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HomeMy WebLinkAboutLetter Lawer 1992 MCNEES, WALLACE & NURICK ATTORNEYS AT LAW 100 PINE STREET P 0 BOX 1166 n^T HARRISBURG, PA, 17108-1166 1992 TELEPHONE(717)232.8000 FAX(717)236.2665 BERNARD A. LABUSKES,JR. DIRECT DIAL'(717)237-5385 October 12 , 1992 John Szajna, Esq. Nassaux-Hemsley, Inc. 56 North Second Street Chambersburg, PA 17201 Re: R & A Bender, Inc. Dear John: Thank you for presenting R & A Bender, Inc. ' s request to revise Franklin County' s wasteflow control ordinance to the Franklin County Commissioners. I thought it might be helpful to set forth our situation in a letter for the County' s continuing consideration. Bender entered into a contract with Cumberland County to dispose of Cumberland County waste before it entered into its disposal agreement with Franklin County. The Cumberland County contract provides that Bender is entitled to increase its disposal fee to Cumberland County if a new governmental fee or surcharge is imposed at any time after the Cumberland County contract was executed. After the Cumberland County contract was executed, Franklin County decided to impose a County Administrative Fee of 25 cents on all waste disposed at the landfills in the county. The County Administrative Fee is obviously a new governmental fee. There is also no dispute that the fee was imposed after the Cumberland County contract was executed. The Cumberland County Waste Authority' s solicitor, however, is resisting our request for a rate increase to cover Franklin County' s Administrative Fee because the fee has not been imposed by ordinance. We have argued, and we continue to believe, that Franklin County' s ordinance does in fact incorporate the fee. For one thing, the ordinance actually incorporates the disposal agreements, which themselves unequivocally impose the Administrative Fee. See, Section 11 (b) . Further, Section 11 (c) requires each operator to MCNEES, WALLACE & NURICK John Szajna, Esq. October 12 , 1992 Page 2 pay over to the County "the County Administrative fee required to be paid to the County under this Ordinance on a quarterly basis." Nevertheless, because Franklin County' s ordinance never defines "County Administrative fee, " and because it never expressly states that there is such a fee that must be paid in the first place, the Cumberland County solicitor is being difficult. We suggest that the entire problem could be easily solved if Franklin County would simply amend its ordinance to expressly provide that operators shall be required to pay over an administrative fee on all waste disposed in the County, which shall start at 25 cents but may be subject to adjustment from time to time by the County. Such an amendment would not change the status quo in any way. Furthermore, such an amendment would frankly be in Franklin County' s own best interest as well because the way the ordinance is currently drafted, there is at least arguably no duty under the ordinance itself to pay an administrative fee; there is simply a duty to pay over any fee that is ever collected. (At least one attorney in Cumberland County is already making this argument. ) An amendment to the ordinance would bring the ordinance and the disposal agreement into line and would be consistent with Franklin County' s obvious intent from the beginning. It would incidently be of great service to Bender, which is simply trying to pass along a governmental fee to which it is clearly entitled. Thank you for your kind assistance on this troubling issue . We would appreciate it if you would pass this letter along to the Commissioners, and any one else involved in the decision making process . We will look forward to your reply. Sincerely, McNEES, WALLACE & NURICK By l ( � / erz and A. Labh cey, Jr. Is bcc: K. L. Bender