintiffs, however, do not delineate, in their complaint, the "serious deficiencies" of which they complain. Instead, they attach an expert report. Thus configured, the plaintiffs' complaint cannot be answered in conformity to the Rules of Civil Procedure. We know of no authority whereby Pennsylvania's fact-pleading requirement can be satisfied by the attachment of an expert report. To the contrary, the Rules of Civil Procedure are clear that the complaint must state the "material facts on which a cause of action ... is based," which facts must be stated in "a concise and summary form." Pa.R.C.P. 1019(a). In a related vein, the Rules also provide that a pleading "shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." Pa.R.C.P. 1022.1 Accordingly, we will sustain the preliminary objection of the defendants raising insufficient specificity in the complaint to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury caused by excessive storm water. We understand that the Rules allow and, in fact, require the attachment of any writing upon which a claim is based. Pa.R.C.P. 1019(i). The claim, in this case, is not "based" on the expert report, but rather the report is simply evidence of the plaintiffs' claim 4 NO. 05-5863 EQUITY ORDER AND NOW, this day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Marcus A. McKnight, III, Esquire For the Plaintiffs Thomas E. Flower, Esquire For the Defendants rlm Kevin A. Hess, J. 5 Law Office of iAAR 4 2007 Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 *Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7073 Offices in: Carlisle Chambersburg York March 12, 2007 Marcus A. McKnight, III, Esquire Irwin, the u? ght & Hughes 60 West Pomfret Street Carlisle, PA 17013 Thomas E. Flower, Esquire Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 RE: Thomas B. Benjey and Ann E. Benjey v. South Middleton Township No. 2005-5863 Gentlemen: In light of Judge Hess's decision on Preliminary Objections in the matter of Benjey v. Diehl, et al., I am writing to inquire as to how you intend to proceed. I think the question is best directed to Attorney McKnight. However, I would like to hear from both of you. I await your response. S R RPM/j cm cc: Robert C. Saidis, Esquire Barbara Wilson Exhibit "B" *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency THOMAS R. BENJEY and : ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE AND NOW this -A day of April 2007, I, SUZANNE C. HIXENBAUGH, Esquire, of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I served the Motion for Dismissal filed in the above captioned case by United States Mail, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed to: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs Thomas R. and Ann E. Benjey 60 West Pomfret Street Carlisle, PA 17013 --A , ert C. Saidis, Esquire v t PA-Supreme Court ID No. 21458 Suzanne C. Hixenbaugh, Esquire PA Supreme Court ID No. 91641 Saidis, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 _ .?: , , t"'- -; ?? ' _? ? _ THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2005-5863 CIVIL TERM IN RE: MOTION FOR DISMISSAL ORDER OF COURT AND NOW, this 9th day of April, 2007, a rule is issued on the plaintiffs to show cause why the relief requested in the within motion ought not to be granted. This rule is returnable twenty days after service. By the Court, evin. Hess, J. Marcus A. McKnight, III, Esquire For the Plaintiffs Robert C. Saidis, Esquire ??,.J S/ U q-D y Suzanne C. Hixenbaugh, Esquire For the Defendants : bg `? r^ ^t"",1 Plt/ 2CC71`,F ? -9 PI` ! *. 2L4 , Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5863 CIVIL TERM CIVIL ACTION - IN EQUITY AMENDED COMPLAINT IN EQUITY AND NOW, this 30th day of April 2007, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Amended Complaint against the defendants, DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL: 1. The Plaintiffs, Thomas R. Benjey and Ann E. Benjey, are adult individuals residing at 546 East Springville Road, Carlisle, Pennsylvania 17013. 2. The Defendants, Donald E. Diehl and Suzanne Diehl, are adult individuals residing at 110 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. The Defendants, Raymond E. Diehl and Genevieve A. Diehl, are adult individuals residing at 315 Myers Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3 4. The Defendants have filed a subdivision and land development plan with South Middleton Township which is now known as the Netherby Development. 5. Said lands adjoin the property of the Plaintiffs. 6. Pursuant to their plans, the Defendants submitted stormwater plans to manage the storm water created by the Netherby Development. 7. Beginning in 2004 and continuing into 2007, the Plaintiffs have experienced excessive stormwater on their lands with the alarming development of sinkholes on their land. 8. The Plaintiffs hired Liberty Environmental, Inc. to inspect the site and examine the stormwater plans and implementation of those plans by the Defendants with regard to the Netherby Development. 9. The experts, James P. Cinelli, P.E., and Walter M. Leis, P.G., on behalf of Liberty Environmental, Inc., have prepared a report, a copy of which is marked as Exhibit "A" and is attached to the Complaint in Equity filed on November 10, 2005. 10. The report finds serious deficiencies in the stormwater plans and implementation of those plans by the Defendants. 4 11. The report finds that the Netherby Development significantly adds to the stormwater directed onto the lands of the Plaintiffs, and finds that the sinkholes are caused by the excessive stormwater created by the Netherby project. 12. The Defendants installed a detention pond which was too small for the stormwater generated by the site. The excess stormwater has flowed onto the property of the Plaintiffs causing the sinkholes and damaging the property of the Plaintiffs. 13. The Defendants have taken certain actions based in part on the recommendations of the experts retained and hired by the Plaintiffs and have benefited by their expert report and recommendations. 14. The Plaintiffs remain concerned that despite the remedial actions taken by the Defendants that water in excess of the predevelopment rates will continue to flow from the Netherby Subdivision onto the property of the Plaintiffs. 15. The Plaintiffs seek the following relief: A. Injunctive relief by the Court which orders the Defendants to correct and repair the sinkholes created on the Plaintiffs' property at the Defendants' expense. B. That the Defendants be directed to install a new storm sewer line which conveys the stormwater flow beyond the Plaintiffs' property. C. Take additional remedial actions on the Netherby site to increase the amount of water detained on the property. 5 D. Repair and correct any sinkholes which have developed on the lands of the Plaintiffs and commit to repairing any new sinkholes which are created on the lands of the Plaintiffs. E. Reasonable expert costs and legal fees and expenses of the Plaintiffs for this action as well as time required to implement the above remedies. F. The Defendants must be required to keep the stormwater runoff for the Netherby Subdivision to its predevelopment rate of runoff. WHEREFORE, the Plaintiffs, Thomas R. Benjey and Ann E. Benjey, seek relief as set forth above in addition to any other remedies which the Court deems appropriate in this case. Respectfully submitted, IRWIN & McKNIGHT By: Markus A. Mc ight, III, Esquire est PomfrJvania Street (' 1 sle_ Penns 17013 (717)':49.2353 Supreme Court I.D. No. 25476 Date: April 30, 2007 Attorney for plaintiffs 6 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. THOMAS R. BENJE Date: April 30, 2007 6 imp THOMAS BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - IN EQUITY Defendant CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Suzanne C. Hixenbaugh, Esq. Saidis Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN & McKNIGHT By: Ma#cus A.McKnight, III, Esquire est Pomf t Street ;le, PA 013 (717},22353 Supreme Court I.D. No. 25476 Date: April 30, 2007 7 C'3 ^? czj f ? t.? ;'t-1 rr ? _ 1 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5863 CIVIL TERM CIVIL ACTION - IN EQUITY ANSWER TO MOTION FOR DISMISSAL AND NOW, this 30th day of April 2007, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Answer to Motion for Dismissal: 1. The averments of fact contained in paragraph one (1) of the Motion are admitted. 2. The averments of fact contained in paragraph two (2) of the Motion are admitted. 3. The averments of fact contained in paragraph three (3) of the Motion are admitted. 4. The averments of fact contained in paragraph four (4) of the Motion are admitted in part and denied in part. The Rule of Court speaks for itself but where the period for filing an Amended Complaint was not set, the Plaintiffs filed an Amended Complaint on April 30, 2007, seeking to satisfy the Order of Court set on February 2, 2007. 5. The averments of fact contained in paragraph five (5) of the Motion are admitted. 6. The averments of fact contained in paragraph six (6) of the Motion are admitted. 7. The averments of fact contained in paragraph seven (7) of the Motion are admitted. The Plaintiff has now filed an Amended Complaint and the Defendants have suffered no prejudice by the filing of said Amended Complaint attached hereto and marked as Exhibit "A". 8. The averments of fact contained in paragraph eight (8) of the Motion are specifically denied. On the contrary, the Amended Complaint now addresses the concerns of the Court. 