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05/22/97 RICHARD F. SMITH v. BOROUGH EAST

May 22, 1997

RICHARD F. SMITH, GRAND CENTRAL SANITATION, INC. AND GRAND CENTRAL SANITARY LANDFILL, INC.
v.
THE BOROUGH OF EAST STROUDSBURG, MONROE COUNTY MUNICIPAL WASTE AUTHORITY AND J. P. MASCARO & SONS, INC. THE BOROUGH OF EAST STROUDSBURG, APPELLANT; RICHARD F. SMITH, GRAND CENTRAL SANITATION, INC. AND GRAND CENTRAL SANITARY LANDFILL, INC. V. THE BOROUGH OF EAST STROUDSBURG, MONROE COUNTY MUNICIPAL WASTE AUTHORITY AND J. P. MASCARO & SONS, INC. J. P. MASCARO & SONS, INC., APPELLANT



Appealed From No. 3253 CIV 95. Common Pleas Court of the County of Monroe. Judge CHESLOCK.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri

The opinion of the court was delivered by: Silvestri

OPINION BY

SENIOR JUDGE SILVESTRI

Filed: May 22, 1997

These are separate appeals by the Borough of East Stroudsburg (Borough) and J.P. Mascaro and Sons, Inc. (Mascaro), which have been consolidated, from an October 31, 1996 order of the Court of Common Pleas of Monroe County (trial court) denying their separate, but same, motions for post-trial relief, and affirming its order of August 7, 1996 granting the request of Richard F. Smith, Grand Central Sanitation, Inc. (Grand Central Sanitation), and Grand Central Sanitary Landfill, Inc. (Grand Central Landfill) for a permanent injunction. *fn1

The factual and procedural history is as follows. Grand Central Landfill is the owner of a landfill located in Pen Argyl, Northampton County, Pennsylvania. The Monroe County Municipal Waste Authority (Authority), pursuant to the Municipal Waste Planning, Recycling and Waste Reduction Act, *fn2 was designated to undertake solid waste planning and plan implementation for Monroe County. Thereafter, the Authority adopted the Monroe County Municipal Waste Management Plan (Plan) which it implemented by entering into a landfill service agreement with Grand Central Landfill for the disposal of Monroe County's municipal waste at its landfill. The Borough, by resolution of Borough Council, adopted the Plan, which specifically provided, inter alia, that its municipal waste be disposed of at the Grand Central Landfill landfill. (R.R 128a.) Subsequent to approval of the Plan by the various municipalities, *fn3 the Department of Environmental Protection approved the aforesaid Plan, following which Monroe County adopted the Monroe County Municipal Waste Management Authority Flow Control Ordinance of 1992 (Ordinance). The Ordinance made it unlawful to dispose of Monroe County's waste at any landfill not located in Pennsylvania and mandated that all municipal waste be disposed of at the Grand Central Landfill.

For a period of time prior to 1996, the Borough had contracted with Grand Central Sanitation to collect all municipal waste within the Borough. This contract was due to expire at the end of 1995. On October 2 and October 5, 1995, the Borough advertised its solicitation for bids for a three (3) year contract, to commence on January 1, 1996, for the collection, removal and disposal of all garbage, refuse and other residential waste generated by households in the Borough. On October 10, 1995, a pre-bid conference was held by the Borough Manager and was attended by both Grand Central Sanitation and Mascaro. At the pre-bid conference, Grand Central Sanitation inquired whether compliance with the Ordinance was mandatory. The Borough Manager did not reply to this question other than to say that an addendum would be issued to its solicitation for bids. On October 12, 1995, the Borough issued a supplemental notice to bidders, as follows:

Regarding waste flow control requirements please refer to Paragraph 1 of the General Conditions, page 5.[ *fn4 ] Please be advised that the Borough of East Stroudsburg in 1991 approved the Monroe County Municipal Waste Management Plan, and the Monroe County Commissioners on 2-25-92 adopted the Monroe County Municipal Waste Management Ordinance which empowers them to implement and enforce the County Plan. Copies of the Plan and the County Waste Management Ordinance are available from the Office of the Municipal Waste Management Authority, 38 North 7th St., Stroudsburg, PA 18360, telephone (717) 421-7301.

R.R. 394a.

On October 16, 1995, Mascaro and Grand Central Sanitation submitted bids in response to the solicitation of the Borough. *fn5 Mascaro's bid was approximately $80,000.00 lower than the bid of Grand Central Sanitation. Accompanying Mascaro's bid was a letter, as part of its bid, which, as herein relevant, provided for the disposal of trash collected in the Borough, as follows:

Please be advised that if our company is successful and awarded the Borough's Trash Collection and Disposal Bid, the Borough's trash will be transported by our company to the Lehigh Valley Recycling Center located in nearby North Whitehall Township, Lehigh County, Pennsylvania. This facility is a solid waste processing and transfer facility ("Transfer Station") operating pursuant to a valid permit issued by the Commonwealth of Pennsylvania, Department of Environmental Protection.

When the waste is dumped at this Transfer Station, it will be processed and transferred into larger trailers and will be transported to either the Brooke County Sanitary Landfill in Colliers, West Virginia and/or the Wetzel ...


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