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Home My WebLink About99-00268 .. . Integfl P,'ntlnll'ncorpoflt.d 2.1 Hoy Road C.r/I"., PA 17013 717.7.4-8250 Phon. 717.249-17.11 FIX INVOICE AND PAYMENT SCHEDULE .. FOR INTERIOR AND EXTERIOR PAINTING OF FENSTERMACHER RESIDENCE I'fQject Invoice Date Invoice Amount Psvmellt.D1hl - INTERIOR 6/19 $ 6478,00 JUNE 26 INTERIOR 6/30 $ 5087.00 AUGUST 3 INTERIOR 7/18 $ 7751.67 UNPAID INTERIOR 7/31 $ 4055,50 AUGUST 10 EXTERIOR 8/12 $ 2885.50 AUGUST 25 Residence Total $ 26257.67* * All totals are computed based on time and materials charges * All Invoices were readjusted based on July 18th meeting PLAINTlFP8 EXHIBIT . REVISED INVOICE ""nEGRA PAINTING INCORPORA rED 111 HOY ROAD CAlfUSLE. PA 17013 yz , i f1.C Ui ~ -r..' ')$.~jlU 1 i' '17-''''250 Phon. 717.24101711 flu D<<lIJ 7/18/98 John Fenst.rm.oher 5232 Trlndl. Ro.d M.chlnlcsburg, PA 17055 This Invoice replaces the invoice dated .July 3, 1998 The foIowlng hi IUbmlltod lilt ply",."t lor "MO" rond."d to d.,e: Job De8crlpUon: fl.sld.nce Third Invoice Penod 6119.713 Tee 5 hou" LOCATION --,-..,...--....-... "oEsciiipl;iON- __0_' .,_.. fi!iice- . '----rOTAL 1 , man lotal 5.0 nours "pnme walll cllllng 50 1 5/2~ 2 men lotel 17.5 hours rime weill cellln 175 X $2 4 ,0 512e 1 man lotal 9.0 hours ftnlsh weill ceilln .0 X $25 225.00 5/261 man lotal 70 hOI~ ftnllh weill ceiling. .0 X 525 175.00 6/282 men lolal 6.0 hours ftnlsh walls cellln .0 X 525 160.00 5/29 3 men lotal 23.5 nours prep ftrst ftoor. II ra 3.5 X 525 567.50 -6/304 men lotal 32.0 hours Ie ftrst ftoor , r. 32.0 X $25 800.00 711 3 m.n lotal 21.5 hours ftnlsh walls trim 1.5 X 525 537.50 712 2 men IOlal 22.0 hours ftMlsh lnm ind noor 2.0 X 525 550.00 7 3 men lotal 24 0 hours ftnlsh trim 2nd noor 1240 X $25 eoo.oo ie . 7/17 lebor credit: reduction Irom $25 perhour to $20 L lor Ie.. upe"enced lebor perlorTnlng surlaee preparation 143 5 X 55 Llbor ror" -217. 3,97000 Mltltill. ~ lint & matenals -OESCRIPTiON . CHMOlis TOTAe- M.re",'o ro,,1 Pro/.ct rorli 925.00 4.89500 ,nflgre Painting Incorporated 2'1 Hay Road Carl'./e, PA 17013 717.7'5-'250 July 30, 1P98 John Fenstermacher 5332 Trindle ROed Mechanlcsbutrl, PA 17055 John. As a follow up to our discussion two weeks ago wllh you, Oule and myself, please Ifnd the corrected invoices, I went back end provided a day by day listing of hours logged at your residence, I also reduced the lebor charge for my less (JXperienced men from $25 per hour to $20 per hour. This reduction 18 based on dropping the hourly rate on two employees, These employees are not as experienced as the rest of our crew and account for a reduction 120.5 hours, The Ifrst Invoice will also be reduced. Tha reduction will be applied to the next invoice when submitted at the end of July, I thank you for takIng tha time to come out and enabling me to walk you throughout he project end explain lIla process to you, I have atways said the educatad client Is our best client. There 18 8 substantual amount of work to take 8 project from the drywall stage to the finished product, As you were able to seft there are several steps that could go unnoticed if someone wasn~ out on the job site each day, As to the overell cost of the project ( first & second floor) I project e total cost of $24, 000, The main factors lIlat drive this number Is the two coats of color in each of the rooms, number of windows, dOCfS, crown and chair rail, The cost breakdown Is as follows: First invoicfJ.., {to be revlsad)..,June 8 . June 18....,......,.,..,..,......,..$ 6478,00 Second Invoice {revised)..,..,..June 19. July 3..........,............,......,..$ 4895.00 v Third invoicfJ......,..,..........,....July II . July 17....,......,....,............,....$ 7751,117 v' Foul1h invoice projectl1d....,....July 18- July 31....,..,...................,....,$ 'Ul as <frsf\"O Finial invoice {second coat baseboard. after hardwood Install).......... $ 1175.33 (' 'l ;/~1 ;; PROJECTED PROJECT INTERIOR FIRST & SECOND FLOOR TOTAL....,$24,00Q,00 Cost savings potential for the basement would be to rely upon one color throughout the project or as we dlscllssed to have us spray the first coat of color on the /rim prior to /rim installation and after the walls & ceilinr;s have been painted, This would require then only one coat of finish paint to b. applied by hand to the trim, E.'derior cost reductiOn methods Include priming the siding prior to Installation. This process will begin on SatUfr:lay AllQUst 1st, We are also going to spray the Ifnlsh coat on the siding for the pieces being installed abOV6 ten 1'fH1t. If you have any further questions I can be reached during the day on my cellular phone 508-1745 or in the evening at my residence 249.1888, SIncerely, ./ FENSTERMACHER ATTORJllEYS AND COUNAND ASSOCIATES . SELORSAT LAW ' P.C. JOHN R FEN , 5TERMA DIRl!CT DIAl..171~~~54~QUIRE. .. nlr wmONr r~vr'N ',~L~BU nw PlJl~~5YLYA.'1A AlID , 1lIT1IAl r<::r; HAlUWlBURO loe LlNCO ornc! LNS HAIUWIDUR TREET (717) 545 ..0, PA 1711. _10 S ,:' { /tV V (-lA( t>rl2.. U. {k /; U/Ul <1.1.