ML20084M917
| ML20084M917 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/16/1983 |
| From: | Locke R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES |
| To: | NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20084M897 | List: |
| References | |
| NUDOCS 8405160210 | |
| Download: ML20084M917 (3) | |
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SUGARM AN & DENWORTH ATTORN EYS AT LAW eustt ses ROBERT J. SUG ARM AN suitt too, Nonts Ausnic AN oustoiNo JOANNE R.OENWORTH 121 SOUTH BROAD STREET iseen pse eees PHILAD ELPHIA. PEN N SYLVANI A 19107 ROBIN T. LOCKC (als) See.Otea ROBERT RAYMOND ELLIOTT, R C.*
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December 16, 1983 Secretary U.S. Nuclear Regulatory Commission Attn: Chinf, Docketing & Servico Branch Washington, D.C.
20555 Re: In the matter of P}lILADELPilIA ELECTRIC COMPANY Docket NO. 50-352-353
Dear Sir:
Enclosed horowith ploaco find the following document for filing:
APPLICATION OF DEL-AWARE UNILIMITED ET AL UNDER
, SECTIO 1 2.206 A copy of this document has boon nerved upon all counsol pursuant to the attached Cortificato of Servico.
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We SUGARM AN & DKNWORTH Af f 0HNCVS AT LAW eveet see i
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JOANNE M.DENWOMf H 128 SOUTH WMOAD sintCT
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Deconbor 16, 1983 s
Mr. Ilarold Donton l
Director l
U.S. Nucloar Regulatory Comminston Wanhington, D.C. 20555 l
Rot In tho mattor of PHILADELPilIA ELECTRIC COMPANY Dockot No. 50-352-353 Dear Mr. Dontont l
Enclosed horowith please find a copy of the APPI,1 CATION OF DEL-AWAHE UNLIMITED ET AL UNDER SECTION 2.206, the original of which has boon forwardod to the Socratary for f111ng.
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
In The Matter of
' PHILADELPHIA ELECTRIC COMPANY :
Docket Nos. 50-352
+
50-353 (Limerick Generating Station, :
Units 1 and 2)
APPLICATION OF DEL-AWARE UNLIMITED ET AL UNDER SECTION 2.206~
f Petitioners hereby renew their request that the staff reopen the construction permits heretofore granted, as well I
i as the interim initial decision of the Licensing Board dated March 8,
1983, regarding supplemental cooling water, and aver as the basis thereof the following:
1.
In its comments on the draft Environmental. Impact Statement Operating License for the proposed project, dated.
j August 15,
- 1983, the US Environmental Protection Agency brought. out the fact that the EIS fails to deal with the i
information that has been developed recently regarding. the -
i adequacy of. water in the Delaware River.
.This.=is the subject which the NRC had committed to cover.in the EIS in i
its letter dated -December 16, 1980 to the ~ Delaware River i
Basin Commission, -- on the basis of which the DRBC approved i
the project- -in ' February, - 1981, without ~ an EIS.
-The staff-letter of-January 5, 1981 ' to ' the. applicant bears outLthis.
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2.
As found by EPA, the failure to complete this commitment, which was the basis of EPA acceeding to the DRBC action, is a serious and fatal defect, and requires rectifi-cation before the operating license can be properly ap-l
- proved, and before the EIS can be finalized.
It also precludes reliance on the DRBC approval as final and bind-ing.
Among'other things, the DRBC itself reserves the right to reopen the docket based on the findings of this Commis-l sion, and that reservation is operational at this time as a result of the Commission's failure to deal with the subject i
3.
Since a source of supplemental cooling water is essential to the operation of
- Limerick, the changed-circumstances which have come into existence in the last few weeks regarding the likelihood of completion of the water diversion project require that an alternative source of-supplemental cooling water be obtained immediately. (infra) 4.
Test fuel load is now apparently being planned for October, 1984, and while supplemental cooling water will not likely be necessary until the Spring of 1985, regulatory processes must be' begun in order to be completed in time for the Limerick need.
5.
Adequate water exists to ~ handle. Limerick's needs at the Blue Marsh Reservoir, _ but although PECO has stated that it will take an alternative source of water--if one is e
l offered to it, it has taken ' no action to. secure the Blue Marsh supply.
Unless this Agency.
requires 'that PECO I-L
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I take ~. such action, PECO will refuse to do so indefinitely, and thereby prejudice the availability of adequate supplemental cooling water.
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6.
The events which have made it likely that PECO will not have the Point Pleasant diversion available in time are especially the Ordinance passed by the Bucks County Commissioners on November 18,
- 1983, in which the Commissioners voted to take over the Point Pleasant project, having previously announced their intention to halt it.
A copy of the Ordinance and the Commissioners' previous announcements (May 18, 1983, September 21, 1983) is attached as Exhibit A.
i 7.
In addition, the staff previously accepted the assurance of the Director of the NWRA in an affidavit, in determining that the NRC need not consider all the primary and secondary consequences of the Point Pleasant diversion as being attributable to Limerick.
That affidavit stated that NWRA would build the project even without PECO.
i-8.
It is now-clear, as a result of the Commissioners' ordinance, that the project.will not be completed without
-the participation of PECO.
Indeed, on November 29, 1983, PECo sued the County and NWRA seeking a mandatory injunction to' compel' construction.
A copy - of PECo's-c'omplaint is l'
attached hereto.as Exhibit B.
Therefore the PECO project:is the operative-cause of all the primary and secondary effects of Limerick,. previously. described 'in Del-AWARE's ~ previous l
Petition and supplemental Petition under.. Section. ' 2. 20 6..
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a Accordingly, based on the new circumstances, that Petition should now be granted.
Since PECO sued the County and NWRA seeking a mandatory injunction to compel its construction, the diversion facilities should now be considered as a facility under Section 103 of the Atomic Energy
- Act, requiring a construction permit.
A copy of the Court's Order is attached hereto as Exhibit C.
9.
In addition, this Commission has never analyzed the physical impacts of the construction of the Point Pleasant project.
On May 21, 1983, there occurred a major rockslide, which caused upwards of one million dollars in damages, and threatens to reoccur.
The draft EIS indicated the potential for hillside collapse after completion of construction, and this condition also will continue.
Furthermore, there has been substantial physical damage to the area from construction, all of which the Licensing. Board refused to consider in the Operating License proceedings.
In the circumstances, reconsideration of the physical impacts on the environment of construction - of the Point Pleasant diversion are required.
10.
In addition to the foregoing, the effects not identified at the construction permit stage on the East Branch of the Perkiomen have been now identified in detailed testimony before the Pennsylvania
.Public Utilities Commission and Environmental Hearing Board.
Copies of these transcripts are available to the staff on request.
Based on this testimony, it is clear that there will be a.significant (4)
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amount of erosion and destruction of stream habitat as a result of the construction of the project.
i Based on all the foregoing, it is respectfully submitted that the NRC should now grant the Section 2.206 petition and reopen the Limerick construction permit proceedings.
Because of the imminence of construction-and decisions by this and other agencies, it is respectfully requested that a decision on this Petition be rendered within 30 days.
Respectfully. submitted, 1
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ROBERT J. SUGARMAN Of Counsel i
SUGARMAN &. DENWORTII 121 S.. Broad Street Suite 510 Philadelphia, PA 19107 (215) 546-0162 i
Dated:
December-16, 1983 185 l
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a CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the fore-going Application of Del-AWARE Unlimited Et Al Under Section 2.206 by mailing a copy of the same to the following persons
'this 8th day of December, 1983.
Christine N. Kohl, Esq., Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Stephen F. Eilperin Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C._20555 Dr. Reginald L.
Gotchy-Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ann Hodgdon, Esquire Benjamin H. Vogler, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Troy B. Conner, Jr. Esquire Conner and Wetterhahn 1747 Pennsylvania Avenue Washington, D.C.