9. The averments of fact contained in paragraph nine (9) of the Motion are specifically denied. On the contrary, the Defendants should answer the Amended Complaint of the Plaintiffs. WHEREFORE, the Motion of the Defendants should be dismissed. Respectfully submitted, MCKNIGHT By: acus A McKnight, III, Esquire 0 West P ret Street ennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for Plaintiffs Date: April 30, 2007 2 EXHIBIT "A" THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - IN EQUITY SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 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 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5863 CIVIL TERM CIVIL ACTION - IN EQUITY AMENDED COMPLAINT IN EQUITY AND NOW, this 30th day of April 2007, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Amended Complaint against the defendants, DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL: 1. The Plaintiffs, Thomas R. Benjey and Ann E. Benjey, are adult individuals residing at 546 East Springville Road, Carlisle, Pennsylvania 17013. 2. The Defendants, Donald E. Diehl and Suzanne Diehl, are adult individuals residing at 110 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. The Defendants, Raymond E. Diehl and Genevieve A. Diehl, are adult individuals residing at 315 Myers Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3 4. The Defendants have filed a subdivision and land development plan with South Middleton Township which is now known as the Netherby Development. 5. Said lands adjoin the property of the Plaintiffs. 6. Pursuant to their plans, the Defendants submitted stormwater plans to manage the storm water created by the Netherby Development. 7. Beginning in 2004 and continuing into 2007, the Plaintiffs have experienced excessive stormwater on their lands with the alarming development of sinkholes on their land. 8. The Plaintiffs hired Liberty Environmental, Inc. to inspect the site and examine the stormwater plans and implementation of those plans by the Defendants with regard to the Netherby Development. 9. The experts, James P. Cinelli, P.E., and Walter M. Leis, P.G., on behalf of Liberty Environmental, Inc., have prepared a report, a copy of which is marked as Exhibit "A" and is attached to the Complaint in Equity filed on November 10, 2005. 10. The report finds serious deficiencies in the stormwater plans and implementation of those plans by the Defendants. 4 11. The report finds that the Netherby Development significantly adds to the stormwater directed onto the lands of the Plaintiffs, and finds that the sinkholes are caused by the excessive THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - IN EQUITY SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 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 D. Repair and correct any sinkholes which have developed on the lands of the Plaintiffs and commit to repairing any new sinkholes which are created on the lands of the Plaintiffs. E. Reasonable expert costs and legal fees and expenses of the Plaintiffs for this action as well as time required to implement the above remedies. F. The Defendants must be required to keep the stormwater runoff for the Netherby Subdivision to its predevelopment rate of runoff. WHEREFORE, the Plaintiffs, Thomas R. Benjey and Ann E. Benjey, seek relief as set forth above in addition to any other remedies which the Court deems appropriate in this case. Respectfully submitted, IRWIN & McKNIGHT By: ar us A. Mc fight, III, Esquire est Pomfre Street C lde. Penns vania 17013 (717)'249-2353 Supreme Court I.D. No. 25476 Date: April 30, 2007 Attorney for plaintiffs 6 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. THOMAS R. BENJEY Date: April 30, 2007 6 THOMAS BENJEY and IN THE COURT OF COMMON PLEAS OF ANN BENJEY, his wife, . Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - IN EQUITY Defendant . CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Suzanne C. Hixenbaugh, Esq. Saidis Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN & McKNIGHT By: a cus A. cKnight, III, Esquire 60 est Pomf t Street ar 'sle, PA 013 (717T249--2353 Supreme Court I.D. No. 25476 Date: April 30, 2007 7 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. THOMAS R. BEN Y Date: April 30, 2007 6 THOMAS BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN BENJEY, his wife, . Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Suzanne C. Hixenbaugh, Esq. Saidis Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN By: t(717 A. Mlet night, III, Esquire Pom Street P 17013 -2353 Supreme Court I.D. No. 25476 Date: April 30, 2007 8 ?? -? __ "?? -_ ?? f1?? ? ?_. C;J 'D%?, ' - _ 0 -' ' ? l t( .?- -;= m - ?' ! ? :.n ? - .? ?? ? THOMAS R. BENJEY and ANN E. BENJEY, his wife, IN THE COURT OF COMMON PLEA$ OF CUMBERLAND COUNTY, PA Plaintiffs, V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NO. 2005-5863 CIVIL TERM : CIVIL ACTION - EQUITY DEFENDANTS' PETITION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT IN EQUITY AND NOW COMES, the Defendants by and through their attorney, Saidis, Flower & Lindsay, and hereby represent as follows: 1) This matter was initiated by the Plaintiffs filing of a Complaint in Equity on or about November 10, 2005. 2) The Defendants filed Preliminary Objections to the Plaintiffs' Complaint in Equity on or about December 5, 2005. 3) Following argument, the Defendants' Preliminary Objections were sustained in part and overruled in part. A copy of the February 2, 2007, Opinion and Order of the Honorable Kevin A. Hess is attached hereto and made part hereof and marked as Exhibit "A". 4) Specifically, this Honorable Court noted that: "we will sustain the preliminary objection of the defendants raising insufficient specificity in the complaint to the extent that the complaint fails to sufficiently described [sic] the cause and extent of the alleged injury caused by excessive storm water." Exhibit "A" at 4. 5) The Defendants did not file a timely amended pleading within twenty days of the February 2, 2007, Opinion and Order as is required by Pa.R.C.P. 1028. (e). 6) Defendants thereafter filed a Motion for Dismissal on or about April 3, 2007 concerning the Plaintiffs' failure to file a timely amended pleading. 7) On April 9, 2007, this Honorable Court issued a Rule on the Plaintiffs to Show Cause why the relief requested in the Motion for Dismissal should not be granted. The Rule was made returnable twenty days after service. S) Contemporaneously with their Answer to the Rule to Show Cause, the Plaintiffs filed an Amended Complaint in Equity on April 30, 2007. 9) The Defendants have filed Preliminary Objections to Plaintiffs' Amended Complaint in Equity because it also lacks sufficient specificity. 10) The February 2, 2007 Court Order noted that: A) fact-pleading requirements cannot be satisfied by the attachment of an expert report; B) a Complaint must state material facts on which a cause of action is based; and C) each paragraph shall contain as far as practicable only one material allegation. 11) The Plaintiffs again seek to satisfy the requirements of fact-pleading by referring to the expert report attached to their original Complaint in Equity. 12) In their Amended Complaint, the Plaintiffs simply added three additional paragraphs which, like the other paragraphs previously objected to in the original Complaint, lack any specificity from which one could form an answer. 13) It is respectfully submitted that the Plaintiffs' Amended Complaint in Equity fails to conform to this Honorable Court's prior ruling of February 2, 2007, in that it also lacks sufficient specificity and cannot be properly answered. 14) The Court provided the Plaintiffs with the opportunity to submit a revised pleading that conforms to the Pennsylvania Rules of Civil Procedure. 15) The Plaintiffs' Amended Complaint in Equity should be dismissed for failure to conform to this Court's prior Order and to the Pennsylvania Rules of Civil Procedure. 16) The Plaintiffs' conduct in simply filing a substantially similar pleading and adding additional unspecific and impertinent averments amounts to obdurate conduct. 17) It is respectfully submitted that the Plaintiffs should be directed to pay the Defendants' counsel fees associated with the presentation of this Petition in the amount of $3,472.50. WHEREFORE Defendants respectfully request that the complaint against them be stricken and Plaintiff's be awarded reasonable attorney fees. Respectfully submitted, SAIDIS, FLOWE SAY ?7 L By A? A.4-- - Date Robert . Sai is, Esquire PA Supreme Court ID No. 21458 Dean E. Reynosa, Esquire PA Supreme Court ID No. 80440 Attorney for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 M THOMAS R, BENJEY and : J N THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION --EQUITY VS. : NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DMHL, RAYMOND E. DIEHL and : GENEVIEV,E A. I)MHL% Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT, J.J. ORDER' AND NOW, this 2-4 day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED.. BY TBE COURT, Marcus A. McKnight, III, Esquire For the Plaintiffs Tbomas E. Flower, Esquire 'For the Defendants :rim TRUE COPY FROM REWRO 'n Testimnnywh eteoft I hecia:unto set my hand ind the seal Of said Court at Carlisle, pa F . ; . ? h?ero+taN THOMAS R. BENJEY and : IN THE- COURT OF COMMON PLEAS OF. ANNE. EENJEY, his wife, : 'CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY VS. : NO. 05-5863 EQUITY DONALD E. DIEHL, sUZANNE DIEHL, RAYMOND E. DIEHL anal : GENEVIEVE A. DIEHL,• Defendants IN RE: PREZ;IMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT. J.J. OPINION AND ORDER The plaintiffs, Thomas R. Benjey and Ann E. Benjey, have filed a =mplaint in equity against the defendants, Donald, Suzanne, Raymond and Genevieve Diehl. The defendants are the developers of the Netherby Development which adjoins the land of the plaintiffs. In The plaintiffs' complaint,'they acknowledge that the defendants obtained approval of South Middleton Township with respect to subdivision and land development plans, including storm water management plans, for the Netherby Development. 