* o.f '" ~. - '- u.,~,( M YCi.-~ J:). ~ ry"f (J-r-,{ --!:fl d . t ;I~/ ray. IlIef ---hv- d.N-- 7; -' . ,r- _ (I # ' .." < r@1{f C.f.:J-~ c::f(1 r1!u. //1, C!A-7 ~ / - j _ I<au- .;7CV,/ Jr- tt-\ f::,'r. ~ /(41 ett --r: I /f -.I ~ (/; ,. . /1"- ,,0' ~ 'f'OCO' ~ (~, -i'r"j;! <- qt.c\-, cW:'- ( > -, !.- Ld- ..=r I l /C '^ cd C ,,().A'i e _ d . --{(, e v-{)o1 -+I., <.J .( (/1,-,- re"^""~ ---(veL C C ~ 7J..s '"^ ci(, h OA. r-- 6 cW+ 0+ k'O") ~- _I<o!.f ' ,( '" ".~ ,.e Ie C l '~'1 j,.. I !, --rJ.<-^ *'^- ;:C il,,",~ "J {Ii{.iL'- ck.C-i (Iu- - ;, of-( ;7A< c/l IL' ;;11 d1;1 7 f JtaK "'fJ t<1 c:. cI 1'/ -h OK- rg,'" -iG -f,f< -f i-rp ,J/~) I ~er:~'/( <:)~ 5~; ~RAYSTONE TAVERN MECHANICSBU~~ TRlNDp LE ROAD , ENN5Ylll p.J?171 691,5400" 1'\NIA 17055 171" 691,5441 Pl1'.INTtFPS EXHIBtT 2- . I. OCEAN cr 26 rv OFP1Cn ~EAN ~y AVENUE I:;;;;' NJ 08226 ) 391.9461 - Int",,,, p,'nt'nglncorpoflted 211 Hoy ROId a"rll.I., PA 17013 717.7.308160 Phon. 717.140.17'8 Fax INVOICE AND PAYMENT SCHEDULE FOR INTERIOR AND EXTERIOR PAINTING OF LAW OFFICES OF FENSTERMACHER AND ASSOCIATES PTQject Invoice Date Invol,-flAoIount PavmentQl1e. Greystonelnterior 12/22 $6,662,00 January 5 Greystone Interior 1/4 $ 5000,00 February Greystone Interior 1/12 $ 4018.47 February Greystone Interior 1/25 $ 4500,00 February Greystone Interior 2/10 $ 7515,00 March 3 Greystone Interior 3/11 $ 2750,00 April 21 Greystone Interior 4/30 $ 4500,00 May 6 Greystone Exterior 5123 $ 4375,00 June 9 Greystone Exterior 6/19 $ 3030,00 June 26 ---....--.....-...--..-..~---..._----...._---.._........_-_...__.._-------.....-----...............----....-..................................-...... Greystone Total $ 36,350.47" " All totals are computed based on time and materials charges PLAINl'IFF'S EXHIBIT ..;,\\,(,;3 L. \L ,- . ~" ~, , , ';1;1'1' ..1 ( . I Integfl Pelntlng./ncorpoflted Z.1 Hoy ROIId Carll./e, PA 17013 717-796-'210 Phone 717-Z4U7" FIV( FIRST INVOICE HOURLY DETAIL FOR FENSTERMACHER RESIDENCE DA t1!l EMPLOYEES HOURS Monday MI Jim 9,5 John 9,0 Gal}' 9.0 TUfls 4IQ Jim 9.0 John 8,5 Dean 8,5 Wed et10 RIc 2,5 Jim 10,0 Dean 8,5 Thurs et11 Gary 9,0 Jim fl. 5 RIc 4.0 John 8.0 Dean 4.0 Frl et12 Gary 5.0 Jim 5.0 Rio 5.5 John 5,0 Mon et15 Jim (1.5 Shawn 8.5 Tues et18 Jim 9,5 Gary 9.5 JOhn 9,5 Wed elf 7 Jim 10,5 Gary 10.5 John 9.0 Thurs et18 Jim 5,0 Gary 5.0 John 5,0 Labor Totals 215 hours X $25 per hour $ 5375,00 . , ;, ~!~~:: ::~~~~::i~;~'" T : '.' I _.~y;' 'lie,') '~;_d .. ,_~.....~l. I '1 !', I' ...., I __..I ,. '" hj' I , :: : \-. \ f\0 ;~ ;i '~ '1\ " "::l :.....' ,"\ ~ \l~ ~ >. \ \ r:. ';.';', '=:)"J':) ._. 'I :...... I;) ~ - ;~, "', . ('.. '" ,:'..- .' -, ~ . "', -- "...:. i ..... .._- ' :. ~ ~i-.:r r~' .' "'\~I ,~ J' " ,'. . I.. ~!:i'_" :. ' ~. ~ I " ..';'1 ..r..... J ...._~-... . ""l. _ ,'. -_.-.J .. ~ --, , ------ , .-.... . ~~l_~-,~." ~~-~ -'.,.,~ , . . .:-;: - - '-- . ,--.-., .. ~'''T,t:--:''~r::-:~ ..~-.:....': ~..\:,'_':.l~ :~..,.~, ~'..;, . ~. ! I I, , . .j-.,... ... _.. ...,.~ . ~\.-., :o~ ~ ",' 0:- ...... J " ~ 'J ~ "" c:. 0, C:l :,::. \ I \ . ,.,. . i.v __., y., ~" '" \0 ~ ~ ~ \~) l.... 10.... .... '" N N '\ ';' 'I % ~. ~ C'-f',.(-.::. .~ ~ ~: J 4J ~ '-!> -.2, ~ iO ~. O. ':l '..., Cl l-) M Iv) (j- 0- ~. <;:). ~l \~ ...:, ~ ' ~ " '"., ~ \ I' '" <'). '::> " rz f.: ,OL ~ J r"'/~p J V\ "'. ~ '-l ~ -. '-,) 1'- ~ .t --") I' ~ ~:m'_c .,_ ~ ':t-'-.~\ "'- . - ." -:,p~ '<'> - ') ':l " <:) I.:i <:> .... ..... \ \. ':) (.) ~ ;:) t'- r' . J ~ ~~ \14 1 · V' ~ -, ~ ~. r " ...,/&- ---.. . ..:r .." 0 ;:) '" :"I ..... ~ \ \ 0' <) ~ f....' "I) " i' ~~ '~ -7 'J ") ~ ;:, -s:,';:). ,.., " (-j \ ' \ () I)' O' " 't;), '\) ... N ~~ ~ - .... .... j 1 -1~ .,J ~ "':.:~-'-',~~~""""''''l..rl I .'~-'::.;'r:-' 'P";,,, ~..~I. \~ \;~ - ;-- .~ g, ~'.~ ')0\' .r:'\ -- "( ~~.!" - r , : ! ~ .-.!) '" C) , . IV') S J ~ C!. ( I , ~ 0 Cl " " :". N ~ N -.. '- -. ~ ~. \ 'v) ~. q 'J f) " I') '. <:l r-. '. " --. N ' , N I ..... N I --. - ') I I :l ~ 0 oJ ~ ...... ~ . , '~ -...S> ~,fJ --J ~-j~~ . - -\ ~ PROPOSAI.-, , ,j /" / "-<>; ,,;> ,(I' ~ /:. ~;,.~ ,. ',' J ~:fl;Ll ,,,fl.:' '7 /i~ ( . '1 .-2,.-1 .; .A''' i//'~ l-'."'r, / 'f, , u__,....____~.._ 11II,'u'iFiM-i.ji'l ,:J ",HUIWI I 1'1I0['C"'AI ';IJIIMlllli, 1(' 'NAMI'''-'-' .. >>r.H~. ,ii"~"4&.<:i.&.d.< AIJIlIU~;;' , . "'7 ~ ..I(?Q.,_, ,'" /{jr~C&. Ln2?~~~ /~. / 7(')~-c:;> I PIIONr'tlr, WUIII\ 1(,111 l'IIIHJlIMI illll -^(JTj{IT'~;-(; P' '''\lij'j /,/~(.~c:'~__ .;;k?'.",; ct:::~~~-r.i~_ [1/\11 (If 1'li\N/:; !\Il(IIIIH:i -...--...-,----,---~--.. ....,.......... --.-...-----.. . "..-. ....