20006 Edward G. Bauer, Esquire Vice President & General Counsel Philadelphia Electric Company 2301 Market Street Philadelphia, PA 19101 Secretary U.S. Nuclear Regulatory Commission Attn.:
Chief, Docketing & Service Branch Washington, DC 20555 Atomic Safety and Licensing Appeal Board-U.S. Nuclear Regulatory Commission Washington, DC 20555 Charles W. Elliott, Esquire Brose and Poswistilo 1101 Building lith & Northampton Streets Easton, PA 18042 I
Martha W.
Bush, Esquire Kathryn S. Lewis, Esquire 1500 Municipal Service Building 15th and J. F. Kennedy Blvd.
Philadelphia, PA 19107 Jay M. Gutierrez, Esquire U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406
~h Robert J. Sugarden
'N Dated: December 8, 1983 i
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( A a$. f. FON ASH May 18, 1983 Neshaminy Water Resources Authority 2675 Old York Road P.
O. Box 378 Jamison, PA 18929 Attention:
Mr. Joseph E. Johnson, Chairman
Dear Mr. Johnson:
Please be advised that we, the Bucks County Commissioners, hereby withdraw._ approval of contracts for the Point Pleasant ?tmping Station and Ccmbined Transmission
~ Main heretofore executed between Neshaminy Water Resources Authority and Mergentime Corpo: ation, Wert: 7ngineering Company, Reiter Construction Company, Inc. and Philips Brothers Electrical Contractors, Inc.
This action is taken pursuant to-Article I, Section 1.02 of the Agreement and Lease between the N.W.R.A.
and the County.
We are demanding that the. Authority immediately terminate construction at the site, and to terminate the Authority's contractual obligations _ involving the Point Pleasant ?caping-Station and Combined Transmission Main.
We are fu-ther directing that the Authority take appropriate legal steps-to amend the Trust ;Indentu-e, Ag: eement and Lease to eliminate the. Point Pleasant Pumping Statica and Combined T:ansmission Main from the " Project".
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Also, please be advised that we'are notifying the Montgomery County Commissioners that we will not be fulfilling i
our contract with Montgomery County to supply water from the i
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Neshaminy Water Resources Authority May 18, 1983
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?oint Pleasant Pumping Station.
We are also by separate communication notifying Philadelphia Electric Company that we are terminating our contract with them to operate the Point Pleasant Pumping Station.
Very truly yours, Jn l-,_
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Elaine P. Zettiyc Chairman
-,/- d Wo n Andrew L. Warren e
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'f ORD* NANCE NO. 59 AN ORDINANCE SIGNIFYING TiiE INTENTIONS OF BUCl(S COUNTY TO ACQUIRE Tile PROJECTS OF THE NESHAMINY WATER RESOURCES AUTi!ORITY UNDER Tile PROVISIONS OF Tl!E MUNICIPALITY AUTHORITIES ACT OF 1945.
Br. IT ENACTED AND ORDAINED by the Board of County Commissioners of Bucks Cornty, Pennsylvania. AND IT IS 11EREBY ENACTED AND ORDAINED by the authcrity of the Doard of Commissioners as follows:
Section 1.
On June 13, 1966, by Ordinance No.11 of Bucks County, the Board of Commissioners of Bucks County, Pennsylvania established a municipal authority under the provisions of the Municipality Authorities Act of 1945 (Act of May 2,1945, P.L.
382, as amended) known as the Neshaminy Water Resources Authority.
Section 2.
The initial projects which the Neshaminy Water Resources Authority v:as authorized to undertake included: to acquire, build, construct, improve, maintain and operste, own, lease, either in the capacity of lessor or lessee, flood control projects, low head darns, water works, water supply works, water distribution system, lakes and appurtenant parks, recreation grounds and faellities.
Section 3.
The Neshaminy Water Resources.'.uthority was originally created by the Bucks County Commissioners in part because of then applicable limits on long-
. term borrowing by a County, which limits could be lawfully evaded by the creation of a municipal authority.
Section 4.
Since the time when the Neshaminy Water Resources Authority was organized, changes in applicable law, including the Local Government Unit Debt Act, have occurred which make any borrowings of the Neshaminy Water Resources Authority a part of the stated and acknowledged debt of the County of Bucks, thereby eliminating one of the original purposes for which the Neshaminy Water Resources Authority was created.
Section 5.
The Neshaminy Water Resources Authority has estabHshed as its first i
project the constreetion and acquisition of facilities for the control of floods. develop-ment of water resources, the conservation of soll, and assistance to recreation, !ncluding the construction and acquisition of reservoirs for the purposes of water supply and l
ficod control and the construction of one or more intakes and pumping stations to take l
water from the Delaware River, and the construction of parks and recreational facilities udjoining certain of the reseryoles. The project, subsequent to its initial design has been expanded to include construction of a water treatment plant and certain pumping f,icilities for treated water.
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Section 6.
The project, as undertaken by the Neshaminy Water Resources Authority, is either completed or contracts have been awarded which are a substantial step toward completion of the project.
Section 7.
Bucks County now desires to acquire the project, pursuant to Section 321(A) of the Municipality Authorities Act.
Section 8.
The reasons for Bucks County'e intention to acquire the project
'nclude the results of a referendum question on the May 17, 1983 primary ballot, the concerns of the Bucks County Commissioners over the terms of certain contracts which require the issuance of bonded debt for a longer term than is thought possible or 1
practical, and their desire to have direct control over the terms and financial impact of the project.
Section 9.
Bucks County assumes all of the obligations, contracts, assets and liabilitics of the Neshaminy Water Resources Authority with respect to the project, and the proper officers of the County are authorized and directed to take such actions and execute such documents as are necessary to assume all obligations incurred in connection with the project.
Section 10. A'11 bonded indebtedness previously incu'tred by the Neshaminy Water Resources Authority shall, upon adoption of this Ordinance, be secured by t'he full faith and credit of the County of Bucks.
Section !!. All ordinances and resolutions, or parts thereof, inconsistent herewith are hereby repealed or rescinded.
DULY PRESENTED AND ENACTED at a meeting of the Board of Commissioners o! the County of Bucks, Pennsylvania, held the day of 1983.
Attest:
Elaine P. ZetticR, Chairman County Chief Clerk -
" Andrew L. Warren (SEAL)
Carl F. Fonash Board of County Commissioners 4
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COUNTY C j,@b OF B 'U C KS
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May 18, 1983 4
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.' I1.f; /6 Montgomery County Com:nissioners MontSomery County Court House Norristown, PA 19401 Attention:
Mr. Paul 3.
Bartle, Chairman
Dear Mr. Bartle:
I Please be advised that we, the Bucks County Co.uissioners, hereby terninate the County's obligation under the Neshaminy Water Supply System Water Sales 1,greement dated January 14, 1981 to supply water to your County from the Point Pleasant Pumping Station.
Very truly yours,
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CEairman Elaine ?.
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%ndrew L. Warren
.ce:
Ms. Rita C.
3anning Mr. Allen Meyers Mr. A.W. Morfin Frederic M. Went:t, E,q.
/Are Harry Sorchen, Jr., - Nor:h Penn Water Au:hority
.,[Er. Peter 1.nens - North Wales Wcter Authority Mr. Robert A. Flowen - Nesh=rniny Woler Resources Authority B3
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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY DANIEL J.
- SULLIVAN, Plaintiff, anc PHILADELPHIA ELECTRIC COMPANY, Plaintiff-Intervenor, v.
COUNTY OF BUCKS, et al.,
No. 83-8358 Defendants.
COMPLAINT IN EQUITY.0F PLAINTIFF-INTERVENOR PHILADELPHIA ELECTRIC COMPANY 1.
Plaintiff-Intervenor. Philadelphia Elect'ric
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Company-("PECO") is a corporation organi::ed. and existing under the laws of' Pennsylvania and has.its principal place of business at 2301 Market Street, Philadelphia, Pennsylvania 19101.
i 2.