'The plaintiffs' complaint alleges,. further, that, beginning in 2004 and continuing in 2006, the plaintiffs have experienced excessive storm water on their land and have noticed the development of sinkholes. The complaint goes on to allege that, because of serious deficiencies in the development's storm water plan and implementation of those plans by;the defendants, the Netherby Development significantly adds to storm water directed onto the land of the plaintiffs. The complaint seeks injunctive reliefto correct the storm water plan and to, otherwise, take remedial measureslo alleviate storm water flow onto the plaintiffs' property. Without N0.05-5863 EQUITY alleging ppeeific deficiencies in the storm water plans, the plaintiffs' complaint attaches a copy of a report, prepared by its experts, outliping the deficienoies in the storm water plans. The defendants first posit a preliminary objection under Pa.R.CY. 1028(a)(7) alleging a failure to exercise or exhaust a statutory remedy. Among the injunctive remedies sought by-6i plaintiffs is a requirement to update and correct deficiencies in the storm water management plan filed with South Middleton Township. Under the Municipalities' Planning Code, however, the exclusive 'remedy for those aggrieved by a plan approval is appeal to the Court of Common Pleas, within thirty (30) days following the approval. 53 Pa.C.S.A. 1101, 11 02-A, It appears from the face of the pleadings (and we have received no information to the contrary) that the thirty-day appeal period has long since expired. Thus, we agree with the defendants that any attempt to force a wholesale reconsideration of the storm water management plan is barred, 'We do not mean, however, to bar evidence of deficiencies in the storm water plan or to prevent the plaintiffs from demonstrating how the plan contributes to injury to teir property. At common law, in order to proceed in equity in a case involving *ater runoff, the plainffA are.requu:ed to plead n acoordance with the."common enexny?; Ie..,?'hat rule,"xegaxds .. ; .. surface water as a common enemy which every land.Qwner musi fight to get rid of as best he may. Tory Clark Chevrolet Inc. v. Dept. of Environment Protection, 816 A..2d 1246, 1252 (Pa. Cmwlth. 2003), citing several cases. There is liability only where a landowner (a) artificially diverts the water from its natural channel, or (b) unreasonably or unnecessarily increases the quantity or changes the quality of water discharged from his property. Id. at 1253. The plaintiffs' complaint, as currently framed, does not specifically set forth either of these -common law theories. 2 . NO. OS-S863 EQUITY - At least one paragraph of the plaintiffs' complaint appears to involce• the pravisios of the Storm Water Management Aet, 32 P.S. Section 680.1-680.17. Specifically, paragraph 11 of the complaint alleges that toe Netherby Development "significantly adds to'th6 sfoim Water' i i&dtdd 6r twth&J=ds,ol the plaintiffs." The Storm Water Management Act provides, in pertinent part: 680.13. Duty of persons engaged in the development of land Any landowner and any person engaged in the alteration. or development of land which may affect storm water rLmoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Sueh measures shall include such actions as are required: (1) to assure that the magnum rate of storm water runoff is no greater after development than prior to development activities; or (2) to manage the quantity, velocity and . direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury. . ?- ,- The •defendants -contend that, under the Act, the only remedy. available,1o a person injured by. . conduct, which violates the above provision, is to recover damages. Thus, according,to the defendants, there exists a statutory remedy at law and we should dismiss any prayer for equitable . relief The position adopted by the defendants involves a misreading of Section-680.15 of the Act. 32 P.S. 680.15(c), indeed, allows the recovery of damages. However, the recovery of such damages is allowed in addition to "any other remedy provided under this act.-.." Paragraph. (bj of32 P.S. 680.15 provides, specifically, that suits may be brought in equity to "abate violation of . this act." We are satisfied that a "violation" of the act would include a breach, by a landowner, 3 NO. 05-5863 EQLUTY of the duties set forth in 680.13, For this reason, we will deny the preliminary objection which. seeks to dismiss the plaintiffs' complaint in equity on the ground that there exists an adequate remedy at law. The plaintiffs' complaint alleges injury to their property by virtue of excessive storm water runoff and the development of sinkholes. It goes on to allege that these injuries result, inter aiia, from "serious def ciencies" in the management of storm water in the Netherby Development. The plaintiffs, however, do not delineate, in their complaint,- the "serious deficiencies" of which they complain. Instead, they attach an expert report. Thus• configured, . the plaintiffs' complaint cannot be, answered in conformity to the Rules of Civil Procedure. N+Te lomow of no authority whereby Pennsylvania's fact-pleading requirement can be.satisfi.ed by the attachment of an expert report.' To the contrary, the Rules of Civil Procedure are clear that the + complaint must state the "material facts on which a cause of action ... is based," which facts must be stated in "a concise' and summary form." Pa.R.. C.P. 1019(a). In a related vein, the Rules also provide that a pleading "shall be divided into paragraphs numbered consecutively. Each .paragraph shall..contain-as far as.praadcable only one material allegation." Pa.R.C:P. 1022.3, Accordingly, we will sustain the preliminary objection'of the defendants raising insufficient specificity in the complaint to the extent that the complaint fails to sufficiently-described the cause and extent of the alleged injury caused by excessive storm water. I We understand that the Rules allow and, in fact, require the attachment of any writing upon which a claim is based. Pa.RC.P.1 019(i). The claim, in this case, is not "based" on the expert report, but rather the report is simply Evidence of the plaintiffs' claim 4 NO. 05-5863 EQ= . ORDER AND NOW, this day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. ' BX THE COURT, Kevin ?. Hess, J. Marcus A, McKnight, III, Esquire For the Plaintiffs Thomas E. Flower, Esquire For the befendants :rlm 5 THOMAS R. BENJEY and ANNE E. BENJEY, Plaintiffs V. : DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY VERIFICATION Subject to 18 Pa.C.S. 4904 relating to unworn falsification to authorities, I, Donald E. Diehl, state as follows: 1. I am authorized to make this verification on behalf of Diehl Partnership. 2. I have reviewed the foregoing Petition, and the allegations contained therein are true and correct to the best of my personal knowledge, information and belief. 3. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsifications to authorities. 4. On the date set forth below I signed this original Verification and faxed it to my attorneys and authorize my attorneys to attach the facsimile copy to the original document to be filed with the Court pursuant to Pa.R.C.P. 205.3(a). Dated: Donald E. Diehl v . . CERTIFICATE OF SERVICE AND NOW,g/?4- d q , 2007, I, Suzanne C. Hixenbaugh, Esquire, of the law firm of SAIDIS, FLO R & LINDSAY, hereby certify that I did serve a true and correct copy of the foregoing Defendants' Petition to Dismiss Plaintiffs' Amended Complaint in Equity upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs Thomas R. and Ann E. Benjey 60 West Pomfret Street Carlisle, PA 17013 19 J Suzanne C. Hixenbaugh, Esquire PA Supreme Court ID No. 91641 Attorney for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 A? THOMAS R. BENJEY and : ANN E. BENJEY, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, : Defendants . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT IN EQUITY Defendants, by their undersigned counsel, Saidis, Flower and Lindsay preliminarily object to the Plaintiffs' complaint as follows: I. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF COMPLAINT 1. Under Pa.R.C.P. 1028(a)(3), a party may preliminarily object to a pleading for insufficient specificity in a pleading. 2. Paragraph 5 of the Complaint fails to allege with specificity the particular tract or tracts of adjoining property owned by the Plaintiff, including the recording information, deed references and legal descriptions, which are the subject of the lawsuit. 3. Paragraph 7 of the Complaint fails to allege specific facts. Rather the Plaintiffs' allege conclusions concerning having "experienced excessive storm water" and the "alarming development of sinkholes". 4. Paragraph 10 of the Complaint fails to allege with specificity material facts concerning the "serious deficiencies" complained of by the Plaintiff. 