--- ------.-.- ....-....'.---..A-::;;z...~...---7':F: -.--,-.. Wo Ilorehy propOSfJ 10 fllrlll~Jh t110 ~t1.'i ilfld pfJrlorrn 111(1 _I~ 1l0C(}SSary frJf Itw cornpleli(HI 01 ~h=~____~~~~~__._. ,1t4P(/ ,~ ~~~~4<e::.~:t ~~#1~}~4~-,l - (J;; ~..Jrd-~'}" ar.. ,~7:. . ~~ ~= ,", --~~ ,~~~' ...i? ~a.~~~.'" -- V '~'~~ >' ., ~ - i ~,,- t..-'i ., - '..~,.fr~~1!. _c:~, - ---~ ~~;I 'I ~ <E~ .. -Z7 _ ~ ~d.A 4 ._ _ _ _ __ ___ ________ _ _" _ ,.. _ _______ _ ___, _ __________n___._ -_~~.K~~;;:~~-~~z>>...: ~ ~~&1L _ ' ____u____., nn____ ______ __.,...._~_._,_.__......~ ..~~_~_____.___.u__._.__.__~_.___u....__.__.__. .____~._'_~u_~__~__~________._.._.__~__.._.___._~_____ All material is guaranleed to be as specifiecl, and the above work to be performNI In accordanco wllh llie drawings and specifi. cations submitted lor above work anel completeclln a substantial workmanlike manner for tho sum of _________,__________~____________~_________ __ __ _____,_ ,Dollars ($~dCJc'),dC> wllh payments to be made as follows. II d(? Respectfully submitted ~u../~r-<:.C-...-,-------~,--- Any ul!umlioll or (j,wialioll trom ahova :>pccifwuliuns irwolvinu u~lril costs will he a:caculed only upon wriUflll ordor, and will h('COfllO Ill! lHlnl ctliHgtl OVOf il/lO ahovfl Iho tl~tillla!tl All ilgraomullls conlinW)(ll upml sltiko'i, ,Ie. eioen!", ordeliWs hoyondolll GOl\1IoI Per Note ,-, Tllis proposal may be withdrawn by us if nol accepted within _days. ACCEPTANCE OF PROPOSAL The above pricus, spociflGllllons and conditiolls me satisfaclory anrl aro horeby accoptod. You are authorized 10 do the work as speciliod. Payments will hA mmlo as OlltlillElfI ahove. SI[lnatllrn Dato Si\Jllaluro D EXHIBIT r:Ad.ltl",NC ;lillllfl(l \l^1 H 1~11I', ~ PROPOSAl. ---10-- 2' . PROPOSA 1.- // ",. //' V,,(L/~ 0/ ~', ~/;""V;:I~' ':1 ,~./ ,<1/ '. " #' .,., "'- .1 <<4ti r 1',' -_..,._....--...........~_....-...,--_........_.._-------- --.- j;fllll'I!';o\I/VI 1 ,IHlltl') I 1'1I01'O':^1 ~,IIIIMIIIIIII() ~~~~~~~" ..12/~" /-":v>._,.__..~: '? . 'i A uZ'i-g".t'"':"~~ I' A (? (I S :S' PHON!' No V \VOllh 1111111'1 IIIOIIMI11i\1 Aiirl(li";.~': ~ "', . A() I'fU:. ",~d!~ Ilfdi I/. . 1~"II(ll'j (IAII- (1I l'Ii\N'; I\Jll:IIIIILI ~J~~(;-'~;;;i'll~I~;~;;;;O~I;;I';'~;'-(~~;'I~111I111.IOlahOI;;;";J~SHIYf;)~"II~ti[I;'~;f' '~;.ftfE~' . .. . t', ...;' ....u:r.., ~..,'Y";~' u4t'~t-:;p~-p ~~~- -:t: ~ tt . .c-~/d.ti-...ri~~~'1~ ,c..,. 'f'.,.f'44"~n.__ ~~~4. .... . "" . .,6uY~zf.u!L,,~___ .L__ ::=,lliP~e.~ ' ~~~~Vr.2Jtk#~c-~Li2~L _._ ~~~~, ~..... :~1;.~fi,;f!!#7/i-~- .~~ ~ ""A<>~'~~~~~~ .#JU.< -. ~,.~.& - zP~~~do~AI;1a.f'-(J...-)--._ . ~'-"i!~i.L. u". . _ _ _ _ _ . __. ____ .______. _ -~~~~~~~~e~- t::::::DQ~ ~..,Zil-,;,(?-. --.. --. --.. _no.. _, ___. uu_ ---~-~--._~-_..._._.__..__.._----_..._----~._--~---....~----..._--------_.-..._----_._..__.._--_.._.._~-- All material is guaranteed to be as specified, ~nd tho ~bove work to be perlormed in ~ccordance with the drawings ~nd speclfi. callons submitled for above work ~nd completed in a substanli~1 workmanlike m~nner for the sum of ------'------~._,----------__.____ Dollars ($.2f ~, ?-7,c.c:, with payments to be made as follows. Respectfully Sllbmitled&~:.4~~____ Any allolfl!io/\ or dflvlaliofl 110m ahovo flpnc:iliCllllOIlS involvillg o~lril l,;09ls will bo o~ocllled only upon wrlllan order, tll1d will !locoma an O~lfil chal(jU Per OVAr find abovo Iho ustlmalo. AI) flgroOtnOtlls corlllllgtlll! llpon strikos, ilC. r.idolll~j, or doli1Ys hoyoncl our 1:0111(11/ Noto - This proposal m~y be withdrawn by us il not ~ccepled within _ days, ACCEPTANCE OF PROPOSAL The above prices, spocific~tions and conditions are satlBf~clory and aro hereby as specified, Payments will be made as ollllined ~bovfl. accopted. YOll am aulllorized 10 do Iho work Sinnalwo D~te Sir/naluro D EXHIBIT I':I\IL-lIHS NC :lflll1 .~i() "'Mil INI!';., PROPOSAL 5. In the spring of' 199H, Defendants retuincd Pluintill' to paint a home Defendunts were in the process of erecting. 6. TIll' contraet thut Plaintiffs und Defendunt entered into was oralund not . reduced to writing, ulthough Pluintiff luter issued invoices t:Onsistent with the parties' ugreement. 7, Plaintiff und Dclendunts ugrecd that Pluintiff would be compensated on a time und materials basis, H. While perfllt'llling work on the project. Plaintiff issued various invoices to Defendunts for work it hud completed, 9, Fot, work performed. Plaintifl' issued an invoice dated July 18. 