Defendant County of Bucks
(" Bucks County") is a i
political subdivision of_the Commonwealth of Pennsylvania.
.3.
On or about June 13, 1966, Bucks County established, by ordinance of its Commissioners, the Neshaminy Water Resources Authority ("NtGA"), pursuant-to the Municipality Authorities Act of 1945 ("the-Act"), 53 P.S.
SS 301-322.
EXHIBIT.B
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4.
On or about February 12, 1980, PECO and NWRA i
entered into a written agreement, entitled Agreement Between the Neshaminy Water Resources Authority and Philadelphia Electric Company for the Construction and Operation of Water Supply Facilities ("the Construction and Operation Agreement").
This Agreement was approved in writing by Bucks County.
A copy of the Construction and Operation Agreement is attached as Exhibit F to the Complaint filed by plaintiff Daniel J. Sullivan in this action and is incorporated herein by reference.
5.
The Construction and Operation Agreement provides, inter alia, for.NWRA to construct (or cause to be constructed) and to operate certain water facilities adjacent to the Delaware River at Point Pleasant, Bucks County, Pennsylvania ("the Project").
The Project is a component of the Neshaminy Water Supply System, which is the result of two decades of planning and review by government authocities _and is designed to serve various water needs in Bucks and Montgomery Counties, including public water for Central Bucks County and Central Montgomery County, Pennsylvania.
The Project is also designed and intended to provide supplemental cooling water for PECO's electric generating plant presently under construction at Limerick, Pennsylvania.
The Construction and Operation Agreement provides that the Project shall supply water sufficient to meet-PECO's needs for the Limerick plant,. as set forth in the Agreement, in an amount up to 46 million gallons per day, as needed.
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s 6.
The Project constitutes an essential component for supplying supplemental cooling water for P3CO's Limerick station.
The Project, or various aspects thereof, including the present design of the supplemental cooling wa ter system, have been the subject of approvals and permits issued by or pending before various federal and state agencies, including the Nuclear Regulatory Commission, the Army Corps of Engineers, the Delaware River Basin Commission, the Department of Environmental Resources, and the Public Utility Commission.
7.
To date, PECO has invested approximately 2.7 billion dollars in the Limerick facility.
8.
The Construction and Operation Agreement provides, in paragraph 16, that the Agreement.shall not be assigned by NWRA to Bucks County except to the extent necessary to permit Bucks County to operate and maintain the Project, and Bucks County, by its Commissioners, signified its approval of the Agreement and accepted its terms and conditions by joining in its execution.
9.
On or about January 14, 1981, Bucks County, NURA, and Montgomery County entered into a written agreement, entitled Neshaminy Water Supply System - Wa ter Sales Agreement - Sucks and Montgomery Counties ("the Water Sales Agreement").
A copy of the Water Sales Agreement is attached as Exhibit E to the Complaint filed by plaintif f Daniel J.
Sullivan in this action and is incorporated herein by reference.
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C 10.
The Water Sales Agreement provides, inter alia, that Bucks County shall construct, or cause to be constructed by NWRA, certain water facilities, including the Project, 11.
The Water Sales Agreement specifically recognizes the Construction and Operation Agreement and PECO's rights thereunder, and it contains provisions to safeguard PEco's rights under the Construction and Operation Agreement.
12.
Pursuant to the two Agreements, NWRA entered into several contracts for construction of the' Pro ject.
The aggregate amount of these construction contracts is in excess of 11 million dollars.
Cons truction work on the Project commenced on or about January 10, 1983, and is in progress.
13.
On or about May 18, 1983, Bucks County, by its-Commissioners, sent letters to NWRA, Montgomery County, and PECO, copies of which are attached hereto as Exhibits A, B, and C,
respectively, and incorporated herein by reference.
14.
By these letters, Bucks County purported to terminate and abrogate its obligations under the Construction and Operation Agreement and the Water Sales Agreement.
It further demanded that NWRA terminate construction of the Pro ject and terminate NWRA's obligations under the two agreements, and it purported to withdraw its approval of NWRA's various construction contracts for the Project.
15.
On or about May 25, 1983, the Bucks County Commissioner s unanimously passed a Resolution purporting _ to terminate Bucks County's participation in the Project and to 4_
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terminate its obligations under the Water Sales Agreement and the Construction and Operation Agreement.
16.
On or about June 20, 1983, Bucks County commenced an action in this Court against NWRA (No. 83-04408), seeking a preliminary and permanent injunction against all further construction of the Project.
Preliminary relief was denied by the Court on July 14, 1983.
17.
Since May 1983, the Bucks County Commissioners 3
i have repeatedly made public declarations, including sworn depositions by a majority of the Commissioners in this action, of their intention to prevent further construction and completion of the Project, and to. impose an immediate sixty-day morato rium on all construction, pending-further~ steps to terminate the Project.
18.
On or about November 18, 1983, the Bucks County Commissioners _ passed Ordinance No. 59 of Bucks County.
A copy of Ordinance No. 59 is attached as Exhibit G to the Complaint filed by plaintiff Daniel J.
Sullivan in this action.
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19.
In Ordinance No.- 59, Bucks' County _ purports to:
(a) acquire the-Project from NWRA, pursuant to S 18(A) of the Act, 53 P.A.-S 321(A) (erroneously cited in the Ordinance as S 321(A) of the Act); and (b) assume all the obligations and contracts of.
NWRA and respect-to the Project.
20.
Pursuant to S 18(A) of the Act, Bucks County cannot acquire-the Project from NWRA unless, inter alia, it
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21.
Despite Bucks County's purported assumption of all obligations with respect to the Project, Bucks County and its Commissioners, by their public declarations, have made evident that they in fact have no intention of fulfilling and.
performing the' obligations of NWRA under the various contracts relating to the Project, including the Construction and Operation Agreement and the Water. Sales Agreement, but rather have adopted Ordinance No. 59 in furtherance of a scheme, plan, and program to terminate the Project.
22..
Bucks Coun ty, through its Commissioners, passed Ordinance No. 59 with the specific purpose and intent of preventing and -interfering with the perf ormance of the Construction and Operation Agreement and the Water Sales Agreement, and thereby impeding and obstructing PECO's - rights under those Agreements.
2 3.-
The halting or-cancellation of the Project
.ald cause irreparable harm to PECO.
There are noffeasible alternative sources of cooling water available that would 4
permit the operation of PECO's Limer ick ~ plant' to commence without substantia 1'-delays.
Even if an alternative sourceLcan-be found, it would be subject to: lengthy. delay for design 'and
~
-lengthy proceedings for approvals.by various governmental authorities, including the Delaware: River Basin _ Commission,1the
' Nuclear Regulatory Commission, and the Department of Environmental 1 Resources.._
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24.
The Project is a unique work, the loss of which to PECO would not be wholly compensable in damages.
25.
A moratorium on construction would irreparably delay completion of the Project because of permit limitations on when certain phases of the construction can be carried on.
26.
Even if the Project is eventually constructed or if an alternative source of cooling water ultimately becomes available, PECO will have suffered substantial damage by reason of the delay in the operation of PECO's Limerick plant caused by '
ks County.
27 A year of delay will add approximately 400 million dollars to the cost of the Limerick facility.
The full extent of the delay and, therefore, the total-damages that would be sustained by PECO as a result of Bucks County's actions to halt the Project are not presently ascertainable because of the uncertainty as to the time and cost recuired to obtain the necessary approvals for an alternative source of supplemental cooling water and to design and construct such a facility.
28.
In addition to the foregoing, the cost of replacement power because of delay in the commercial operation of the Limerick plant is estimated to exceed 185.million dollars per year.
l 29.
Total damages to.PECO and-its customers as a result of the foregoing could substantially exceed two. billion dollars.