5. Plaintiffs failure to plead specific material facts does not allow the Defendants to answer or prepare a defense and Plaintiffs should be required to file a more specific pleading. WHEREFORE, Defendants respectfully request that the complaint against them be stricken and the action against them dismissed. Robert Q: Saidis PA Supreme Court ID No. 21458 Dean E. Reynosa PA Supreme Court ID No. 80440 Saidis, Shuff, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 a % IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE AND NOW, this Q?day of May, 2007, I, SUZANNE C. HIXENBAUGH, Esquire, THOMAS R. BENJEY and: ANN E. BENJEY, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I served the Preliminary Objections filed in the above captioned case by United States Mail, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed to: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs Thomas R. and Ann E. Benjey 60 West Pomfret Street Carlisle, PA 17013 Su e C. Hixenbaugh, Esquire PA 'Supreme Court ID No. 91641 Saidis, Flower & Lindsay Attorneys for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 + i.! -Ti .i THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY vs. NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE : DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: DEFENDANTS' PETITION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT IN EQUITY ORDER AND NOW, this 3 p - day of May, 2007, the Prothonotary is directed to list the above-captioned matter for argument at the argument court set for August 15, 2007. ,A/4arcus A. McKnight, III, Esqu For the Plaintiffs ,x0bert Saidis, Esquire For the Defendants Court Administrator : rlm BY THE COURT, V11\1 'ItlYoNN21d s 1 :s Nd I £ AVW c00Z AMONOi- .odd 3Hi, -t} 33 4-l.-M31U PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. - -- - --- - --- - -- - -- - ------------------- - -------- - ----- - -------- - ---------- - -------- - ---- CAPTION OF CASE (entire caption must be stated in full) Thomas R. Benjey and Ann E. Benjey, his wife (Plaintiff) vs. Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl, Civil Action - Equity and Genevieve A. Diehl (Defendant) No. 5863 , 2005 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections. Judge Hess has already ordered that De eni dant's Petition to Dismiss in the above captioned case be argued on Auqust 15, 2007 2. Identify counsel who will argue cases: (a) for plaintiff. Dean E. Reynosa, Esquire (Name and Address) Saidis, Flower & Lindsay, 2109 Market St_,Ctp Hill, PA 17011 (b) i de l2ft". McKnight, Esquire 60 West Pomfret Sttee ,an l.Is e, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Auqust 15, 2007 rrmr your name Defendants July 25, 2007 Date: Attorney for a ?-n CY, r THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - EQUITY vs. NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : GENEVIEVE A. DIEHL, Defendants IN RE: PETITION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT AND PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE HESS, OLER AND GUIDO, J.J. ORDER AND NOW, this yr day of October, 2007, following argument thereon, the petition of the defendants to dismiss the plaintiffs' amended complaint is DENIED. The preliminary objections of the defendants to the plaintiffs' amended complaint are OVERRULED. BY THE COURT, ,4,1 Hess, J. Marcus A. McKnight, III, Esquire For the Plaintiffs GOP/( E'er' rrt.2 t LCJ-- Dean E. Reynosa, Esquire ? o?N?o7 For the Defendants :rlm til?l .Yti,:: ,? ? ?-? . :? L ?,-, THOMAS R. BENJEY and ANN E. BENJEY, his wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiffs, V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY NOTICE TO PLEAD To: Plaintiffs C/o Marcus A. McKnight, III, Esquire You are hereby notified to file a written response to the enclosed Answer to Amended Complaint in Equity within twenty (20) days from service hereof or a judgment may be entered against you. ll oil-( ) 7 Date Respectfully Submitted, SAIDIS, FLOWE & LINDSAY By: Den E. Reynosa, squire Supreme Court I.D. # 80440 2109 Market Street Camp Hill, Pa 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 Attorney for Defendants THOMAS R. BENJEY and ANN E. BENJEY, his wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiffs, V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants : NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT IN EQUITY AND NEW MATTER AND NOW COMES, the Defendants, Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl and Genevieve A. Diehl, by and through their attorney, Saidis, Flower & Lindsay, and hereby represent as follows: 1) Admitted upon information and belief. 2) Admitted. 3) Admitted. 4) Admitted. 5) Admitted. 6) Denied. The averments of this paragraph refer to a writing, which speaks for itself. 7) Denied. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the true of this averment and proof of such is hereby demanded at trial. 8) Denied. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment and proof of such is hereby demanded at trial. 9) Admitted. 10) Denied. The Report is a written document that speaks for itself. Furthermore, the averments contained in this paragraph state legal conclusions to which no response is required. 11) Denied. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment and proof of such is hereby demanded at trial. 12) Admitted in part and denied in part. It is admitted that the Defendants contracted to have a detention pond installed to capture storm water for the property. As to the balance of the averments in this paragraph, after reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments and proof of such is hereby demanded at trial. 13) Denied. To the extent that Plaintiffs refer to `certain actions' taken by the Defendants, after reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments and proof of such is hereby demanded at trial. Defendants are not aware of what "certain actions" that the Plaintiffs are referring to that they may or may not have taken. 14) Denied. After reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments and proof of such is hereby demanded at trial. 15) Admitted in part and denied in part. It is admitted that the Plaintiffs are seeking the relief requested. It is denied that the Plaintiffs are entitled to any relief. WHEREFORE, the Defendants request that the Plaintiffs' Complaint be dismissed with prejudice and judgment be entered in their favor. NEW MATTER 16) The answers to Paragraphs one through fifteen are incorporated herein as if fully set forth at length below. 17) The Plaintiffs claims are barred by the doctrine of laches. 18) The Defendants retained Akens Engineering Associates, Inc., to evaluate the Plaintiffs' concerns regarding storm water runoff. 19) George W. Akens, P.E., of Akens Engineering prepared a report dated July 17, 2006, (hereinafter "Akens Report") concerning his investigation and evaluation of the storm water runoff of the Defendants' property. 20) The Akens' Report noted that the existing basin could adequately accommodate any storm water runoff for Phases I and II of the Netherby Development. 21) The Netherby Development is currently in Phase II of the development stage. 22) The Plaintiffs have failed to state a claim upon which relief can be granted. WHEREFORE, the Defendants request that the Plaintiffs' Complaint be dismissed with prejudice and judgment be entered in their favor. Respectfully submitted, SAIDIS, FLOWER & LINDSAY 1 ? r' By: Date R06ert C. Saidis, Esgttire PA Supreme Court ID No. 21458 Dean E. Reynosa, Esquire PA Supreme Court ID No. 80440 Attorney for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 VERIFICATION I, Donald E. Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November ,=?'l , 2007--?---? ?---} Donald E. Diehl VERIFICATION I, Suzanne Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsifi, Dated: November a 2007 VERIFICATION I, Raymond E. Diehl, hereby verify that the statements made in the foregoing Answer to Plaintiffs' Amended Complaint in Equity with New Matter are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November A , 2007 c Ray and E. Diehl VERIFICATION I, Genevieve A. Diehl, hereby verify that the statements made in the foregoing Answer to Plaintiffs' Amended Complaint in Equity with New Matter are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November dy , 2007 Genevieve A. Dieh ??? CERTIFICATE OF SERVICE AND NOW, November,, 2007, I, DEAN E. REYNOSA, Esquire, of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I did serve a true and correct copy of the foregoing Defendants' Answer to Plaintiffs' Amended Complaint in Equity upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs 60 West Pomfret Street Carlisle, PA 17013 Dean E. Reynosa, Esquire Supreme Court I.D. # 80440 2109 Market Street Camp Hill, Pa 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 Attorney for Defendants C-3 T rea ?:? - =jrn THOMAS R. BENJEY and ANN E. BENJEY, his wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiffs, V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants V. : NO. 2005-5863 CIVIL TERM : CIVIL ACTION - EQUITY DAWOOD ENGINEERING, INC. and ROGELE INC., Additional Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATIN ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMAITON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. AVISO PARA DEFENDER Conforme a PA R.C.P. Num. 1018.1 Usted ha sido demandado/a en la corte. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defenses de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. IF YOU DO NOT HAVE A LAWYER CONTACT: CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs, V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants V. DAWOOD ENGINEERING, INC. and ROGELE INC., Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY DEFENDANTS DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL ADDITIONAL DEFENDANT COMPLAINT AGAINST DAWOOD ENGINEERING, INC. and ROGELE INC. AND NOW COMES, the Defendants, Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl and Genevieve A. Diehl, (hereinafter "DIEHL DEFENDANTS") by and through their attorneys, Saidis, Flower & Lindsay, and state a cause of action against the Additional Defendants as follows: 1) The Plaintiffs filed an Amended Complaint seeking damages from the Diehl Defendants concerning alleged excess water runoff onto their property from property owned by the Diehl Defendants better known as the Netherby Development. A true and correct copy of Plaintiffs' Amended Complaint is attached hereto as Exhibit "A„ 2) In their Amended Complaint, the Plaintiffs claim that the Diehl Defendants "installed a detention pond which was too small for the stromwater generated by the site." Exhibit A at T 12. 3) Additional Defendant, Dawood Engineering, Inc., is a Pennsylvania Corporation with its offices located at 2040 Good Hope Road, Enola, Cumberland County, Pennsylvania, 17025. 4) Additional Defendant, Rogele, Inc., is a Pennsylvania Corporation with its offices located at 1025 South 21St Street, Harrisburg, Dauphin County, Pennsylvania, 17105. 5) The Plaintiffs' filed a Complaint against the Diehl Defendants on or about November 10, 2005. 6) The Court granted, in part, the Diehl Defendants' Preliminary Objections to the Plaintiffs' original Complaint by Order dated February 2, 2007. 7) The Plaintiffs filed an Amended Complaint on or about April 30, 2007. 8) By Order dated October 4, 2007, the Court denied the Diehl Defendants' Preliminary Objections to the Plaintiffs' Amended Complaint. 9) The Plaintiffs' Amended Complaint seeks damages against the Diehl Defendants for damages allegedly caused by excessive stormwater runoff. DIEHL DEFENDANTS V. ADDITIONAL DEFENDANT, ROGELE, INC 10) Paragraphs one through nine are incorporated herein as if fully set forth at length below. 11) The Diehl Defendants contracted with Additional Defendant Rogele, Inc., to provide construction services for the Netherby Development. 12) As part of the contract, Rogele, Inc., was to construct a sediment basin pond to be utilized during the construction of the Netherby Development (hereinafter the "Construction Period Basin") 13) As part of the contract, the Diehl Defendants relied upon Rogele, Inc., to perform its duties in a workmanlike manner that would comply with the subdivision plan and stormwater management plans approved by South Middleton Township, Cumberland County, Pennsylvania. 14) Instead, the Diehl Defendants believe and therefore aver that, Rogele, Inc., installed a smaller storm water detention pond which would have been utilized after final construction of the Netherby Development (hereinafter "Post Construction Basin") 15) Rogele was informed of the deficient construction of the Construction Basin by the Bureau of Water Quality Protection with the Department of Environmental Protection by reports issued January 9, 2004 and March 5, 2004 as shown on Exhibits "B" and "C", copies of which are attached hereto and incorporated herein. 17) As a result of Rogele's construction of the Post Construction Basin, and not the Construction Period Basin, South Middleton Township, Cumberland County, Pennsylvania, placed a moratorium on all development for Netherby on April 28, 2005. 18) As a result of Rogele's failure to properly construct a Construction Period Basin, South Middleton Township did not lift the moratorium on the Netherby Development until August 10, 2006. 19) Rogele breached its duties of the Contract by failing to properly construct the Construction Period Basin in accordance with the subdivision plan and stormwater management plan approved by South Middleton Township. 20) As a result of Rogele's breach of contract, the Diehl Defendants were required to contract with John W. Gleim, Jr., Incorporated, Excavating (hereinafter "Gleim Excavating") in order to construct a proper construction sediment basin that should have been constructed by Rogele. 21) The Diehl Defendants were further required to present their plans for the Netherby Development at several township meetings with the assistance of counsel. 22) As a result of Rogele's breach of contract, the Diehl Defendants were required to retain an expert witness, Akens Engineering Associates, Incorporated, to perform calculations related to stormwater drainage and present material to South Middleton Township to confirm the Construction Period Basin, as constructed by Gleim, complied with the approved subdivision plan and stormwater management plan. 23) Diehl lost profits since its first plan was rejected by South Middleton Township Supervisors on April 28, 2005 as a result of Rogele's failure to property construct a Construction Period Basin. 24) As a result of Rogele's breach of contract, stormwater from the Netherby Development allegedly flowed onto adjoining land owned by the Plaintiffs. 25) If the Diehl Defendants are found liable to the Plaintiffs, the Additional Defendant Rogele, Inc., is solely liable, liable over or is jointly and severally liable with the Diehl Defendants concerning the Plaintiffs' cause of action. WHEREFORE, the Diehl Defendants request judgment against Additional Defendant Rogele in its favor in an amount in excess of $50,000.00. DIEHL DEFENDANTS V. ADDITIONAL DEFENDANT DAWOOD ENGINEERING, INC. 26) Paragraphs one through twenty-five are incorporated herein as if fully set forth at length below. 27) The Diehl Defendants contracted with Additional Defendant Dawood Engineering, Inc. (hereinafter "Dawood") for the purpose of providing engineering services, including the design and supervision of the Construction Period Basin in the planning and construction of the Netherby Development. 28) Dawood's duties included preparation of proper specifications and supervision of Rogele for the Construction Period Basin. 29) Dawood was further responsible to ensure that Rogele properly constructed the appropriate Construction Period Basin for the Netherby Development project. 30) Rogele failed to construct the appropriate Construction Period Basin. 31) Rogele instead constructed a Post Construction Basin Pond that did not meet the requirements of the subdivision plan and stormwater management plan approved by South Middleton Township. 32) As a result of Dawood's failure to ensure that Rogele properly constructed the Construction Period Basin, the Diehl Defendants were required to contract with Gleim Excavating to construct the proper Construction Period Basin that should have been constructed by Rogele, Inc. 33) The Diehl Defendants were further required to present their plans for the Netherby Development at several township meetings with the assistance of counsel. 34) As a result of Dawood's breach of contract, Diehl was required to retain an expert witness, Akens Engineering Associates, Incorporated, to perform calculations related to stormwater drainage and present material to South Middleton Township, Cumberland County, Pennsylvania to confirm the Construction Period Basin, as constructed by Gleim, complied with the approved subdivision plan and stormwater management plan. 35) The Diehl Defendants lost profits since its first plan was rejected by South Middleton Township Supervisors on April 28, 2005 as a result of Additional Defendant Dawood's failure ensure that Additional Defendant Rogele properly constructed the appropriate Construction Period Basin. 36) As a result of Additional Defendant Dawood's breach of contract, stormwater from the Netherby Development allegedly flowed onto adjoining land owned by the Plaintiffs. 37) If the Diehl Defendants are found liable to Plaintiffs, the Additional Defendant Dawood, is solely liable, liable over or is jointly and severally liable with the Diehl Defendants concerning the Plaintiffs' cause of action. WHEREFORE, the Diehl Defendants request judgment against Additional Defendant Dawood in excess of $50,000.00 together with costs and expenses. Respectfully submitted, SAIDIS, FLOWER & LINDSAY l I?Z?-c1 By: Date Ra\l3ert C. Sa.idl PEA Supreme Court ID No. 21458 Dean E. Reynosa, Esquire PA Supreme Court ID No. 80440 Attorney for Defendants 26 West High Street Carlisle, PA 17013 (717) 243-6222 THOMAS R. BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - IN EQUITY o a SUZANNE DIEHL, RAYMOND E. DIEHL and r ' s? GENEVIEVE A. DIEHL, _-'Y ' W TT 'corn Defendants ° ?' NOTICE TO DEFEND You have been sued in co urt. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order 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 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 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5863 CIVIL TERM CIVIL ACTION - IN EQUITY AMENDED COMPLAINT IN EQUITY AND NOW, this 30th day of April 2007, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Amended Complaint against the defendants, DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL: 1. The Plaintiffs, Thomas R. Benjey and Ann E. Benjey, are adult individuals residing at 546 East Springville Road, Carlisle, Pennsylvania 17013. 2. The Defendants, Donald E. Diehl and Suzanne Diehl, are adult individuals residing at 110 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. The Defendants, Raymond E. Diehl and Genevieve A. Diehl, are adult individuals residing at 315 Myers Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3 4. The Defendants have filed a subdivision and land development plan with South Middleton Township which is now known as the Netherby Development. 5. Said lands adjoin the property of the Plaintiffs. 6. Pursuant to their plans, the Defendants submitted stormwater plans to manage the storm water created by the Netherby Development. 