1998; a true and correct copy of the afore:JUid invoice is attached horeto and designated Exhibit "A", 10, Pursuant to an oml modification of the invoice (Exhibit "AU) betweelJ . Plaintifl' und Delendants, Plaintiff reduced thc amount sought under that invoice to Seven Thousand Seven Hundred Filly-One Dollurs and Sixty-Scven Cents ($7,751.67), The aforesaid invoice relllains outstanding and unpaid, II. In proceedings before District Justice Placey, Plaintiff incurred the fbllowing costs: (a) (b) tiling and scrvice costs stenogmphic uppearance fce $113,00; $ 50,00; $163,OQ -3- elIIJII'-^-'" INVOICE' INTEGRA PAINTING INCORPORA TED 2'1 HOY ROAD CARI.ISLE. PA 17013 ;5 717.785-'250 Phon. 717-24"'7" F.JI CMI'17/18/98 John ".nsterml/oher 5232 Trindle Road Mech,nlcsburg, PA 17055 r".ltlIowlnu Is submltt.d lor pey",.nllor .,.Mc.. rend.red 10 d.t... Job De,cr/ptlon: ,Residence Third Invoice Pellod 716.7/17 Inlerlor 0' residence ?94'tot81 hOU~___~___~___ COCA T10N-- ___"'__h___~_____. .-.. -/ii;sCRIPTIONu-------.-------- 16 4 men total 3. 0 ~ou~s . prep rst oar _____.-1/7 3 men loIal270 ~2.'!r~,_-----.e(ep' flrSI flo~_ 7/8 5 men total 45.0 hours finish lIim 7/9 5 m.en lotal 4~,5 h-ours !'!!I!. & liqUid mask 7/104 men tolal 32.5 hours first ftoor windows 7/13 3 men lotal 27.5 hours first floor windows _.-z!'14 3 '!!'!!1Jotal iT} hours prep-lir_sl floor 7/152 men total 18 0 hours prime~'"~~_~eilin 7/162 men 10'.8118 0 ho_ui~_ sand, ~nish ceiling.. !!)2.2 men 10Jal 18 0 hours sand, finish walls -PRlce--'-- o 2 70 X $25 5.0 X $25 7 5 X $25 25Xl25 7 5 X $25 75>:S25 180')(525 180 X $25 )8.0 X $25 L,bol Tot" ---jOTAL-- .0 675. 0 1125.00 1187.50 812. 50 687.50 687.50 45000 450~ 450.00 ___ 7,35000 --TOTAe- -- - 16 M.teri.ii- .. . ..., --.'-'DeSCRIPTION--.-----u' -CHARGES-' Paint & malerlals M,ten./s TOf,1 proj.ct Totll_ 80167 8,15187 EXHIBIT 'A' COUNT II JOHN ~. FENSTBRMACHBR v. INTEGRA PAINTING, INC. BREACH or CONTRACT 33. John R, Fenstermacher and Integra entered into an oral agreement whereby Integra would provide painting services and supplies for the entirety of Fenstermacher's residence. ,34 . Fenstermacher has paid to Integra the sum of $11,373,00, which Integra billed as allegedly for work performed. 35. Integra performed substandard work and billed excessive hours and costs for such work, 36. Fenstermacher terminated the services of Integra on or about September, 199B. 37. Subsequent to Integra's termination, Fenstermacher was required to pay for another painter to perform work which Integra had previously billed, but did not perform. 38, Fenstermacher expended the sum of $4,485.00 in services for which he previously paid Integra. 39, Due to Integra's failure to timely finish the work they had been paid to perform, Fenstermacher was delayed in 6 ocoupying the residenoe, resulting in mortgage expenses being paid for an unoccupied home. WHEREFORE, Defendant/Counterclaim Plaintiff John R, Fenstermacher respectfully requests this Honorable Court enter jUdgment for him and against Integra Painting, Inc., plus award all costs and interest. COUNT I II JOHN R. FENSTERMACHER v. INTEGRA PAINTING, INC. BREACH OP COVENANT OP GOOD PAITH AND PAIR DEALING 40. Paragraphs 23 through 39 are incorporated fully herein by reference, 41. The contract entered into between Fenstermacher and Integra contained an implied warranty of good faith and fair dealing, 42. By the instances of overbilling set forth herein, Ihtegra breached such duty, WHEREFORE, Defendant/Counterclaim Plaintiff John R, Fenstermacher respectfully requests this Honorable Court'enter 7 ,.f1.ct-<t1.01- ~t-.. "'lJ.'C, 'I.~'l 'C," C. -.lei: a.i:e lJ.~ \.lJ.'I.~ ei:c co>j.~'C, lJ.~o. 'C,'l.0~ ~0i:~lJ. 'I.~ a.i:e ~e'l.~ 'C,0 '0-e '(,0 lJ.'C,'O~e~ 'C,'I.{\~ 0'C, ,e\.lJ. %~ ~\)l\ ;. '2>' i:'C, 'I.~'l c'O '0-ei:e'O'l lJ.~o. lJ.C~'Oi:' ~{\0~'Oi: 'C,ei:~ o'l.~~ e ~'O{\0 ~oi:'O~ \.'Oo.~ \ ~. 'C,'0-'O y.~o~ ~0'0-~ 'C,'0- 'I.~ o~ ~'l '\, ~oi: '00'<' 0e'(' '0-e '0 \.0e ~e.c'C,0 'C, ,<,0 'C, lJ.~'l ~lJ. '(,'0-e oi:i:eC 'C,'0-a.'C, C. ().~o. C 'C,e.~o. \.1; ~lJ.' 'C,,,>j.e o.ei:0 o~ '\ >j.~ \.'C,'l.'00 ~'C,~ee' ",e\.~et. ~e{\lJ. e.>j.'C,'0-0i: y 'C,'0-e 'C,O 'C,o ~o~ . eC'C, ,clJ.'C, 0>j.'O) "0).~> ~lJ.> ~oi:{\ >j.~0 .",ei: ",e.G" 'C,'Oi:'" ~e~0 ~\ v~'L~ ~~~~\ , ". ~.:JI",,"' I .~_t_t""__. .~_3,40,_,",. I .1'1lnl_._lII1d-""..._oflhltloml.........~......IN. l .~.:l:iotm..lIlI~onlofllllllllll/piooo,....lho_M__'1Ot I, .=:.iw..n~_..,...__....__. I .ThoIlol....R~...ohoWlO_...llI1lcio...._lII1dlhodaN !I -, '--, j 13' MeIe Addr.,..cltC!i... . _ ' ! I,lteggo' ~4h 'r;~c. I 201 I!,by ;lW~t1 1:, i ca.rJhl\:i'~';':",qlJt~' '..\ \ "'"0.' II I -0:;' PI.. I /..1> I '"f.'1 Oi. ~ I "'- I I I II' I X :.. PS F If ioq!lOtod Z 089 20" en ~ Reoelpt for - Certified Mall _ No IrUIUHlOcO Covorllgo Provided .II'If.' ,001101 uBolm InlftHHUiolHII Mull ISfltl RU\lflUi(l) i I.,inll ____~4___._~__.. 8! ~ 11 g ,I ~! le -'- /ll,!I".,.I!<w"'I" '",,,.....,,1<) III WI""'. ~ fI,\I..I)LI,~,"t.d !tlll'"" /('''''''101 "'''~;~~;;;-;0'~::-: [);Ih~.. dad ^,j;f,,,,;<<,,,, A..hl"";', [(\J^I ['H\,III' ,f, I i'''~ ' $ f'fJ'ill",H~ III f Jell!