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55 Kenmore Lane, LLC v. Upper Providence Township

November 16, 2010


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge


Presently before the Court is the Motion for Summary Judgment filed by Defendants Upper Providence Township ("UPT") and Upper Providence Township Sewer Authority (the "Authority") (Doc. No. 17) (the "Motion"), together with Plaintiff 55 Kenmore Lane, LLC, Assignee of Kenmore Woods, LLC's "Answer of Plaintiff, Kenmore Woods, LLC to Motion for Summary Judgment of Upper Providence Township and Upper Providence Township Sewer Authority" (Doc. 19) and "Memorandum of Law of Plaintiff Kenmore Woods, LLC" (Doc. 20) (collectively "Response") and the "Defendants', Upper Providence Township and Upper Providence Township Sewer Authority, Reply Brief in Support of Motion for Summary Judgment"(Doc. 25) ("Reply").*fn1 The matters are now fully briefed, the Court has had the benefit of oral argument and has made a determination as set out in its Order entered on November 15. 2010 (Doc. 29). In this Memorandum Opinion, we set out our reasoning pertaining to the order that grants the motion with respect to Plaintiff's constitutional claim set out in Count One, denies the motion with respect to Plaintiff's state law claims set out in Counts Two through Six, and grants the motion with respect to Plaintiff's claims for counsel fee set out in Count Seven to the extent that those claims are dependent upon the survival of Count One. Further, the Court has determined that it will retain jurisdiction of the case and trial of Counts Two through Six shall commence on Monday, December 6, 2010 as scheduled. (See Doc. 24.)


In its complaint, Plaintiff has set out a claim for "Denial of Due Process Under Color of State Law" pursuant to 42 U.S.C. § 1983 (Count One), together with state law claims for "Breach of Contract" (Count Two), "Misrepresentation" (Count Three), "Promissory Estoppel" (Count Four), "Unjust Enrichment" (Count Five), and a "Violation of Statute -- 53 Pa. C.S.A. § 5307(d)(31)(iv)" (Count Six). Plaintiff also asserts a claim for "Counsel Fees and Costs" under 42 U.S.C. § 1988 directly associated with the claim for the constitutional violation set out in Count One.

The facts around which Plaintiff has constructed these claims concern a dispute between Kenmore, controlled by a Delaware County developer, Robert DiDomenico, and defendants, over the question of Kenmore's claim for reimbursement for expenditures incurred in the construction of an extended sewer line (the "Kenmore Line") in support of a residential development project it was undertaking known as 211 Sycamore Mills Road, Upper Providence Township, Delaware County, Pennsylvania and operating through Kenmore Woods, LLC.

On July 5, 2007, UPT entered into a subdivision agreement with Kenmore approving Kenmore's plan with certain requirements, including that the:

Developer [Kenmore] shall create and install all sanitary, sewer and storm sewer facilities as shown on the Plan in accordance with the recommendations of the Township Engineer and requirements of the Township Ordinances and Specifications, and more particularly in a manner to ensure safe and adequate drainage of storm water and sewage from the said tract of ground, under or across the same, in accordance with said Specifications. (Exhibit 1 to the Motion, p. 2.)

As matters progressed, and upon the filing of an application with UPT for approval of a final subdivision and land development plan, Kenmore and the Authority entered into a Sewer Improvements Development Agreement ("SIDA"), dated August 8, 2007. That agreement set out the nature of the arrangement between Kenmore and the Authority and concluded:

Developer and Authority acknowledge and agree that pursuant to the provisions of the Municipality Authorities Act (the "Act"), 53 Pa. C.S.A. § 5601, et seq., including but not limited to 53 Pa. C.S.A. § 5607(d)(31), since Developer will be constructing or causing to be constructed at its expense an extension of the Authority's sewer system, the Authority shall provide for the reimbursement to Developer when the owner of another property not in the Kenmore Woods subdivision connects a service line directly to the extension within ten (10) years of the date of dedication of the extension to the Authority, in accordance with the provisions of the Act. Contemporaneously with the dedication of the Sanitary Sewer Improvements, Developer and Authority shall enter into a reimbursement agreement attaching as an exhibit an itemized listing of all sewer facilities for which reimbursement will be provided, which shall include but not be limited to all sanitary sewer facilities constructed by or on behalf of Developer in the rights-of-way of Sycamore Mills Road, Rose Tree Road and/or Providence Road. The amount of the reimbursement which Developer may receive shall be calculated in accordance with 53 Pa. C.S.A. § 5607(d)(31)(iv). (Exhibit 12 to the Motion, p. 6)

Plaintiff argues that this language imposes upon the Authority the responsibility for reimbursement in accordance with the Municipal Authorities Act ("MAA") or otherwise. The Authority points out, however, that any obligation running to the benefit of the developer for reimbursement comes about only "when the owner of another property not in the Kenmore Woods subdivision connects a service line directly to the extension . . ." and that this circumstance never came about. Plaintiff, acknowledging this language in the agreement, (without conceding any particular legal significance) argues that the Authority effectively controlled this conditional because the owners of the other properties who might have been in a position to connect their lines could do so only upon the direction of UPT or the Authority.

By early 2009, Plaintiff completed the Kenmore Line and was apparently ready to accommodate the connections which had been the subject of discussion involving the Authority engineers and Kenmore. Kenmore had an understanding from these discussions that UPT and the Authority would support connections from the Springton Lake Middle School (the "School"), the Lutheran Reformation Church (the "Church") and ten residences along Sycamore Mills Road (the "Residences"), and that these connections would provide a source of reimbursement to Kenmore for its construction costs. Plaintiff argues that it was upon this understanding and representations made by UPT and the Authority that Kenmore determined to incur the substantial additional expenses in constructing the Kenmore Line as it did.

Plaintiff alleges that unbeknownst to it, UPT and the Authority had already been in discussions with another sewer authority (the Central Delaware County Authority) to increase the overall sewage capacity of the Township in specific areas which would put the School, the Church and the Residences in a position where they would have to hook up to this new sewer line as opposed to the Kenmore Line. Plaintiff argues that by this conduct the defendants concealed and misrepresented material facts to Kenmore, have been unjustly enriched, have breached the SIDA, have violated the MAA and should be estopped from walking away from their obligations.

Defendants argue that the choice Kenmore made to construct the Kenmore Line as it did was motivated by apparent difficulties with other possible options and that the line it was required to construct for the development would likely have had to follow the same right-of-way that the Kenmore Line ultimately used such that Kenmore suffered either no or minimal damage. Further, defendants argue that the Authority was doing nothing more than "trying to find a way through a maze of conflicting interests and overlapping jurisdiction and still provide the residents of UPT an adequate sewer system" and that Kenmore entered upon this "hodgepodge of interests and jurisdiction" with the expectation that the only proper point of response from the Authority should have been considering the particular interest of Kenmore. (See Doc. 17 at ...

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