7. Beginning in 2004 and continuing into 2007, the Plaintiffs have experienced excessive stormwater on their lands with the alarming development of sinkholes on their land. 8. The Plaintiffs hired Liberty Environmental, Inc. to inspect the site and examine the stormwater plans and implementation of those plans by the Defendants with regard to the Netherby Development. 9. The experts, James P. Cinelli, P.E., and Walter M. Leis, P.G., on behalf of Liberty Environmental, Inc., have prepared a report, a copy of which is marked as Exhibit "A" and is attached to the Complaint in Equity filed on November 10, 2005. 10. The report finds serious deficiencies in the stormwater plans and implementation of those plans by the Defendants. 4 11. The report finds that the Netherby Development significantly adds to the stormwater directed onto the lands of the Plaintiffs, and finds that the sinkholes are caused by the excessive stormwater created by the Netherby project. 12. The Defendants installed a detention pond which was too small for the stormwater generated by the site. The excess stormwater has flowed onto the property of the Plaintiffs causing the sinkholes and damaging the property of the Plaintiffs. 13. The Defendants have taken certain actions based in part on the recommendations of the experts retained and hired by the Plaintiffs and have benefited by their expert report and recommendations. 14. The Plaintiffs remain concerned that despite the remedial actions taken by the Defendants that water in excess of the predevelopment rates will continue to flow from the Netherby Subdivision onto the property of the Plaintiffs. 15. The Plaintiffs seek the following relief. A. Injunctive relief by the Court which orders the Defendants to correct and repair the sinkholes created on the Plaintiffs' property at the Defendants' expense. B. That the Defendants be directed to install a new storm sewer line which conveys the stormwater flow beyond the Plaintiffs' property. C. Take additional remedial actions on the Netherby site to increase the amount of water detained on the property. 5 D. Repair and correct any sinkholes which have developed on the lands of the Plaintiffs and commit to repairing any new sinkholes which are created on the lands of the Plaintiffs. E. Reasonable expert costs and legal fees and expenses of the Plaintiffs for this action as well as time required to implement the above remedies. F. The Defendants must be required to keep the stormwater runoff for the Netherby Subdivision to its predevelopment rate of runoff. WHEREFORE, the Plaintiffs, Thomas R. Benjey and Ann E. Benjey, seek relief as set forth above in addition to any other remedies which the Court deems appropriate in this case. Respectfully submitted, IRWIN & McKNIGHT By: ar us A. Mc ight, III, Esquire est Pomfre Street C lisle. Penns vania 17013 (717)'249-2-3'53 Supreme Court I.D. No. 25476 Date: April 30, 2007 Attorney for plaintiffs 6 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. THOMAS R BENJEY Date: April 30, 2007 6 THOMAS BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN BENJEY, his wife, Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 5863 CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - . IN EQUITY Defendant CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Suzanne C. Hixenbaugh, Esq. Saidis Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN & McKNIGHT By: a cus A. cKnight, III, Esquire 60 est Pomf t Street ar isle. PA 013 (717T2ZT--2353 Supreme Court I.D. No. 25476 Date: April 30, 2007 7 3630-FM Wt10090. Rev.412000 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION SOOSIA v9A Ct.1,?.",' le, BUREAU of WATER QUALITY PROTECTION- Report No.f ARTRUST UARANCEINSPEC- PO --REPORPffit LIAO- tn?SlJN: r= z:_ .''.? 11 , ?? -? ;?rSt" i• ,?•r= alai+' :W gonaiitifnzJ ai:i.[;:"?e'' l#I?ii :iS 93Fifs.LrR) 21 ftf3Sr9 3!!4 } qrfi. airs 'n-t ieQ Inamibea bns nc, {?_m3 ,:_QT ia1g1:.13 ;c sls'rTl sge?t o!11 Datey-? ?iGl r}aiis sieb A doidw ,toi7tzic) ns?i#sv?s?riaC yfinue...isao! snit ,fl 9sy IICI - 7A "gig. ° t:'? ?.:•i .?tNA, 0: ?#r1'asvni .' t39$ 11U Z! , iOa Ic'?i` '?r!?£lnww;"._ :,loo tta ,u. a_r.+irw-Zaw Project name '?e?l^!? g! ?Jr It..? ! r ?rc•s :anz;lgM cTo?tal?Rtajectiareaiias s3rtA tt{ ib P IT-116t titi?S.'S-eidt no-belon need.-fpmrl _?;• r , n eG - eti cn :u ws" siu+i?ana C? n r e ?? L4ocation = L}t'? • U-44 _.,.:-.?_,..---.,....,..,,a.E.a„•?.1.L,?„<,6i't•. ?r'??-??rs; i.moifiznaits ivsanrl3??fir?:noilsrrrti"?rtna:nsffiineort?'ci:}Nw='?,is.??'• TO ?1`779r?7}'i8g5Ld :Tif ,•.... J.? Ja)1G't?1[ s [ti?u. tJirarr m,n ,.. .......,... .. ._ ,--•--..__.._..---T - -: ..,..., IZeCe Vl?tg;WateC(S?. nr ri = *?+r, `{-?`L 4 °61? si't Io P-bap.?l'W`g e$l9Ka. ;1 .,,9i it3ff!!5(39LVfi? of cru ,eadjiantsq ilvia ni veb. ISq: f?Ot},ii i ir.. t 'qts ,.off zsbi?oig ]lj ?i i;uG, Resiiolltsible parEji"'.f_?sxlr?c' ,E:r::I t. v (name & address) G - y1 S? ri(;i?.' .T,?:. 3'+ sn] r ,Cs L dfu'165.r}{( ?n 3e -5a. ?s df,14ri? 3150 :.1 . t G ( c l` ti 4? ri=le??J <, ,;. ,+r_ -in i ncij-)v. igr-qi mail y iim mmi =fictmi --io try-gig nt benyr,4sb Phone Weather conditions V- ?I j Time of inspection ? y Site Representative (name & title . Inspector R .? I Type of inspection (check only one) Routine complete ? . Routine partial ? Site Description & Observations continuedA Permit and Plan Requirements Type of Activity (check as many as appropriate) Y N Written Erosion & Sediment Control Plan required. ? Pub. Road Constr./Malnt. (PRC) ? Pvt.,Road/Residence (PRRS).•. ? ?? Erosion & Sediment Control Plan requested- Res., Subdivision (RSBD) ? Comm./Induct. Dev. (CMIN),;• > ? E & S Control Permit required ? Govmt Facilities (GOV) ? Recreation Facilities (RECF) .: =', . ? NPDES Permit required ? Utilities Facilities (UTL) [3 Agricul. Activities {AGA) '' Phased Constr. Non-Phased Constr. ? SewerM/ater Systems (SWS) ? OIVGas Development (OGD)-: ,; - • i Permit # I? d3 A i - 03 6101 f El , Remediation/Restoration (RRES) ? -- Silviculture (SILV) Page 1 ofa ?y ST'?i 1 Photographs taken Yes ? No ? Follow-up ? Complaint Final ? J :3630-FtJ! WQOD90a Rev: a?2ooD .• .. ': ,-• .. ;R-epo?rt•?h[o. •? T' _ •?•...'•:,??.. . COMMONWEALTH Ot= PENNSYUVANIA:.' ?`' S !y'• A-:':E * ?` r_.. :'• J??? "?91'? DEPARTMENT•OF'ENVIRONMENTAL• PROTECTION'•.c: • ..:.`;'•`::.''.' •? L.C" !•• ?"P C' ?. ? •. ?c? 13UREAU OF WATER QUALJ GY"PROTECTION 'i';- ! '? .. } DISTURBANCE iirISP?ECTIOK REPO EARTH ^v. T. vr• Inspection Findings (check as many as appropriate) • Reference a. No violations observed at this time: <" - b. Failure to develop a written Erosion and Sediment Control Plan: _ :. ?.(1.02.4)...: ;:.;•.';;.?- • .. .i. ?.^ f .. _, .. '• •.j . - n• 7:Y='.+; -,mow![ i i . C. Failure to have an Erosion and Sediment Control Plan available ori.site:" "``" - • • - . _ • .(102.4 • ,? :,.r?" • . d. Failure to submit Erosion and Sediment Control i?lan•as•reqnested:: - ,• .. '? []}••.; .??:.,=?;... e. Failure to implement effective Best Management, Practices-. (102.4).: f. Failure to maintain effective Best Management Practices: (102.4.)..., g. Failure to use Special Proteatibn Best•Management Practices'forbischardes to Hidlr ? (102:4}• . Quality or Exceptional Value, Waters: h. Failure to obtain an NPDES Permit for Stormwater Discharges Associated With. a ? (102.5) Construction Activity: i. Failure to obtain an Erosion and. Sediment Control Permit: ? (102-5) j, Failure to demonstrate that alternative Best Management'Practices achieve regulatory ? (102.11) standards: k. Failure to permanently stabilize the earth disturbance site: ? (102.22) : I.- Failure of earth disturbance activities to comply with permit conditions: -(402 CSL) m. Failure to prevent sediment or other pollutant discharge into waters of the ? (401 CSL) Commonwealth: n. Site conditions present a potential-for pollution to waters of the Commonwealth: ? (402 CSL) o. Other (describe): Inspection of-this project has revealed site conditions which constitute violations of 25 Pa. Code Chapters J 92 and/or 1.02 and the Clean Streams Law, the act of June 22, 1937, P.L. 1987, 36 P.S. §691.1 et seq. Additional information regarding these violations can be found on the back of this report Compliance Assistance Measures f r fV dJ? J ^'?t? Y r1 U vi r? ?!C ! l: / ?^ L -L71- f?? ( - ? corznnuea t_.1? _. Follow-up Inspection will occur on or about (date).. fig! - a? al yl? - (Signature of Site Representative), (Date) (inspector's Signs a } (Date) The Site Representatives' signature acknowledges that they have read°the report and received"a c and that they were given an opportunity.. to discuss it with the inspector. The signature does not necessarily mean the. signee agrees with the report: • . ° Page.2 of r , i 3630-FM-'WQOM 5198 '. D9pi11fT1etllA( Envimomentat P?wtto? . EARTH DISTURBANCE INSPECT IQN REPORT ova _ - { ' Project:. V4 17 _ 7?' Permit No_: .......,,?.,:.. i atement of Site -Conditions ` t.w I'l. YL? 1 4, rm tV lf? I Z?-l fW-Al-? ' USrn o i S •.., .. ..qn:t Tww s •rN ??....5?:P'.?..ViL?'iY".4•'•L'..e'Y.fsM. ?54••iC?•. •..1?!.7..`'?.'r.. : rrsa :?r7i.:. AaoG ?x , r CJ C(' ?' (' T 7 P Ill llr /1 ! f S I? ?l • . V M 1 ' f V r r"7 - a, ... y - 4 Page of FM1- 7QDOSO-FMV.-472D0 PENNSYLVANIA uJ? DEPARTMENT OF ENVIRONMENTAL PROTECTION 00OZ-4 vsq BUREAU or WATER QUALITY PROTECTION Report No. EARTWDISTURBANCE=INSPE?GTt(DW-REP'OR?;ti:'n- 63?> .?::?. « ire : F:^,?':t(•ii1= ^TsKf4 1Jr '4!? grin '.-t•?.t ? = ?;d rT ;{ ?,f c;? ?;1 r'-n ; a.• Tl;tstr? :y{ •r et , .: a;r'.?; ?? •,.t••p 'r.y ,.- . r=• ?I?,CYi%r3V}?12n ?*- ?a,-;+ ?iriFi :.» :'G : t?"?'71?3G :•r!$ ; "' ';?' "t '?rif`T l 4o?lti7 . M . (. i. iciau 20 t 12 C--, , spe rrGbuiityd ?R_ 4T :4NS ] 2ti}138?1?> . - atoms ma icxiw .•;crr;2.c :'iltilt• rI$?ni? Tnuctt isoa; en± :c ?