- I-~ -rt)' I Jl J; I + n l_'J 0 I , i;) .'1 I '. , c-, I c'" ',n ~.d " , ; ',,!Fr! t. l "I ;'-.) L' , 'J 1- )('1-' .' ,.\ , ") ;::~hi ~.- ~~ .. .. 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'r", /J ""4- )/, /110 .~ c; ./0 I'/t\.r l' . /., '(1\0 /) -l'", o 'I.' 11,,,<;1' lj":1'4t: <?s' 'f'1> ""n; cc'., $. .", 'J oJl 1% (/II(~ :/t\.rj> i1 /:L 0;.. I; IA ,/t "t' C' 'v;' 1(1 ot\.r '/.' '1'",. h'Oh .1 'r", 'r", O/' 0. C/, /J", (i 4-. P,Z /'IA , '7,;. , vG" ";J' , 'h 1l6'/) /11(> (i(1 . II;(iIJ lit< i?J' I/J' .v(il /Q '71.1 . ,,, b l'1; . ~v I 1C;0' '71;<;1' ~Ol; , ' /J", Cb '(ir/ "c:.. .V, " , 'I", 's 'I vll /: . 4, I,i. IJl,v Q" % ~%J' P<?;Q. '11/ Ch 't\1 ,II. 'c' "'1. IQ of' <{~t.. ~, "I 'Sa 1(", 'J; 1'1' q" ~ S rl '() o/' "'fl ,,~? /J.. "0 Po i'" ~ 'I'/,' "6' 0" I;z 'I;, \f)h 00' SI'A ~ ~ co t f~ " -) ~~! ~\, Kj(; I ) .:-r: () ..". II.: r~: lJ~ I ','j '1\ ,- .~, ~\,J "( ~..,~ E'" ('''-J C![i ( ,~ .,J' ..J (,.. : ' i { i~l [;'1." .., 1;,' !/1.. .., " ~, " IL frl ~~'J 0 (I\ U the commercial property, as well as replace numerous windows, and repaint various areas of both the residence and office. II. Statement as to Basic Facts as to Damaaes. The cost of remediation is approximately $24,000.00. In addition, monies in the amount of approximately $15,000.00 was paid to a third-party painter to finish the work on the residence, III. Statement aa to PrlnclDallssues of LlabllJti and Damaass. ^- Whether Integra owed a professional duty to perform in a reasonable and workmanlike manner. B. Whether Integra's failure to perform to such standard has damaged Fenstermacher. c. Whether Integra's failure to provide services in a professional manner is a breach of contract. 0, Whether Integra's overbilling and failure to complete work billed for is a breach of contract and breach of the covenant of good faith and fair dealing. E. Whether Margaret Fenstermacher is an appropriately named defendant. IV. Summary of Leaallssues. It is not believed any significant legal Issues exists, as of this time, as to admissibility of testimony, exhibits or other matters. 2 '/AN-07-2002 MON 04:22 PM BuzaON DAVIS LAW OF FlOES . FAX NO, 717274 1752 Plaintiff initiated II district Justice acdClO to reQOver for the unpaid services In October of 1998, Despite favorable award before both a District Justice and an arbltrallon panel. the amount remains outstandlnll. In response to the collection suit of Integra Painting. various sult9 and, eJailTl$ have been raised by Mr, and Mrs. Fenstermacher, lIS well as a company controlled by Mr. Fenstennacher. Blue and Oray Acquj~itions, Inc. In the cOUlltersuit filed in th~ colJectilm action of Integra Paintinll, the Fenstcnnachers claimed that Inte~a Painting billed them for work they dJd not perfolm (breach of contract). They also claimed that Integra was negligent in causing damages to certain windows in the home. No supporting documentation of claimed repairs has been produced, After the filing of the District Justice actioll by Integra Painting. Mr, Fenstermacher also initiated II seplU'ate suit on behalf of Blue &: Gray Acquisillons, lhis suit related to work done by Integra Fa/ntini h.~ being retained to paint the home of Mr. and Mrs. Fenstennacher. Thll prior work related to 1\I!r. Fenstentuwher's business offices, The work performed by Integra Painting at that site was through a subcontract with Merit Homes. n. STATEME1Icr..QE.FAC'{S: DAMAGE~ Tbe outst<UldiQg invoice owed to Integra Painting is In the amotUlt of $7,751.64, Integra Paintini also seeks Interest. docket costs and costs before the dJstrictjustice ($163). With regard 10 the eOUllterclai.n:ls of Mr, and MIR. Fensteml8cber in the collection suit filed by Integra Paintina. the FenstelmllChers have produced no invoices or Calculation of lIIe alleged costs to repair the window damages, It is also believed that the Fenstermachers have not identified the specific aspects of the work billed by Integra Palnting that they claim w,u not performed. -2. ./AN"O"l"'2002 HON 04:23 PH HUZGON DAVIS LAW OFFICES 4. Ron Nye, Account Manaaer. Eberly Lumber, US West Allen Street, Mechanicsbllrg, PA 17055 5, MlItK Scheller, Scheller Hardwood Floon, Inc" I 059 Columbus AventJCl, ternoyne, PA 17043 VI. LIST OF Ii;,yUUI'TS 1. Summary and associated invoices of Integra Paintinll for Fenstermacher home, ' 2. Sununary and ~soclllted invoices of Intearll Painting for office property. 3. Eberly [umber Invoice of February 16. 1999. 4. Various photollraphs, 5. Undated leller of John Fenstermacher. together with enclosed check. VlI. STATUS Of SETTLEMENT NICOTrA TIO~ The Fenstermo.c:hers have not offered anything towards payment of Integra Painting's outstanding invoice, Ti othy . I-luber, Esquire Attorney .D,lI4n31 525 South Ei&hth Street Post Office Box 49 Lebanon. PA 17042-0049 (717) 274.1421 ,'-tlameys for Integra Painting, mc, 8 ~-: J ::>11':, 0 " '......