_7_
(').
COUNT I Invalidation of Ordinance No. 59 30.
The averments of paragraphs 1 through 29 L5cve are incorporated herein by reference as if set out in full.
31.
Ordinance No. 59, insofar as it pertains to the
- Project, is invalid because it was adopted in bad faith, since Bucks County does not intend to perform the obligations of NWRA wi th respect to the Pro ject, including ~ the obligations of NWRA under the Construction and Operation Agreement and the Water Sales Agreement, as required by 5 18( A) of the Act.
32.
Paragraph 16 of the Construct on and Operation Agreement, specifically approved by Bucks County and its Commissioners, prohibits any assignment by NWRA to Buck s 1
County, except to the extent necessary to permit Bucks County to operate and maintain the Project.
Accordingly, Bucks County i
has waived any right that it may have under the Act to assume 3
the Project during its construction phase, and Ordinance No. 59 is to that extent invalid.
33.
Ordinance No. 59, insofar as'it pertains to the Project, is invalid under 5 14 of the Act, 53 P.S..S 317, because the revenue bonds issued by NWRA with respect to the Project have not been finally paid and discharged.
34.
Ordinance No.-59, insofar.as it pertains _to the Project, is -invalid because it purports to compel NWRA to convey the Project to Bucks County, in violation of the provisions of the Trust Indenture between NWRA and Doylestown l
t 3
O
~O National Bank and Trust Company dated March 1, 1967, including section 9.08 thereof.
A copy of the Trust Indenture is attached as Exhibit C to the Complaint filed by plaintif f David J.
Sullivan in this action.
35.
Ordinance No. 59, insofar as-it pertains to the Project, is invalid because it is not in accordance with the requirements of the Local Government Unit Debt Act, 53 P.S.
SS 6780-1 to -609.
36.
PECO lacks a complete and adequate remedy at law.
WHEREFORE, PECO requests that the Court enter an order:
(a) declaring Ordinance No. 59 to be invalid insofar as it pertains to the Project; (b) preliminarily until final hearing, and permanently thereafter, enjoining Bucks County, and all persons acting on its behalf, from taking any action to assume ownership or control of the Project or any part thereof, or to compel NWRA to convey or-release to, Bucks County ownership or control of the Pro ject or any part ther eof, pursuant to or
.under color of any autnority purportedly granted by ordinance No. 59, or from taking any other-action to halt, prevent, impede or delay the construction or--completion of.the Project; (c) in the alternative, enjoining Bucks County, and all persons acting on its-behalf, from taking any action to l
assume control of the Project or' any part = thereof: until construction.is completed; h-k.)
(d) in the further alternative, appointing a receiver for the Project until construction is completed; (e) awarding PECO its damages for the delay in construction caused by the unlawful passage of Ordinance No. 59; and (f) granting such other and different relief as is just.
COUNT II Injunctive Relief for Anticipatory Breach of Contract 37.
The averments of paragraphs 1 through 36 above are incorporated herein-by' reference-as if set out in full.
38.
By its aforesaid conduct, Bucks County has unequivocally repudiated its obligations under.the Construction and Operation Agreement and the Water Sales Agreement-and the obligations of NWRA, which Bucks County has purported to i
assume, under those Agreements.
39.
PECO lacks a complete and adequate remedy at law for Bucks County's anticipatory breach and repudiation of its contractual obligations.
WHEREFORE, PECO requests that the Court enter an order:
(a) preliminarily until final hearing, and permanently thereaf ter, enjoining Bucks County, and all persons acting on its behalf, from taking any. action to assume' control S
N... )
of or to halt, prevent, impede, or delay the construction or completion of the Pr oject; (b) in the alternative, appointing a receiver for the Project until construction is completed; (c) awarding PECO its damages for Bucks County's anticipatory breach and repudiation of its obligations; and (d) gran ting such other and different relief as is just.
COUNT III 1
Injunction Against Tortious Interference by Bucks County 40.
The averments of paragraphs 1 through 39 above are incorporated herein by reference as is set out in full.
41.
By its. letters dated May 18, 1983, by passage of Ordinance No. 59, and by other means, Bucks County, by its Commissioners, has willfully and maliciously interfered and attempted to interfere with and prevent the performance of NWRA's obligations to PECO under the Construction and Operation Agreement.
42.
Bucks County has taken these actions with full knowledge of NWRA's obligations to PECO under the Construction and Operation Agreement and with the express intent of causing.
a breach of the Agreement.
In this regard, Bucks County has l
acted without any legal justification and is guilty of willful.
l misconduct.._.--
()-
(]*)
- f WHEREFORE, in the alternative to Counts I and II, PECO requests that the Caurt-enter an order:
(a) enjoining Bucks County, and all persons acting on its behalf, from interfering with or seeking to in terfere with, prevent, or delay performance of the Construction and Operation Agreement; (b) awarding PECO its damages sustained by the tortious interference committed by Bucks County thus far; and (c) granting such other and different relief as is just.
COUNT IV Specific Performance of the Construction and Operation Agreement 4
43.
-The averments of paragraphs -1 through 42 above are incorporated herein by reference as if set out in full.
44.
Bucks County's purported termination of the Construction and Operation Agreement is without authority, good cause, or legal justification or excuse.
All conditions precedent to the obliga tions imposed by the Agreement on Bucks
-County and on NURA (which obligations Bucks County has purported to assume) have been satisfied.
45.
PECO lacks a' complete and adequate remedy at law.
l l
l
- ~ -
O' O
v
~
WHEREFORE, in the alternative to Counts I and II, PECO requests that the Cour t en ter an order:
(a) declaring that the Construction and Operation Agreement remains in full force and effect; (b) directing Bucks County to specifically perform its obligations and those of NWRA under the Construction and Operation Agreement; (c) prohibiting Bucks County, and all persons acting on its behalf, from taking any action to impede, prevent or delay the construction and operation of the Project, in accordance with the Cons truction and Operation Agreement; (d) awarding PECO its damages for the delay in
-performance of the Construction and Operation Agreement. caused by Bucks County's actions; (e) directing such further action as is necessary or appropriate to implement the mandate of the Court, including, if necessary, the appointment of a receiver for the Project; and (f) granting such other and different relief as is just.
COUNT V Damages for Breach of the Construction and Ooeration Agreement 46.
The averments of paragraphs 1 through 45 above l
are incorporated herein by reference as if set out in full.
l O
O WHEREFORE, PECO requests, in the further alternative, that judgment be entered in its favor and against Bucks County l
for such damages as are sustained by PECC by reason of Bucks County's breach of the Construction and Operation Agreement, in an amount to be determined at trial.
i COUNT VI Specific Performance of the Water Sales Agreement 47.
The averments of paragraphs 1 through 46 above 1
are incorporated herein by reference as if set out in full.
i 48.
PECO is an intended third-party beneficiary under she Water Sales Agreement.
49.
Bucks County's purported termination of-the Water Sales Agreement is without authority, good cause, or legal justification or excuse.
All conditions precedent to the obligations imposed by the Agreement on Bucks County and on i
~
NWRA (which obligations Bucks County-has purported to ausume)..
~
have been satisfied.
50.
PECOlacksacompleteandadequatere$edhat t
law.
WHEREFORE, in the alternative to Counts IJand II,-~PECO requests that the Court enter an order:
n (a) declaring 1that the Water Sales Agreement 4
l remains in full force and effect;
[
e s
y
[%
W 1
4
>Y
o
([) '
(-)
(b) directing Bucks County to specifically perform its obligations and those of NWRA under the Water Sales Agreement; (c) prohibiting Bucks County, and all persons acting on its behalf, from taking any action to impede, prevent or delay the construction and operation of the Project, in accordance with the Water Sales Agreement:
(d) awarding PECO its damages for the delay in performance of the Water Sales Agreemont caused by Bucks County's actions; (e) directing such further action as is necessary or appropriate to implement the mandate of the Court, including, if necessary, the appointment of a receiver for the Project; and l
(f) granting such other and different relief as is just.