>fgi .: i.?67 :SD'2'?} is - '?7G:.'f'I".?j: ;;'G8i}'• f f; ! .?".':;`?i!.}-r i"- c' '- `? 1 Ivrz,?}",.,._ - iJilaafJ _,n.f J!!! .iJ1Y] HI 1'a A Project name:?:1? r rrt - , di; ,G?( r+r*i, ??.1? srr .': •7? ?Tota1 ?Eroje areal :Js eoned-cuiztl, Location efi" " ? • ;? ? t [ ? , . rii hsr?' s aJi:t: u J .?i u:aj!ijb-alu_.•: r}^ ai!6•i , cn? e,a ,gusr1: Munici altri' u4.^5 ' + : JlBO iyt;,r,c;}G,J63C 1'v 38?ir?.il nc:}jarrlllirlOO r?9iSiiW'Crt.efi IiIW .1T', 0:','19}116&G9 flit Y? 1 Gf,l Li1.: ;<?t un tisiltl t M101197 i ic;. avt?c uri 1 ism i lia,F eceivlingfw,ater(s) etiT ' , ah. 1, - _ +? •, z w4t ? QbaptertQMdesign ltio poi smnor}fvrr3: r ~s?fW69 trt7' -, s ,a ?q i r}il v rnua ni'oLC,Gfi4 vi c ,av:.lsnsq livi;J Ill ysh 7sq t)t:fi,E1:i cf qu rnt•esb i q R,espon f ' (name & address) . l..:::.l U '• Z , _ I ur LGs ?` h si 4t . ,jai .,_ :T: 3?{; • ?^irieli? vI';r7 : 1-6CT- i b /` [ J/' ©(? _.z ? 5.1072-1105 MR ..t ur? 71t1. 5 .210'r- Phone 1 (?'•r ?.t, .?i? fr f•?•.. .{•:• ?r+} iii?? ,r7fa?..,y.,-r.! .Ir. i ? 'i 't a ?Y . _a- Weather conditions C ?,lpy - ?P 7 Time of Inspection 0 r"\. Site Representative (name & title) iJ Inspector X U, s Type of Inspection (check only one) Photographs taken Yes ? No (] r? Routine complete El • Routine partial [] Follow-up Complaint ? Final ? )_U Site Description & Observations t-7 --Z7 C u J? &v jV? [ Yak O r Vvk DAL r T1 t, k f ? rI r o t ri s , r't S i 1 i C ,.1 t???iw ;? U ,? C cT/ c tr•.? C n c, LL i 3 S 4i. f (? f i r-2 i -r; r s `Li 1_.F',V .l ` ," ?i (??(-? ?",riK`. ?,'• 1;''G? ? ,,', ii" r? Cr'r ? ,! 1`?.'r.? ?? ?-2?`'?V?'1"r ?.5? Y ?'?.'•' !?' I ?> L:.) r r 1 JC''1 ^ Gi V 112 J L•? ? ;? r? I--r.?'?r n•?? ?=.,<'. I? .n ?: c?nG,'??;-c s fir; f ? ? i ? (S ? r 1- Lz% l/ -' Lrr :?:??' c :.: ' ?? /' r'!' itt! ! IBC >• ? l,t f 'Y G r rd's S Ax .,c- Y? Z)q ?..? u f l J / v I A ( b- .) Pi rl,r J I'"2;f L J 1 U ntin ed ? Permit and Plan Requirements Type of Activity (check as many as appropriate) Y •N ? Written Erosion & Sediment Control Plan required ? Pub. Road Constr.iMaint. (PRC) ? Pvt. Road/Residence (PRRS) ? ?? , Erosion & Sediment Control Plan requested Res. Subdivision (RSBD) Q Comm./Indust.. Dev. (CMIN) ? E & S Control Permit required ? Govan. Facilities (GOV) ? Recreation Facilities (RECF) ? - NPDES Permit required ? Utilities Facilities (UTL) ? Agrioul. Activities (AGA) Phased Constr. Non-Phased Constr. .0 Sewer/Water Systems (SWS) ? 0[i/Gas Development (OGD) , Permit ## ? . j - a3 (- 0 D°( ? Remediatian/Restoratian (RRES) ? - Silviculture (SiL\0 t Page -1 of - S?A?'tN r.. :. ?o=Pivt''INQOOSOa Rev. 412000 - Report No. JMAW& COMMONWEALTH OF PENNSYLVANIA . DEPARTMENT OF ENVIRONMENTAL PROTECTION BUREAU OF WATER QUALITY PROTECTION' (?J EARTH DISTURBANCE. INSPECTION. REPORT 4 ?_ =;. Inspection Findings (check as many as, appropriate) .. Reference':.'' r' a. No violations observed at this time: ? (N/A)'` b. Failure to develop a written Erosion and Sediment Control Plan: ? (102.4) C. Failure to have an Erosion and Sediment Control Plan available on site: rrt,'" ? (1.02.4) d. Failure to submit Erosion and' Sediment Control Plan as: requested:. ? .(102.1)' e. Failure to implement effective Best. Management Practices: (102.4) " f. Failure to maintain effective Best Management Practices: 4(102'.4) g. Failure to use Special- Protection Best Management Practices for, discharges to. Hig,;? :??Quality?orEXceptionafrValde t7Cl!k&s:''': In. Failure to obtain an NPDES I'el=mit foF Stormwater Discharges Associated .With- a ? (102.5) Construction Activity: I. Failure to obtain an Erosion and Sediment Control Permit: ? (102.5) - j. Failure to demonstrate that alternative Best Management Practices achieve regulatory ? (102.11) standards: k. Failure to permanently stabilize the earth disturbance site: ? (10222) 1. Failure of earth disturbance activities to comply with .permit conditions: (402 CSI.). 'm. Failure to prevent sediment or other pollutant discharge into waters of the ? (401 CSL) Commonwealth: n. Site conditions present a potential for pollution to waters of the Commonwealth: (402 CSL) 0. Other (describe): r Inspection of this project has revealed site conditions which constitute violations of 25 Pa. Code Chapters 92 and/or 102 and the Clean Streams Law; the Act of June 22, 1937, P.L. 1987; 35 P.S. §691.1 et seq. Additional information regarding, these violations can be found on the back of this report Compliance Assistance'Measures = 41- ? t. C n G . r (a. t" ' r1?1 continued El Follow-up Inspection will occur on or about (date) C'.ir`e, (Signature of Site Representative) (Date) (1 spector's Sig urea)...: - (Date) . The Site Representatives' signature acknowledges that they have read the report and receiv and'that they were given an opportunity to discuss it with the inspector. The signature does not necessarily mean the signee agrees with the-report. VERIFICATION I, Donald E. Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November d , 2007 Donald E. Diehl VERIFICATION I, Suzanne Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November aY , 2007 VERIFICATION I, Genevieve A. Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November `d , 2007 A rg S -41 0 49 Geneviev A. Diehl VERIFICATION I, Raymond E. Diehl, hereby verify that the statements made in the foregoing Additional Defendant Complaint Against Dawood Engineering, Inc. and Rogele, Inc., are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: November J?K , 2007 ? Ra and E. Diehl CERTIFICATE OF SERVICE 01 AND NOW, November, , 2007, I, DEAN E. REYNOSA, Esquire, of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I did serve a true and correct copy of the foregoing Additional Defendant Complaint upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs 60 West Pomfret Street Carlisle, PA 17013 an E. Re osa, Esquire Supreme Coin I.D. # 80440 2109 Market Street Camp Hill, Pa 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 Attorney for Defendants THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5863 CIVIL TERM CIVIL ACTION - LAW ANSWER TO NEW MATTER AND NOW, this 12th day of December, 2007, comes the Plaintiffs, THOMAS R. BENJEY and ANN E. BENJEY, by their attorneys, Irwin & McKnight, and makes the following Answer to New Matter against the defendants, DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL: 16. The averment of facts contained in paragraph one (1) through fifteen (15) of the Plaintiffs' Amended Complaint in Equity are incorporated by reference and made a part of this Answer to New Matter. 17. The averment of facts contained in paragraph seventeen (17) of the New Matter are conclusions of law to which no response is required. They are therefore denied. 18. The averment of facts contained in paragraph eighteen (18) of the New Matter are admitted. 19. The averment of facts contained in paragraph one nineteen (19) of the New Matter are admitted. 20. The averment of facts contained in paragraph twenty (20) of the New Matter are specifically denied. On the contrary, the existing stormwater cannot be adequately managed by the basin constructed by the Defendants. As construction proceeds, the problem will worsen causing additional stormwater problems and sinkholes on the property of the Plaintiffs. 21. The averment of facts contained in paragraph twenty-one (21) of the New Matter are admitted. 22. The averment of facts contained in paragraph twenty-two (22) of the New Matter are conclusions to which an answer is not required. They are therefore denied. WHEREFORE, the Plaintiffs respectfully requests that judgment be entered by this Court against the Defendants requiring that the stormwater problems be corrected and the plan to be revised together with all relief deemed appropriate including legal fees and court costs. Respectfully submitted, IRWIN & By: Marcus At McKnight,'Hl, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Date: December 10, 2007 Supreme Court I.D. No. 25476 Attorney for plaintiffs 2 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and us in the preprration of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. THOMAS R. BENJE ANN E. BENJEY C/ Y Date: Id- 10 0-'00'7 THOMAS BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN BENJEY, his wife, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005- CIVIL TERM DONALD E. DIEHL, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Robert C. Saidis, Esq. Saidis Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN & McKNIGHT By: Marcus A.`Mc ni II Esquire 60 West Pomfret Str et Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: December 13, 2007 4 Ica THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL, and GENEVIEVE A. DIEHL, Defendants V. DAWOOD ENGINEERING, INC and ROGELE, INC., Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned in the above-captioned matter on behalf of the Additional Defendant Dawood Engineering, Inc. only. Respectfully submitted, Dated: December 12, 2007 PECHT & ASSOCIATES, PC By: kZ41 Wayne M. Pecht, Esquire PA Supreme Court ID #38904 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9808 phone 717-691-2070 fax Attorney for Additional Defendant Dawood Engineering, Inc. ? V (?'?/ Tf ?' "?"! ???51 ?. ?F ??..yy..?? +'t ` . y #i ???:? ?sr I? Y ? 1 ?4. ?..„ THOMAS R. BENJEY and ANN E. BENJEY, his wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL, and GENEVIEVE A. DIEHL, NO. 2005-5863 CIVIL TERM CIVIL ACTION - EQUITY Defendants V. DAWOOD ENGINEERING, INC and ROGELE, INC., Additional Defendants ACCEPTANCE OF SERVICE I, Wayne M. Pecht, Esquire, hereby accept service of the Additional Defendant Complaint in this matter on behalf of Additional Defendant Dawood Engineering, Inc. only. PECHT & ASSOCIATES, PC Dated: December 12. 