-\ -:,; "I',J ;', w,..L.., ". ~t l,'~ ',.101. ~b "~,I "'"' '"' '0" '"" ~F.', -' ,', '"'(''' - '- .... ,~(1 .. ',:.:.1 ~. .......1 :::1 ,") ~r, "I. -4. l'laintiff Initlatcd a district Justlcc a~:tion to rccover for thc unpaid services In Octobcr of 199H, Despite Iilvoruhle award bef(lre hoth a District Justlc,: and un arhitrntion panel, the amount rcmains outstunding, In response to the collection suit of Integra Painting, vurious suits and daims have been ruiscd hy Mr. and Mrs. Fcnstermachcr, as wcll us a company controlled by Mr. Fenstcrlllllcher, Blue und Gray Acquisitions, Inc. In the countersuit libl in the eollcction nction of Intcgra Pninting, thc Ilenstel'llluchers clllimed tbat Integra Pulnting hilled thcm Ihr work they did not perlllflll (hreneh of eontruc!). They also claimed thatlntegrn wus negligent in cnusing dmlloges to ccrtnin windows in the home. No supporting documentation of claimed rcpuirs hns been produccd, Allcr the filing of thc Districl Justice nction by Integi'll Puinting, Mr, Fenstermacher also initiutcd a sepnmtc suit on bchalf of llIue & Oruy Acquisitions, This suit whited to work done by Integra Pointing !1efor~ being retoined to puint the home of Mr. and Mrs, Fenstermacher, The prior work related to Mr, Fenslermucher's business offices, The work perlhl'll1ed by Integi'll Puinting ut Ihnt site wns through u sllhcontrlH:t with Merit Homes. II. STAn:Mf;NT OF f'ACTS: IlAMA(;I<;1i The oUlstuuding illvo!l:e owed to Intt:graPainting is in the lll1lOunt of $7,751.64. Integi'll Puinting also seeks inll:rest, doekel costs and costs bellll'l: the districljusticc ($16~), Wilh regard to the counlcrclaims of Mr. and Mrs. Fcostcrmuehcr in the colleclion suit filt:d hy Integra Painting. thc Fenstcnllachers have produced no invoiccs 01' l:ulculutlon of the ullcged cosls 10 repair Ihe window dumages. II is also belicved Ihut Ihc Fenstcrmaehers huve not idenlified the spl'dlic aspccts of Ihe \\ork billed by Integra Painling that they daim wus nol r perllll'll1ed, -2- the commercial property, as well as replace numerous windows, and repolnt various areas of both the residence and office, II. ~!I!l.nt I' to BI,le Fleta 18 to Dlmlo". The cost of remediation Is approximately $24,000.00. In addition, monies In the amount of approximately $15,000,00 was paid to a third-party painter to finish the work on the residence, Ill. SUlt.ment I' to PrlnclPIIIssU8S of Lllblllty Ind Dlmlge.. A, Whether Integra' owed a professional duty to perform in a reasonable and workmanlike manner, B. Whether Integra's failure to perform to such standard has damaged Fenstermacher. C. Whether Integra's failure to provide services In a professional manner is a breach of contract. 0, Whether Integra's overbilling and failure to complete work billed for is a breach of contract and breach of the covenant of good faith and fair dealing. E, Whether Margaret Fenstermacher Is an appropriately named defendant. IV. Summlrv of LeollJ88ues. It is not believed any significant legal issues exists, as of this time, as to admiSSibility of testimony, exhibits or other matters, 2 C~1i ""~/CI4 'fj -'1""0 ~ Oi: 81:, '. '0"." ~ Co /h, . lil?ct ",y Ihiilll S _ .5 ..., Co .... , '<.. "'. Of" .... .", ...... /h ""'Y '. .~b .~ .~, "lie" '" "%" A . . ""'* " .... ..., ... r "", " o. s"'" %s, ~ . """"" 'Y S.... .. liiI/1, ltd(/, I1dlll11 b 'e, tossed {Js '0" 'Y 'nltlllllg iiI , 110%: "lIe 811~go 'fIll '1/, Oiil,,,,s lOlhy J Ii. ' f?eect C' lIbet € 5<8.~ 'hiilfle/i L sq, L y. 8th , '711b&r ebiilllOIl p. Street & COylo L ' :<:/ 1704< ' lei, f'E:IvS'f~ l?A,ttjCIi/2p 'T..q""O -'lSSOCttj 'f/28 By. "--_ 'P.C -- ~=, ,--,..- , A1ii1rki/.s C' , 'ne,y <:::-:-_:::.:.:::::~~ '!:'f-{~~/y~fj;~/,fj,_!;< -"l'L:iL '1:..... ~'_........'.......:--.....- . I hereby certify that the compensation of the albltrators is being paid herewith. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P,C. By: ~~~, /./.."",. ~~..;?-. ~_.-'''----''2'_' _ ::...L .,c' ",-'-" ~_.-.:::......_ Mark K, Emery Supreme Court I.D, #72787 5115 East Trlndle Road Mechanicsburg, PA 17050 (717) 691..5400 Attorney for John R. Fenstermacher, Margaret A. Fenstermacher and Blue & Gray Acquisitions, Inc, DATED: February 1) 2001 2 is Inno way limited In scope to such relevant evidence so as to render It overbroad 8, Inte[~ra's purported I8Hson for such a broad request is to determine If other subcontractors on the relevant construction project were not paid, That issue has no bearing on Integra's broach of contract claim, Further, there are less intrusive methods to obtain such information, such as obtaining the Information directly from the subcontractors C, Integra's subpoena requests documentation outside the scope