COUNT VII Damages for Breach of the Water Sales Agreement 51.
The averments of paragraphs 1 through 50 above are incorporated herein by reference as if set out in full.
Wi!CREFORE. PECO requests, in the further alternative, that judgment be entered in its favor and against Bucks County for such damages as are sustained by PECO by reason of Bucks.
=
gy a
v' Cou4ty's breach of the Water Sales Agrooment, in an amount to be determined at trial.
i.
- f. ;'.., Z
. ~:/*' C.',
,e a
Howard Gittis Bernard Chanin Jeffrey S.
Saltz OF COUNSEL:
WOLF, DLOCK, SCHORR and SOLIS-COM EN Twelfth Floor Packard Building Philadelphia, Pennsylvania 19102 (215) 977-2000
//
/
W.Na imont POWER, BOWEN & VALIMONT 102 North Main Street Doylestown, Pennsylvania 18901 (215) 345-7500 Attorneys for Philadelphia Electric Company t -
f A
.,.. i.!:
VERIFICATION VINCENT S. BOYER hereby states that he is Senior Vice President of Philadelphia Electric Company and, as such, is authorized to make this statement on its behalf, and that the facts set forth in the foregoing Petition of Philadelphia Electric Company for Intervention are true and correct to the best of his knowledge, information and belief.
This statement is made subject to the penalties of 18 Pa. C. S.
S 4909 relating to unsworn falsification to authorities.
VINCENT S.
BOYER V
Date:
November 28, 1983 t
I
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6_1 -
O
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jah
/ ws. gt COUNTY OF BUCKS
, m'a>
OFFICE OF THE C O:M M I S S I O N E R S g
~
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Adminiserasion Building. D oylesso - n.
Pa.
1a90:
f' 215.148 2911 215 752-0233 t'ouery [ emmisesoners LI.AI.NE Pl:Tt CH ZETTirE. CA irmen A N D R E W L. W A R R EN. s ice.(A.4,..
( A RI. k. FON ASH May 18, 1983
?hiladelphia Electric Company 21st and Market Streets
?hiladelphia, PA 19103 Attention:
Mr. Vincent Boyer Vice President
Dear Mr. Boyer:
? lease be. advised that we, the Bucks County Commissioners, are hereby terminating our contract with you to operate the Point ?leasant ? umping Station pursuant to the Agreement'between the Neshaminy Water Resources Authority and ?hiladelphia Electric Company' dated February 12, 1980.
Very truly yours, A*
Elaine ?. Ze
, Chairman
/
w Andrew L. Warren
)
EXHIBIT "C"
]
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- e. R e X I O T Ql e n 1 0 OT Tem 00FQFy in UnCT
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y,%,
g
'.- E)CI'6--W DAN.'EL L fl.'LLWAN A TMU5hhTF 15'
.ctbn shou!d en5y be C:s e st !tst'.! cf !*s pcje cts. !! r~;st !L st dem.
', : Q-k
,y t
g:1.:ed v htre 1*lva !> tmmbent End, if c r rtrate 2tt !! tas ;115 ud discht.rged all
'*- 7M 'u COUNTT cf Bt'CKS and ELA!NE P.
C C 5 5 0
- h. %>? -
ZETTICK, ANDF.EM L. WAREEN and b t e aw arded w hm Se c cm;:ti. ant's r:ght r.ch rew'rement is set icMA in Sect:n 35
^#NW CAP.L F. PON A5H - Ind:VidaaUy and aJ
!s r.ot clear or where the w rcng is r:ot (A). In fact, Secuen 25 (A) spec *1caUy po.
d*f7C E D*.9f.4 C E *'.l me.' esh reptone Cullc', be. v. Teas. MS udes that the gove r.bg body b imp'ement.
J Members of the Estro cf Ccmm!ssione's og the Co nty of Backs and NESMA. MINT WA.
Pa. 46 (2no); Hi!hoan Toanship v. Mager,8
!ct that section shall assume "all of the di--N O TEF. RESOUP.CES AUT-iORITY,
Pa. Com nens e a!B C{urt R (35*;): 2etta v.
ct::gathns beurred by the AuthcMUer s!!h
- %' '. - ~
5:1x! D: :dct 'c! the up of h%u ph, 4 Ps.
respett to t'1 grclect." We er.:, understard cpen est eder Ce m-.cn w e a ?. Cc ur, f4: (:F!!iEnd d! & =2 v hy the Ccmm : sea!O Cou-t b MJCa: r.ay
~~
O n N ca e.m t e r I E, : H the Scard cf c'.vlaf C1mcal Cor, et Ps 24 (:M!).
.ftte; cf t'.e rase stere there w as r.c demen-1 sf tb esort f a 'e nd car M.a' Ccq i T. - 9 4.4 in.
hase teen ccace~.ed about this pa *Jcular Cc=mtu!:.e rs cf the Cc=:y cf E.:rls ad:pt.
The plair.!!t! must estat"sh that it is his skated ccm;t'an;e sith the Lotal Cos ern-L%. M,%
' I ed Ord.tr.ce !E sheret) the c:rty mght legal Mght, r.st dc.tt'u: cr ut.c er".atn. to the rntn! Unit Debt Act. In add: Don, the bond f >, :
to iske oser the ;-rject ci the Neshtminy spect';c reDef so.:ght. Cther-!se the p*climi-ci"gEUens in MdCm spect$cally prodded
.E O. _.
Water Resm.;rces Auth:M:y (NWRA) hadng r.a y 2funeben should not issue. L'u!:ased tnat those bond ctilgaUens sha.D not be a.s-
" 7)~'P ' ' b' tc do s!!h the w ster db ersion picject at' Li' er and Easter Cc9pa9) v. Scl,ecA:ct. 400 s'g cc or 1 a.nsferred to s.ny cther pety. No
>- h M. N.d
. ~. - ~ ~.
Pcin! T enstn! under and p.;rruant to the Pa 40: (2Ef.0). L-deternt.:.nr O.e p cp-tety such prch:b!! oc is found in the bend
... &'- Y
}.S.nic!gality Authorities Act c 154! and cf a temporary restrah5; cider the court tr. dentures in the case before us. Therefore, speci$ cal!y section 2E ( A) c! that Act. See d:=s not rnake a satrching inquiry into the pitht1*! has faSed to derconstrate a cieu 5T M 'Y El the Act of July 3C,355;, P.L f32, Setter 1, f4 facts, and peticultt!y refrains frc= mttbg rithi to t',e reUc! he seeks btsed uper. his "IMCdN-p?hf P.S.121 ( A). By vir:ve cf that cidt..a:e the a.ny evajustion of the rneMts or the facts of argument o!tr.larndness of the c-f.inance.
..k cour.'y !!iewise puryc-ted to assume a.D of the underlying d15pute. Terloff Srothm, bc.
In th.!s reto-d m e ce unable to f;nd su!!1-
.W Q,you a the otD;su:ns incurred b) the Authority. v. CJ o'onici,tD6 Pa. 33; (1M2).
cient evidence to establish the plain"!fs,
' 'M' N.- G 1
.t ; f..$
s!*.h respect tr, that project. V1-tua.Uy imme-We do not beDeve that the pla.in'aff has es-cler right ic the 1-juncUon !! seeks at this diaitly upon the enactment of that ordi a.nce tat!!ahed the clear legal right which stage cf the presteedings lated upon the
."r-N '.f-@
the plLintiff terein, as a itzpayer and as in const!utes a prerequ'sne to the its;tste of a im;strr.ent c! e: tract argument. Cietrly i-, i.% ?
the r.ature of a class act3cn en behan cf EU temp;rary testraining crder.
teth the United States and Pennsylvania 5 ;f "J, ; ;
taxpay ers c! Bucks Ccunty, insUttted t.*J.s -
% e are net convinced cn t'is bMe! re:Ord State Ctrst:vSns p ch:t. any legislative e'-
?