2007 By: IV A Wayne M. Pecht, Esquire PA Supreme Court ID #38904 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9808 phone 717-691-2070 fax Attorney for Additional Defendant Dawood Engineering, Inc. -ri fi r - rri rrtm "' . a? m CERTIFICATE OF SERVICE 1 AND NOW, December, , 2007, I, DEAN E. REYNOSA, Esquire, of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I did serve a true and correct copy of the foregoing Acceptance of Service upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Attorney for Plaintiffs 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs Mr. Lawrence J. Neary, Esquire 108-112 Walnut Street Harrisburg, PA 17101-1609 Attorney for Defendant Rogele Mr. Wayne M. Pecht, Esquire 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055-4917 Attorney for Defendant Dawood f De #T. Re3amga, Esquire Suoreme Court I.D. # 80440 2109 Market Street Camp Hill, Pa 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 Attorney for Defendants { .. 5"' l C-) SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-05863 P COMMONWE,A15TH OF PENNSYLVANIA : COUNTY OF CUMBERLAND BENJEY THOMAS R ET AL VS DIEHL DONALD E ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT D/%/' T:IT V TTTO to wit: but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT - EQUITY County, Pennsylvania, to On December 28th , 2007 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe3z.&A-3-? Docketing 18.00 Out of County 9.00 ''?!,r!.? ' Surcharge 10.00 1. Thomas K i Dep Dauphin County 29.25 Sheriff of Cumberland County Postage 2.06 68.31 ? 11e31PY ?.. 12/28/2007 SAIDIS FLOWER LINDSAY Sworn and subscribe to before me this day of in his bailiwick. He therefore A. D. In The Court of Common ]Pleas of Cumberland County, Pennsylvania -Thdmas R. Benjey et al vs. Donald E. Diehl et al SERVE: Rogele Inc No. 05-5863 civil Now, December 14, 2007. , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original the contents thereof So answers, Sheriff of Sworn and subscribed before me this day of , 20 20 , at o'clock M. served the COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA f (ptlittaf Mary Jane Snyyder Real Estate Depu William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin THOMAS R BENJEY ET AL VS ROGELE INC Sheriffs Return No. 2007-T-1755 OTHER COUNTY NO. 05-5863 And now: DECEMBER 20, 2007 at 11:17:00 AM served the within NOTICE & COMPLAINT upon ROGELE INC by personally handing to 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 1025 SOUTH 21 ST STREET HARRISBURG PA 17105 SERVED CANDY NEWCOMBER Sworn and subscribed to before me this 21 ST day of December, 2007 A7??? L NOTARIAL SEAL Y JANE SNYDER, Notary Publi Highspire, Dauphin County Commission Expires Set 1 2010 M So Answers, /(:L-- Sheriff County, Pa. By Deputy Sheriff Deputy: T QUIGLEY Sheriffs Costs: $29.25 12/19/2007 F:\F1LES\Clients\12303 Diehl\12303.13 Benjey\12303.13.pra2 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants V. DAWOOD ENGINEERING, INC., and ROGELE, INC., Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5863 o 2 _ CIVIL ACTION - LAW PRAECIPE TO WITHDRAW AND ENTER APPEARANCE To the Prothonotary: Please withdraw the appearance of SAIDIS, FLOWER & LINDSAY as attorneys for the Defendants Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl and Genevieve A. Diehl. SAI Date: Obl3110 By: Please enter the appearance of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, as attorneys for the Defendants Donald E. Diehl, Suzanne Diehl, Raymond E. Diehl and Genevieve A. Diehl. MARTSON LAW OFFICES Date: /--:? /- /0 By: ( S /?- Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 I.D',No. 21458 26 West High Street Carlisle, PA 17013 (717) 243-6222 cA-fiT ~- }._ Tea.. -, - -; - , r,~ PRAECIPE FOR LISTING CASE FOR TRIAL ~o~o I~~~ ~~o ,~f~~ ~= 38 (Must be typewritten and submitted in triplicate}l P~ 3,. ~$ TO THE PROTHONOTARY OF CUMBERLAND COUNTY cuPl"`-~~ - ~- `.1~'~~f Please list the following case: ^ for JURY trial at the next term of civil court. ® for trial without a jury. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in fuln (check one) THOMAS R. BENJEY and ANN E. BENJEY, ^ Civil Action -Law ^ Appeal from arbitration ® IN EOI7ITY (other) (Plaintiff vs: DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, (Defendant) vs. DAWOOD ENGINEERING, INC. and ROGELE, INC., The trial list will be called on AIIGIIST 31, 2010 sari Trials commence on SEP'TF1'18ER 20, 2010 Pretrials will be held on SBPTEL~ER *, 2010 (Briefs are due S days before pretrials No. 2005-5863 CIVIL Tenn CIVIL ACTION - IN EQUITY (Additional Defendants) Indicate the attorney who will try case for the party who files this praecipe: MARCUS A. McRNIGHT, III, ESQUIRE Indicate trial counsel for other parties if known: CHRISTOPHER E. RICE, ESQ., MARTSON LAW OFFICE This case is ready for trial. Signed: Date: JULY 29, 2010 Print Name: MARCUS A. Mc1ZNIGHT, III Attorney for: PLAINTIFF s;;~d6 ~~ a~1. ~~~/6 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs V. DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants V. DAWOOD ENGINEERING, INC., and ROGELE, INC., Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 05-5863 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of August, 2010, a pretrial conference in the above matter is scheduled for Thursday, October 14, 2010, at 2:00 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. BY THE COURT, 7 ," Marcus A. McKnight, Esq.. 60 West Pomfret Street Carlisle, PA 17013 /Attorney for Plaintiffs Christopher E. Rice, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants and Additional Defendants :rc Co p t-ci- g/ao/to t:? J,'-Wesley Oler, k, -4 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs v DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Defendants v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW c d 0 ""+ -~ ~ cx~ rn o o -t i.,.j -±~ ~ rn ~ a - r n c ~ *~ ~ r ~ w ~~ ~ t-~ ~ ~ ~ c ~ ~~ ca ° i r ==fi ~ _ ..{ ~ ..,~ cn DAWOOD ENGINEEERING, INC., and ROGELE, INC., Additional Defendants :~ 0.,,05-5863 CIVIL TERM ************ ********************** THOMAS R. BENJEY and IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v CIVIL ACTION - LAW SOUTH MIDDLETON TOWNSHIP, Defendant NO. 05-6805 CIVIL TERM IN RE: PRETRIAL CONFERENCE ORDER OF COURT AND NOW, this 14th day of October, 2010, a conference having been held on this date in the chambers of the undersigned judge in which Plaintiffs, Thomas R. Benjey and Ann E. Benjey were represented by Marcus A. McKnight, III, Esquire, Defendant South Middleton Township was represented by Richard P. Mislitsky, Esquire, Defendants Diehl were represented by Christopher E. Rice, Esquire, and Chris Vanlandingham, Esquire, Additional Defendant Dawood Engineering, Inc., was represented by Wayne M. Pecht, Esquire, and Additional Defendant Rogele, Inc., did not appear (it appearing that notice of the conference was not sent to that Additional Defendant), and pursuant to an agreement reached between counsel who were present at the conference, and it appearing to the Court that neither of the above-captioned cases, which have not yet been consolidated, r, is at issue, both cases are stricken from the trial list. It is understood that in the case of Benjey versus South Middleton Township Defendants' counsel may be filing a motion for summary judgment in the near future. It is also understood that an outstanding motion for consolidation of these two cases is not requested by counsel present at the conference to be immediately adjudicated. By the Court, J. esley Ole Jr., J. Marcus A. McKnight, III, Esquire West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 For Plaintiffs Richard P. Mislitsky, Esquire P.O. Box 1290 Carlisle, PA 17013 For Defendant South Middletown Township Christopher E. Rice, Esquire Chris Vanlandingham, Esquire 10 East High Street Carlisle, PA 17013 For Defendants Diehl Wayne M. Pecht, Esquire 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 For Additional Defendant Dawood Engineering Lawrence J. Neary, Esquire 108-112 Walnut Street Harrisburg, PA 17101-1609 For Additional Defendant Rogele :mae THOMAS R. BENJEY and : IN THE COURT OF COMMON PLEAS OF ANN E. BENJEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 2005-5863 DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and : CIVIL ACTION - LAW GENEVIEVE A. DIEHL, Defendants V . DAWOOD ENGINEERING, INC., and INC., ROGELE , Additional Defendants PRAECIPE TO DISCONTINUE Y TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned action between Plaintiffs and Defendant Donald E. Diehl, Defendant Suzanne Diehl, Defendant Raymond E. Diehl and Defendant Genevieve Diehl (collectively referred to as the "Diehls") settled and discontinued with prejudice. This praecipe shall not affect the action between the Diehls and Additional Defendant Dawood Engineering, Inc. and Additional Defendant Rogele, Inc. Respectfully submitted, HT , III, Esquire 60 /West P mfret Street C ' A 17013 (717) 249-2353 Supreme Court I.D. 25476 Dated: A?I AD 22. Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe to Discontinue was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: VIA HAND DELIVERY Marcus A. McKnight, Esquire IRWIN & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 VIA HAND DELIVERY Christopher E. Rice, Esquire MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 Wayne M. Pecht, Esquire PECHT & ASSOCIATES, P.C. 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Rogele, Inc. 1025 South 21St Street Harrisburg, PA 17105 MARTSON LAW OFFICES -)?) A, By: GL' M Price Ten E st High Street Carlisle, PA 17013 (717) 243-3341 Dated: ,1?(;//