of permissible discovery allowed under the Rules of Civil Procedure, II. Subpoenas to Pennsylvania State Bank and Fulton Bank A Integra's Subpoena requests documents not relevant to the instant litigation or reflsonably oalculated to lead to relevant or admissible evidence, and is in no way limited in scope to such relevant evidence so as to render it overbroad, B. Integra's request for documentation regarding financing of construction projects, which would Include financial statements of John and Margaret Fenstermacher, is meant solely to harass and is propounded In bad faith C, Int(~gra's pl.II'portmj reason for requirinll such Information is to determine if the construction project went over budget (See Exhibit "A") 2 ~J(""8Ir ~ ' \..~ " " , ", , . '.~.'. " , ) \'..:...- ',", , . \ I' \ '\ 10 :\,\ \\Y ~.;.). " -., o " \,;,. " ~ " , PRAECIPE FOR LISYING CASE FOR ~RIAL (Must be typewritten IlJ1d sutmitted in duplicate) TO THE PRmlOtUrARY OF ClA'lBERI.ND COUN'l'Y Please list the fOllowing case. (Check one) (X ) for JURY trial at the next term of civil court. for trial without a jury. ------------------------------------------- C'.APTION OF CASE lentire caption rrust be stated in full) INl'EX:;RA PAtm'!OO, INC., Plaintiff vs. JaIN R. P'ENS1'ERMACHER and MlIRGARET A. FENSTERMACHER, - Defendants -------------------------------------- JOHN R. FENSTERMACHER and BLUE &. GRAY ACQUISITIONS, INC., (Plaintiff) (check one) Civil Action - Law ( X) Appeal fran Arbitration (other) vs. INl'I!l3RA PAINI'IN:l, INC. The trial lis t will be called on 12/31/01 IlJ1d ( DElfendan t ) 1'rials comoonce on 1('28/02 Pretrials will be held on 1/9/02 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwi th a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 99-268 /" 98-6814 Civil 19 Indicate the attorney who wl11 try case for the party who files this praecipe. TiJrothy J. Huber, Esq., Buzgon Davis Law Offices, 525 S. 8th St., Lebanon, PA 17042 Indicate trial ~uunse1 for othor parties if known. Mark K. Emery, Esq., Fenstormacher and Assoc., P.C., 5115 Trindle RO!ld, ~hanicsburg, PA 17055 1'1115 case is ready for tria L -" Signed. , L.~___..::.--;___ Print Narre I Tirrothy .}. Huber, Esq. ,____ Date. October 29 I 2001 Integra Painting, Inc. AttoIlley for. ." \.\', \, " , \' ,', " ' c:\ ~,..\ ((0. ,-':'".' (r) \' ,\;~ ' t~ ~-'') .~<. L~\'~>~ -<<\ .: .0,'.;) \l., -\ t.t ,\,(0 ,.,(\.. ,~... t.: V " -') u " ,) ~ .!I € N \'::' .. :::>.~ ~.5~\ .- 8,* :S: ~~; 0- 7- (j)2 t ('< .n :;2 ttll\ I tc.~ tdl\ p; \liH U-T 0.. ~ I,: Ol:t , liS a- t. 0' !L ., tcwl.MclNwlALf" Of PUIIIITLYA"'A couifoiCcii"~oii,iiAi'. NOTlCI 0' A"IAL I ' , I FIIOM _iAl ot".,C' DISTRICT JUI"CI JUDGMINT ~__~_~"'~.'~_____~"_~~_ ____..~u~"."_ -~~.__..__.'._-~~~--- _.--~-.,,----...........,..~ -.'- COMMON'UAINe. 'IIJ -. j flll I' J vi 1 ')';;-; nn "_"___"'~____~r~__ ,,'. .__'_._~~~______,.....~.,~~~_____ NOTICE OF A"EAL Nolie. I. gl_ that tho "!lP"Ilant has filud In lhe above Court of Common Pleo. an appeol fre." the I'Jdgmotrt r.nder.d by tho DI,'ricl Justic. on d. dat. and in tho co.. montJonod below, WlI'ln"I{[,\Rr..-"--~~-.'-'-.- -,' "--..."....,--.--~..--'-----...--'--..,..---......,....-'-' '-Jlml1iIlll,' Nl:lOIl-NAMllll1IT-~--'--'-'-- !','!II!, ", 'iil,1 It, 'i ]. i,' I,' ',; , I ' . i, I 'ti 'ARIeI110f AmUANJ" _._._~~_..""-- .....,.- ~..._-~---~~'-~.__...-7ilv~-""-~--- ., .---. li''''-1! '-_.'-'~---'-~ III 1'.' L !f Ii' ::'i ! 1 :'lld ~'-"""-'----J:-' I -e"A'gCif(Pla"-,If) - '._._-_..~~--,.~~---" i I ,',I' \;1 i i i iiI', i ';' , I li! . . ' , ~ ~ NO -"-, --'-''''..--..,----~--~~-..------'-[~lrLANnlII1I!'mliIl"Y1inomr---' I ., ii ~~ 1~ _-=====--=- ~___"'"..~~_~:....__~?~=-~' This blackwln 1. Iignod ONLY -~~ "fj;i, ;;';-'01100 I.-;;'qulred u~~'-p~'R',cjl.i.P. N<l~ /I appellant was CLAIMANt (see fa. R.C.P.J.P. No. 10081. This Notice of Appeal, when ",ceiwd by the Di.lrld Ju.tlce, will oporote a. a 1001 (6) In act/on be/ore Dlsfrlof Justloe, he MUST SUPERSEDEAS to the judgment for polI.llian In thl. coso. FILE A COMPI.AINT wlfhln twenty (20) days alfer -----'Slii""',iiiiDmiiihiiilO/ar~(n5e,XliY"--'------ //lIng his NOTICE 0/ APPEAL. 7L,*~T'- -,--._-- , '.1.', "I II' , ,'i' :[ 1;,'Ii.' \[", ---------jiifAECIPE TO ENfeiCliiiLETO FILE COMPLAINT "AND -RULlTO FILE (This see/Ion 0/ toon/o he usoo ONLY when aPfJlJl/anl was DEFENDANT (see Pa, R.G.P.J.P, No, l00I(71/n action he/ore Dlslt/ct Jus/Ice, IF NOT USED, detach f,.om cc."y 0/ notice of 8PfJeal to be seryee' upon 8PfJlJllee), PRAECIPE, To ....othonotory En"" rule upon ,,,_, , I I (.~~_~L..!..._ ) if . .__,_,__,_ ,oppoIIoe(.), to file 0 camp"'lnt in this appeal 1 ,.. Nwoo 01 fl{f.)OlkJO(s J (Common PIoo. Nn ......2_(~::"L'2J.~i-"--'-~_~,-'-'''-__) within twenty (20) day. of tor .orylce of rule or .uffer entry of judgment of non plot. 1,;1,,' i i ",1,,1 i i II I,', RULlI To ________:..............