M.:~.^
acton in equity te er. join the county !-cm im-that !! has t-cen demenstrated that the action by the $ ste or its unfts cf local
". J-p!emer. ting that crfinLnce. The County of County lacks the PO= er u*.dtr the rtIO ant
{cs LTnmtSt u hhh l.mf air the b!efdty of es.
- 25 ; p.,._
Bucks and the three Ccunty Ccmmissl:.ners pov!siens cf the Mur.;t!;tuty Aut'.cMUes 1 sting-mt atts See Uni:cd 5:nes Trust Com-7-7l4 3 y 1
/WQ'.r mere r.amed as defendants as sas the Au-Act to take oser the p eject and the Author 1-fJ93 of Nr= f o-i v. Ac= Je ser. 43) U.S. L 97 thor:ty, Contempers.ntous s!!h the f"ing of Des' ctUgs!! cts under Secuen 36 (A) of the S CL !!45. 5* L. Ed 2nd S2 (3P77); Teamytra-2.W;*, S C" the acuen in equ!ty an appucation was rnade Act The p:stntff redes in this regard upon nia labo Ke'a' ion Swd v. Zelem,459 Pa. 399
- ,. Q ;.Q.? %
for a ternpornry restrL2kg Crdtr. A hear 1ng Coun's of MJ!im s. M& Coen Mpo : Au-(1 sit) and Helicon Corp. s. Scrough of T
was he:d en Ncs emt er 3,2M At the begin-t'orsh, 437 A3d ifl (Commenu t a!!h Court S msni"e. Hl.Cd Iti (Pa Ccmmens ea'th a
7- - U - f.
r.ing of the tearing Thi'adelphia Electric 16!!). In that case the Ccmmens esith Court Ccurt 3652). Hueser, the orJy tl.ing that ha.s
~r. 5 Company (PECO) as s eU as the North Penn held that the low er court did not err in ha;;tned thus farin 15.ls gase is the adeption s
N-A Water Ccmpany and the Ncrth Wales Water dism!ssing the action in rnandamus brought of the crdi ance in pestion. Ne actions have
- '..I Sf. f '
Ccmpany reUUcned !ct and u ere permitted by the County to implement the enactment of been taten as yet by the County to imple.
. ; g.. * -
to Intervene en the side of the plaint 1!!.
Its ordinance under this scetion. The Court rnent that cribance Obvio.: sly there mould
..e5-PECO Ukewise filed its owT. ccm;1str.t in eg-held that, mandamus representing an be no impat rnent of contract r:ghts if the
~~ Q W W utty and lileulse sought a temporary re-extraordinary remedy which will not be County takes over the project. assumes EU 2 $ v; strainirg order.
g~ anted in doubt *ul cases and win issue only debts and ether et!!gations, and then 7-C'!R*g At the hearing evidence was presented on shere there is clear and specifle legal right proceeds to fulf;U the cont act ettgatons
,.. 'W t.ehalf of the plaintiff as w eU as the Authort-in the plaintiff and a correspondbg duty in s tich it would then have kssunsed. The 7
4,. N*
- D"*O t
ty, PECO and the two water ccmpar.les. No defendant, the plabt:ff's right w as not suff1-thrust of the plab".ffs contention in this
.* s- * )*- y evidence sas presented by the County cienUy clear. That case u as distir.guished by regard is, enentisty, an anut ;atory breach
- "'S.#* A although the depos!Uens of Commissioners ' an epinic,n of this court in f onci Sot fAa rp:on by the Count) Lased upon certain put!!c y-Y.1:****
Carl Tonash and Andrew Warren stre made _ Township Soard of Supervisors v. Iomer South-statements made by the County Commtsslon-c.,l;.i 'h, ;j-part of the record en tehti! of the platr. tiff.
arnplon Township Municipal Authority, 39 ers, which are not of record, and the depost-t. A.* cf a.:
Essent!aUy 11 was the pes!!!cn c! the plaintiff Euck s Co. L Rep. 74 (tP12).
tions of teth Ccmmissioners Ter. ash and
,4
~
that on the present state of the record the On this record there are several Warren Ccmm!rsioner Warren in tis depesi-
..d ordinance w as of no effect because the disti gu!shing features. To begin with, in t!cn clearly and unep!vocaUy tettified that M..J'.~%@#.'
r t
Ccunty !s without pom er to assume the Md/im, !! w as noted that there had been no it is his inter.uon ente the ord: nance is imple-M M.M<.1 g
prcject and the ottgations of the Authority, ccep!:ance ulth the local Covernment Unit rnented to stop the Trc, ject and treacb
- *y. K...
that what the County purports to do s ould be Debt Act, the Act cf April 22,1975, P.L 124, tactous of the contrsets entered into by the i
- D c-a.n infrbgement of centractural rights under No. Sf, secuon 1, 53 P.S. E750 3 et seq. pre-Au'hcrity (and in some cases the County as
.1, 4 y; *,*.
- prohibitions of the United States and Penn-11.! nary to the sesumpUon by the County of m ell). Ho eser. Ccmm!*sioner Tonash w as
%(. A,C *.~ 1 cantract, and fu-ther that irreparatie harm Ir. th!s case ario on th!s record, it is estab-m as his testimany t*st he desired that the sylvania Cens!!!c*1cn agalns Impairment of the debt ol,1:gattens c! the Airport Authority.
samen hst less f;rther. ming. EssenuaUy, it i
' " q "T.a,- j 3
would result if the County were to take over Ushed t*at the County compiled with the prt>
- c. ject be stopped but that his intenuon at T ~~ !
the prcject and the ensu!".E otUgabons.
Visions of this Act. or ra!5er fis predecessor,
- the 11rne of the depestilon una rnerely to b
1( jf shere there is an urgent necessity to avoid the Authority and that is evidenced by a straction !tself, pursutnt to the construction n ' eda. D. ;*g ]
A prettminary injuncuon util tssue or.ly in 25 3 wtih respect to the bond indentures of declare a rnoratoriam of 60 days on the con-i,C 2, 3Erhe,f.
injury which cannot be cornpensated for by certtficate of compilance lasued by the contract. a.nd then atte mpt to negotiate some
..,.1 7*M.C ]-
dar-ages and should never be amarded De r artrne nt c,! Cor.sumer Affatts.,
a!!ernaUve with the centracting partes !!is Q~*, 3 0 eacept when the r!ghts of the plainU*f are The court in MJ/lin a as 1: hem-!se concerned far from clatt fr r. his de;.cstton that 1: is
.. 11 clear. It should not issue unless greater with and to scme extend appued section 24 his hientlen.ur. der sD circurnstances.te f.at.
G. : F,m j,N W
,? q inja y wCl be done by re*using it thtn by 15 P.S. 317. of the Municipauty Authcrities cut breach the sarion cc.ntracts with PECO k,f l.. Q; *
-$3 grar.ttr g it. Heiman v. Diaon, 253 Pa. 83 Act and read that secuen tcgett er sith See-and Montgcmery Cour.*y. Although it rney be
.i.-
p.
$'. 9 ';
( 19 ',5 ).
t!cn 18 (A). De datinction between these arg.;ed that the imp:emen'.aton of this,ordJ-p' ;" ;.
