Maxatawny residents concerned about allegations, $5 million litigation

Patriot photo by Roxanne Richardson Maxatawny resident Garret Miller voiced concerns about the implications from the allegations against Mel Fishburn during the Maxatawny Township Municipal Authority meeting on March 27.
Patriot photo by Roxanne Richardson Jill E. Nagy, solicitor for Maxatawny Township, during the Maxatawny Township Municipal Meeting on March 27.

Allegations that confidential information was leaked to Kutztown Borough and concerns about a $5 million lawsuit brought about 25 concerned Maxatawny Township residents to the March 27 Municipal Authority meeting.

Allegations were brought against Maxatawny Township Board of Supervisors Vice Chairman and Municipal Authority member Mel Fishburn, alleging that he disseminated confidential executive session information to Kutztown Borough relating to a pending $5 million lawsuit against the township by Kutztown Borough.

The lawsuit relates to Saucony Creek Regional Authority, an agreement made in 2010 between Kutztown Borough and Maxatawny Township for the new sewage treatment plant serving Maxatawny. Maxatawny officials wanted to dissolve the agreement, Kutztown Borough countersued Maxatawny Township.

According to an October 2010 Kutztown Patriot article, http://www.berksmontnews.com/article/BM/20101027/NEWS01/310279979, Maxatawny Township and Kutztown Borough signed an agreement to provide for Maxatawny’s financing and construction of the facility serving the Saucony Creek Valley, capable of treating about 140,000 gallons per day. The facility was built on five acres provided by Kutztown Borough along Saucony Creek north of the borough off Route 737, citing a 2010 Kutztown Borough release.

Upon completion, a joint municipal authority, Saucony Creek Regional Authority, was to be formed by Maxatawny and Kutztown to own and operate the facility. Maxatawny and Kutztown officials believed the agreement would lower certain project costs, by using existing borough assets, according to that 2010 Patriot article.

The new treatment facility provides treatment to serve properties with failed on-lot systems in Maxatawny, and was meant to also serve as an additional sewage treatment option for Kutztown when its treatment plant reached full capacity, according to that 2010 Patriot article.

During the March 27 meeting, Nagy explained that in October 2012, after a couple months of discussions as to the impact of the SCRA agreement to the township and to the Municipal Authority, there were concerns that Maxatawny has the entire financial burden of the plant. Once the plant was constructed and they saw the PennVest loan document and sewer connections began, board members felt “we just couldn’t do SCRA from a legal standpoint,” said Nagy.

In October 2012, Nagy and Township Manager Justin Yaich met with Kutztown Borough Manager Gabriel Khalife and the Kutztown solicitor, “We said we can’t do SCRA, we’re out. We’re leaving SCRA,” said Nagy.

Nagy said the board asked for a proposal of resolution that “we were in fact pulling out of SCRA and made an offer of what we thought that might be worth to the borough, hoping to have some further discussion. That letter went out in November 2012.”

“There after, we did not hear from the borough. A year passed, no response, no counter proposal, nothing,” said Nagy. “So, at that time, Maxatawny Township Municipal Authority went through the connection situation, went through the permitting situation, all of the things as if SCRA were not going to occur, at the expense of the township because we had no response from the borough.”

“In December 2013 we got a letter that the borough wanted to deed the plant over not to SCRA, but to the borough,” said Nagy. “At that time a declaratory action was filed saying, ‘Your time is up.’ There was a provision in the agreement saying, ‘You do not act within 90 days all claims are forever barred and that’s what the lawsuit is about currently,” said Nagy.

Then, Kutztown Municipal Authority and Kutztown Borough countersued Maxatawny Township Municipal Authority and Maxatawny Township. Kutztown Borough also sued individual members including supervisors Allen Leiby, Heath Wessner and Melvin Fishburn and Municipal Authority members Michael Berger, Steve Wilson and Melvin Fishburn, but the Berks County Court of Common Pleas dismissed the individual members from the suit.

In response to one resident’s request for finding common grounds to resolve these conflicts, Maxatawny Township Manager Justin Yaich said Saucony Creek Regional Authority is not good for the township.

“It’s very simple why. You have 180 people on the sewer system, you in this room are paying for that, why on God’s green Earth would you sign that over to another entity who has no residents on the system?” said Yaich.

Yaich said they have tried to reach out to Kutztown since November of 2012. They would honor most everything in that Saucony Creek Regional Authority agreement. The only thing they don’t want to do is form another board, sign that plant over to another entity and allow another group of people to control the residents’ fates. He said there was the possibly that the majority of the board would not be residents or even on the sewer system. He added that they don’t want to give an $8 million sewer system to someone who doesn’t have skin in the game and that’s what it comes down to.

Regarding the allegations that confidential information was given to Kutztown Borough, Municipal Authority Vice Chairman Steve Wilson said, “It was made public during March board of supervisor’s meeting that there were 50 pages of emails procured as Treatment of Information Act which solicitor Nagy read one of those emails that by any reasonable reading would look very damning concerning your conduct sir and you have the floor here to explain yourself to the public about your conduct and your possible collusion with the borough of Kutztown to do a tremendous amount of harm to this township to the tune of up to $5 million,” said Wilson.

Wilson said if the borough is successful in this litigation, that $5 million would be saddled on the residents.

“I have never betrayed this township nor will I ever and, Mr. Wilson, after the last meeting and all of your accusations, so do me a favor save your breath, because I will never answer another one of your questions,” said Fishburn.

“Are you colluding, sir, with the borough of Kutztown to torpedo this township to the tune of a $5 million lawsuit now?” asked Wilson.

“No,” said Fishburn.

The audience became disruptive with outbursts. Wilson needed to remind everyone to respect the gavel as he banged it down repeatedly.

Fishburn requested from Yaich any and all documents the Township solicitor referenced that found him in conflict with any litigation between Kutztown and the Saucony Creek Regional Authority case. He was informed that the opinion letters were in Nagy’s possession and for her protection and were not township property. He then presented Pennsylvania’s Right to Know Act.

“If the agency contracts them to do work for us and they have any documents, it is the township’s property,” said Fishburn. “I don’t know what the board wants to do, but I would like a copy of that document and the allegations against me.”

“In this particular case, the township did not contract for that. I made that out of my bar and my professional conduct agency for my use only, not the township’s use,” said Nagy. “It was not obtained on behalf of the township. It was obtained on my behalf and therefore it is my document, not the township’s document.”

As her evidence, Nagy read an email from Fishburn’s attorney to another solicitor about a conversation that took place between Fishburn and his attorney over a beer. Nagy said that was information discussed exclusively, 100 percent, in an executive session. She said this is not allowed and that this was just one example.

At one point, Fishburn wanted it noted that he was not invited to the brief executive session held March 17 to discuss Kutztown Borough’s counterclaim.

Nagy said that her job is to protect the legal affairs of the township, and also noted that Fishburn had made a threat at the executive session held March 20 to sue the township.

“I can’t then have an executive session to discuss the lawsuit that you threatened against the township, therefore that would be my particular opinion in this case,” said Nagy.

Municipal Authority Chairman Michael Berger believes, “If we lose this $5 million lawsuit, it has nothing to do with what Mel says right now.”

Berger said whether or not Saucony Creek Regional Authority happens, it is not Fishburn’s fault; it was agreed on by many people before him.

About the Author

Lisa Mitchell

Lisa Mitchell is the editor of The Kutztown Patriot and Managing Editor of Berks-Mont Newspapers. Reach the author at lmitchell@berksmontnews.com or follow Lisa on Twitter: @kutztownpatriot.