The essential prerequis;tes for the issu-tuo sections is apparent on their face a.nd E [*' f ance of a pret:r.inary t$ncton art: (1) s as graphically described in the Lower QQ'Q{J,.K. #,p ?,.[N*E-fl Q that it is recenstry to frevent 1nmediate Southa mpton Tco rship case. Essentially O
?).. L.D[~
. [-,
, I '.O and trreparatie harm whleb codd not be section is (A) dea!s with the circumstance i
-..4 compensated by damages; (2) that greater mhere the creating gost ning body deter-1
'- -y;f.f,+r' tr. jury s culd re sult by refusing than by rntr,es to tale oser the p-cject from the Au-
~
- Q*.c ;; 1.M,
giar. ting it: (3) that It properly resteres the the-!!y it created the reby, lericaUy, assum-
. 2.,
'.*J*-
- trues to their status ta they existed irnme-bg aU of the dette and ob"gations cf the Av.
.f n
>. " T ' f diately prior to t'.e LI:eged m rongful conduct.
tt6tity. Secticr.14 deals with a s!!uation
.t'.*. 3 4
- .[fff s q
L* "., 5 *.., J Of great a:g.t':cLace is the determbation 3Fere the Manle!pa! Autho-ity deterrntnes to -
- g,
that the actdt:et so;;ht to be restraired are d vent !!self cf arme or al; cf tis prcjects by 4? y 9 #.).
. 2
- Y actf arat,;e and 15.11 the 1. junction sought is cc nveying the m tc the govern!r.g tody.
Y-4 Y f.
-i
- y re nsaat?} s.ited tc af ste e.ch actM y. Un-Otviruelp, t$e Le t's:sture reccf.ined l'at a
, ' *. '.. _ d '...
. 3,.y 3
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less the plainti!!'s flght is clear ard the Munt:!ptl AutWity sto.dd not be perrn!!ted
.' ' E'M9 ' ' ; A..**,., U M 1 r
~
~
O m rung rnar.ifest. a prt::..hary 1** ncuan 14 !cist its detts a*d ethgatens upon the
- k. N * **.,
st: net generaUy be as arted. A.M Hne, gri e r.i.g btdy
- t'.~at its ccr.ser,t. There-J i
'[~***;q he. v Cd:'.c H:,.+n. He,41: Pt 3 77 (!W).
fc re, te fore a Wr.fcly al Authcrity rr.ay
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cc 3,,g Q..(,{ y y a, g;;,4g,l l
? 3.s g reje:tr. !! r urt !!?st dem-r.a.rie snay s erk, b srme s sy, a fr 'e!!ure f
- J. tb 'N., 7).C a #
It ! r.s ;att a.nd disc'arged al:
en the cuistandi g b:nda, t'.a* matter !s f ar - he cc.rt has the ;e er Lc 'i'de dwn a A M1 * *
- *- sjw ays is ti
'nc t-d ty it unde. 4:tM 14 tut no frcm citar in Mew cf Fcnssh's testmcny stat;te e xcep' fcr U-Cm" a.!
e a.r 3,
. mig c f.cnt is 6st fc-1.h in Set"sn 18 that it s euid t e his int (nt!:nr tc sta.! t ehind, es en w here 11 tehc.es !?e 59.tute urMst or ' Eth 5
[g'
- {. tin c abese Q 4ectics 15 (A) spe:i'irat'y prt>
and py c.:f the bctded 1rdetted ess as re.
p-oducUve cf n:!il'y ude!! rat,Ie reschs.. t 4sl and se pic!st to httlere that if gou r.bg body b impcment-qatred by the bdentures. F#.he-more. se. Es: ate of A ms song r. Temhata goard of leglslature hav e performed, and s f t
inn shall assume "all of the are not sat!s!!ed, on this record. that the Tso!.a:;on. 405 A.2d IN (Pa. Commens ea:th - m=;7.g g y[.
their tmst, rather th3 estred by the Aubr-tues with 1 r.p;tatrasten of the ordi.ance, strnding Court 1S75). Tr e.judicia 3 she.1d net birudei a y7 ear cf a wrceg betr le stand te. m.e W b er t ture ut p reject." E e es.n onders'.and alcne, s onld s:-mehow impir the secudiv of into the legislause area cf got er". ment uo,
d atte.ng;,3 g sens e art' Co;rt in At"le r-ay the 1.cnd tr:de.s. Ccm;ee (!rdred5:ates frust less !! is f emonst ated that the leg' slat:ve t ran:g eg 3, g.,,N,_,e; ggg;.,; 33 gest an:erned ab:ut t*.!s pM.!:L:ar Cc,w of Nem FotA r. Nem /mer. supra.
body, s hether,it be at De State level or mu-e g en g. the m er ', M n th-Q2y b u e s htte the re s as r.o de mon-ErstnuaSy, the difnculty w!!h plattt!!'s po-rJc!pa!. has arted in a rne.ner vlo!atse of ag; Z*.ed t WA lance w*th the Loral Gourn-a:t'en at this t'me,is that the cr.!y thing that. the Consututwn. Acts c the General Assem.,
1;ere is r.M d' ' pm...g g4.
'rtt Act. In aci:non, the tsnd has ha;;ened thus far has teen the enact-bly cr the organic law of the InurJcipatty or se a:1.g g3m p.,.,.
es h --
tieve that the eride'nYe presen.bd n nffhn speti'.cai!;. p-Mded rnent cf an crdbance, solely a legislats e aci tn a r anner sterein the legiskure body ted at 12 rd ott:pticns shL;: n:t be as-tion by the B:nd cf Co=mtssionera.
lacks the power c,r authe-t y to act. ne uts-h e a-t g ru *A-='&+ to p- *y the enti as! erred to e.y cther rarty. No foctrote 1 There is a turther cuestson of dem of the lepsiture act is not v?.'.h'.n the of the te=perary rett al.ing crde.,r b i tilor. is !eund lr. the bcnd he:.cr l'.e becach of a centiarf res !nt:s is an - court's judgrnent. Ma?:ravelo v. Fucuey e33 t*.at steg e;,.,,.;
g,, g.,g; g. ;.;g37, 3
- the esse l e!cre us - here's-e, sn ard e'c*amates consfi:.rtes an uncoes <rufion,
Pa. n2 (15f 9). It is net suffic!ent that 1.t.ts court t-'.s the Ig%*se a d esec 'W c
c;;cnents disa;-ee w!!h the widsors of the fe.neti:ns c: the hard cd Ceratty Ccm=!
afi ;a.menf of contract.
!a"ed tc dem:nr9de a r: ear
!!!s true that at the h;earir:g there was ler.nlatve body's action. A court c! equity aleners. we em;W t at cx;r attire bia ret:e! ha seeks lated UMn his g-;s wt; bess e: the cid'.ance.
seme estdence of the pessible damages wt2 nct suts"tute !!a determbat!:n of shat rnere!y der;et the a- "catin s fr.: a t
rey restre g e.dr3e have n t reathe prd we are unatie to hnd sdfr s h!ch cculd occur to the County if the, rnny be wise for the deelston of the ge to estattah the ;1stn*2ff's, centracts with PECO and Montremery apprep-iste goverr.mentq body.. absent a nor cound s e, t:.e g :.. ate =crtis c! tte ca 4 the bjan: tion 31 seeks at this Co.rly were breached. There was !!kemise showing of tad f aith, or abuse or pow er.
tr:re sy ye-ge.,g gy 3m pgyi, ]
g t proceedings 'ta sed up:n the testirnony regarding the damages due to the rader v. TM!acefphia, so.a. The queston of equity. Thus f ar the Laard of Ceus1 pf centract a.trement. Cietrly contractor h:mself. These htter da : ages., the w!sdctn of the acts of a leg:stathe body Cc neissi:ne s h.y,r.citly eracted an cr 3
nied States ar.d Fer.nrylvanta although run.ing 1:10 several m11 Hen d:llars, are, ordinarily, not !ct the crurt, there being na.te s t!g, on
,;.gg,, g g ;3, g pif:r.s pre h" Any hgts:stive are not of suf ficient rnagn!!ude as to a presumption that the 1er!!!auve c !t !als to de. Thas far rc f ar Ac,. ac.x,s m e m he !!ste or its un*ts cf Iccal const:tute tireparable ith.ry. Hem es er, ket hu tui!y in the esti !>e of their d'scre-tM er..Cth..pt ty ey n,y,,,,ug p,g,g g,
+
g kr.t:t im;11-L' e i-te;-:ty of ex-there s as tertimory
..m FEOO te the e!!ect t'en fit re:ci-!2e that it is 1.he duty c! the thet: rtr. ts : 23 t, e...*W = e ce not 8-ria. See United Szes Trus Corn-that a treach cf 1.5 ccntract and the faS;re cou:t te inq; ire into that exercise. s.r.d t' !! is ge".sr. at t'as tme b r.de Nee deter:d t od v. he. fewer. <!! U.S.1. 91 to deiner mater to 1:s Limenck plant when found that the c:scredon c the ether tranch r.aticra. Ts e de tet. at itts ti=e, ish
- L Ed 2nd 1; (:SU). Tenwha-the fJs! reactoris anticipted to be ready for of gosernment has been abused, we rnay u hether the BA-d c: Cac. J Cc : mtulan Wio, Eca d e letm efs Pa 99 cperatinn.*>:metirne in t.he late sammer of interfere and relies e against cypresstre c.r wiu in 'act t-end the ram ;.s contracts Sc'ergh of IfH. s ould resa11 in damages c: ap; exl-art:trary action. Src.nins
- v. Alleshear velved in tt*se trcceed:rgs. Only cae l Helicon Corp.
t s o A.td 11I (Pa. Commo,* ea!th rr.ately 3M.C00.t00.0c per mcnth unti: such Count),53: Pa. 414 (1538). How ever, it 1: the t'.see Cc.m.insts.e a has u e-;trocany sti
- Hew ever, the c.nly U g t'.at han w ater is deusered and the reactor put into duty of this court to execute the legdstative ed his Intettlen to do so. T$e second ti es far in this case is the adr$ tion operation. Quite ebv!cusly, if the ultimate, will in the mant.er grescr
- bed in statutes ao e qu!vocated, the third in:t= bent has n nee in queitjon. No actions have were to occur and it were to take PECO any.
long as no cor.stitutional provisten is vlotat-beer heard f-em and ter ter n c.f c me w-a yet by the Oc%nty to !=ple-where from two to fae } ears u testified, to ed, regard;ess of t.he hardship of a partteular er.d on the f.rs! Monday of Je.u.a.ry, ne dinance. Obvtcusly trere would find an alternauve searce of cocling water case or whether our epinion u to stat the ne perssn.:ected to rrriaee that Com-J ment cf ccr. tract r'ghts If the for its reactor, the damages are not only law ought to be coincides wit.h that of the s!crer has 13emise not been heard frcr eser the project, ses; met aU, prctably irreprable, (to the taxpayers of Legislature. Chester School District's Audsf.
nerefere. at this time, to attempt te asis.
s hat the actitre of the B ard of Cou.-
, ather oM!gatiens. and then BJchs County as web as PECO) but in fact 301 Pa. 203 t1930)/
., Ccmr tn!:ne-wi.! te is FM sperutam i.*u!!:2 the contract ot!!gations staggering. However, until a ruincient and.
The means chosen by the Legis1sture must
, tas!n upor.
- hlth m e dir. t bebeve m e e.a h.1d then has e anrumed. ne.
adequate record can be rnade to estabush, be reasonably des!gned to achieve permissi-s b phinuff s contention in this clearly and unequivocaDy that this is what ble ends. However, the role of the judiciary take the sert:.as step o! intruein
,e3
' ntially, an anucipato y breach may reasonably be anucipated to occur, we in scrutin!rtng the particular approach into the lep=:sth e f anttion. *,- It,,
ty b: sed upon certain public do not beheve that a temporary restraining, eclected by the legislauwe liody is a limited The fo egcht s'.oald not be co.strwd ide by the Co nty Cct-mtssion-order is apprcpriate absent a char shouing one.We do not, at the invitation of a dugrun-, any usy as a determt aton that uMa a tied taxpayer or taxpa)ers, restsess the wis-apprc;ttate reccrd the it:Junctlee relr le not of recctd, and the depoal-ofr:ght.
h Commissioners Fctash and.
M e telles e that ne decision we reached to-dom a.nd expediency of alternauve methods, sought 3!I! net f.nat y le granted. % e de.
Nmissicner M arren h his depost-day is not only cons! stent with tut dictated cf' solving public protlems. It is the province decide shther or not, ultimately, m and unquivocaUy tesiihed that by the const!!utional principle of eepration of the Legislature and not the judictary to de-would be a tu'a upn uhith to find that t; tuon ence the ordtr.ance is t=ple-o! powers and the judicial principle of judi-ter:. int the means trecessary to cor.!ront and Countfs setor.s in attern;ttng to tale es stop (he project and treach cla1 restraint. It is presumed that municipal solve pub!!c prebie ms. Our inquiry is !!mtted the p eject are urJawful. We an u.atte le centracts er.tered trio by the officers act properly for the put11e good., to a determination of w hether the means deterrnine at this U:ne that the actions to :
tMer ty the Coar.ty in the futurt
'rd in some cases the County as Robimon v. Phifacefphia,400 Ps. 50 (1960) and selected are so demonstrably irrelevant to ver, Comm!ntoner Pcnash was Hpam v.1.lpper Mar.fpomery Joent Authontr.
the policy of the Legis1sture as to be they may be, w!;: hase the e!!ect of irr.pa and trrational Toiro v. Tenwfwa-ing va'rious of the centract rights t< fore a bss forthcoming. Essent' ally, it 2E5 Pa. 4H (1660). Courts u!!! not alt in art!trar)ing Horne Ican Agench 460 Pa. I withoutir.e=tg nese rnatters, s e obdxi
-.ony that he desired that the review of municipa! actions involving discre-nia Nurs iciped but that his intention at tion. In the absence of proof of traud, coUu-(1875). As sat s'.sted in leahey v. fancII. Sc2 are unatie te dete mine sta sa!!)cter.1 claj the deper!!!cn w as nerely to s:en. tad faith or art:trary action equatin-Pa f.2 (1H9):
I.
ty,that there =T:te irreparatle tarm. 8 j eratorium of 6: Csys on the con-ar. abuse of dhcretion. S.bmenschein v. An.s.
"Ur. der the s) stem of division of Por the !c eg;t g rensora s e deny the a
.alf, purs.snt to the eccst ucuon bu gh Housing Authonry,375 Pa. St6 (19%). In roser.menta! powers it frequently happens putationfor s ter porari restit!nt.g or6ef 04.e
- 9. ; s
<9 then attempt to regctiate same the absence of proof of fraud, coUusion, bad - that the funcuens of one branch may overlap ylth the car. tract'rg prties.11la f aith or abuse of power, courts do not inquire another. But the successful and e!Delent ad-And rew, te wit, this 5th day of Dece:n1 ar !rca; his dep,:ucn that it is into the wisdom of mun!cipal acDons and min!stration of government anumes that 15E3, t is hersty ordered that the ap;.5 crders a
, u. der at: circumstances, to flat
}udstial discreuen shoald not be subsUtuted each branch w!Il cooperate with the others.
tions for temprary restrat.!ag?
me ry Cou.ty. A?: hough 3: may be Ap;.ca?,425 Pa. 23 (1Dt?) amd fader v. Phila-Moschtisker (when a Judge in Common f. s e By the 0 De sarloas ccrarac'J utta PECO for admir.lstrative discretion. Coodman
- As was said by the late Chief Justice denie d.
s,,
- ;f
- laast 1. Ca the imp; err.entaton of this ordl-de!phia,391 Pa. 242 (19!4). See also Webber v.
- Pleas No.1 of Philadelphta) reported in -
. ? :,- 1
- a.,
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