~__,,_____'" oppoIIeo(.), Namo 01 awe11OO(S) .#;f~~"~;'1 ." -""j,.., "~~ ~,/ :'i":~~;~:;-,'::- :..'~~~~~ ",,_p~'_ ,~~' ~r.i-o-......._n . Signafute 01 8IJPI1IMt or his atklmey 01 agent (1) You en notified that a rule i. hel'oby entered Upoll you 10 Ale a camplolnt In 'hi. oppeal within twenty (20) day. afled'" ~ of ,",vic. of thi. rule upon you by poroonal.orYice or by cortlfied or rogillored moil ......' ~." ":'.\\'" '.. ,J j 'i " ,1/ 'I, . (2) W you da not file 0 complaint within thi. limo, a JUDGMENT 01' NON PROS WILL BE ENTERED AGAINST YOU, ": DaM: (3) Tho dcmt of ,",yice of thi, rule It .orylce WOl by moll I. t~ dote of ""'i~ngc ,ll'In. I'" ,19:!-, "F II , I I' ( i . I . '\ ' , ,', \i ,.t. ( 1.,<,' , J ,1 "~Vl i, :~ ~o/Aop""':Yr . ' K:1ftCJlIl,84 COURT FILE C_IALlM Of ,INNln"AN'A ~_._._- ._._._~~._---...._~,..- . COUI' Of COMMON PUA' , NOTlCI O' APPIAL '110M JUDICIAL DIUIIC, DISTIIICT JUSTlCI JUDOMINT ._---------.....-.._..._-_.._-_..._~-~---~--_._--_.__...,. .,,<"------- ",.,. ,C~~~~U~~~" ,.~~~.1f!_B,.C j '!:Ll,.T" rm NOTICE O' APPEAL --.,...~. ..-----.--------- -", ',.- Nolie. I. Qi",", that !he appellan, hat lilod In ,he "hove Court of Common PIoo. 00 01'1'.01 from the ludgment render.d by the o;.lrkt Ju.tk. 00 !he daM and In !he COle .....,!lo".d below, -J:~~,::~gft~.~':.[IC;IH t~r:!;(~I:(1r" . ._, .m_____",_ -TMAr.~~~I~O..t(~ ~:~. PIflcey) ~QOfI"""lL4Nl . .,--.--~-_.._____..________..._,..._.u_~____. ... ..---.----.ctfy.-----.-.-- .__~_..u~_.~..- ZPCODI 5115 Efts! Tdnctle Iload Ncchunl.cshl.lrg PA 17055 "" ~;;--'.-I~r~:~;ii;~;[lJl;tl;II',,' In<~.--''-----::' "Ohl:~<~nd ~IUI~;,:~':--Fenstermflcher ~_.. ~-...---- -,...., '''--"'...-------,, '-----ral1jfN'AfflllANl1lrllnltN'IYllfMl'..I Ml:Ii:'I<K";-'l:l1lElry, t';Bq. 9i1-53'! /".., . ./ / ' ,_7 n.. bIo<kwiM ~ ~ ON~~-~;~j;'~~~f. ;~q~i;~d~.,JO;'P';-R'(:Pjp.~~8;~~~-;;p. No.- 10081. ThI. Notic. of Appeol, when lec,"""d by the Oi,'ric, Jv.tko, will operol. o. 0 1001(6) inaction bo/ore District Justice, he MUST SUPERSEDEAS '0 the Judgm.nt lor po.....i"" in Ihi. co.e. FILE A COMPLAINT within twenty (20) days 81t91 ------'---S;gniililiiiorProffiiiriiiiiiiyOi'i5Ciiiijy-'" 'u____ filing his NOr/CE 0/ APPEAL .~_._~,._~.~_._~~.._~~--.__._......._---_._"..~._"..~-------..-...__.~------_. -----'---,RAECIPE"yOENTERRUffTOFiLi COMPLAINT ANi)"jiUi:n(HiLi-'---'-~----- (This soot/on oI/o(m /0 be used ONLY when appollanl was DEFENDANT (see Pa, HC.f'JP, No, 1001(7) In action belOfe Dlstrlcl Justice, IF NOT USED, detach (rom cCJJy 0/ notice 01 appoallo be sorved upon appellee), ..IAICIPE. To Prothanolory E_ rule upon __Integr~'!__JjjjntJIJg.l_Inc. _______~___,_..________ ,oppellee(.), to file 0 comptoint in thl. oppeol NMIO 0' awe/Ioe( $ J (Common PIeo. No. _2..?::! Ii ~__C i~1.~" -r",r.m __,_) wilhln twenty (201 doy. oller ....vic. of r~1e or .uff.r entry 01 judgment 01 non pm. ---:'~~~~-,. -- '--- SqlatlX6 oIl1pptJlBffl Of fIlS StftvneV 01 eon IULE. To ~~~~~~_[~pa~~I:!_!~:~~-'--_._~__ , oppe/Iee('I, Natoo 01 8(f)6/1oo(...) (1) Yoo ore IlOtlfled that 0 rule i. '-by entered upon you to flle 0 cOll'flioinl in thi. oppeal within lwenty (20) day. oller the date 01 ....vic. of thl. rule upon yoo by perlOllol ....vice or by certified or "'9i.t....d moil. Dalo.:, (2) H you do not file 0 complaint wllhin 'hi. lime, 0 JUOOMENT Of NON PROS WILL BE ENTEkEO AGAINST YOu. (3)T...doteOI..,Vic.O,f,lhi.ruleif....vk.WO.bylTlOill.lhedoIeOf~..,..~ r/ d. ..u,1an. 15, ,19_'l~. /,....:.:0--fl-r{,t~~ C AQf'CJ\J.... COURT FILE TO BE FILED WITH PROTHONOTARY ~ . .... I --...-... pl\OOF OF SERVICE OF NOTICE OF APPEAl ANO RULE TO FILE COMPLAINT _-..----~ ----._--"~.--~.__......_--------- " "", """., ", ,......,.. M "., '" '" '" w" "" " , "'" ,,,,, ^' "" "''' '" "", ",,"" ,," ''''',,' """." "'"".. ,., ",,"" COMMONwrAl III or f'HIN!\VI VANIA COUNTY 01' ; .. A.fFIPAVIT: IIII""I,y 'oWl'''' '" ,,111111\ \IIl,1 I <,\lIVOrl , , "1'('" II'" 1-",,\lleI J\i"I'G(' (1,-,;I'III,\\I1r1 \I\\If"'" Oil U \'V p"r.olllll "",vlel1 U by Icmtlilml) Irc\\iSlmo\l)l1\all. ,\II\\lIlr', '\I1l1 UI'"11 Ii'" "1'1'111\1"', (,,,,,,It)1 -..,..,..' "" 11\ .1,,\ II'/ 1'""",,\1,1 ,,,<vI<," l\ \ly \<'01111,"(11 llO\l\<;\!lf\III) ",all, 911111ior'. ,u"ulpt o\\O"IIUll herelc' , I."" "" '''''' ".., , '''''''',' ",,' ""',, '" ,,'" , ,."", ".."" ", ,,,,,,..,,'" '" ".. ""''''' """"" ,,' ""..", ",,,,, "" "".",,'" ,., '" ~."''' "," ",,',,"" ,,'''' ,,",'" "" ,,,. , II "' """...., "" "",, l.l "' ,,,..,,,,,,,",, '"'',''''''' "''' \ II W,"V "I "'" tH"'" ,,\ AI'I'''''' "ul1lfll"" 1'1"....' ~h' (rL'lltl (If ~Il/v/lail !1~(L\\l\ l\\t(\C\IlH\ IHI(llh\, 11\di\; <,\'\\(\I1I'~\ lilCt\I\.I\ llt\d\ hod \\IIH'\(l . .~."____-'__' ,"__ _.... _~ ,._ .__ ... c" ".' - ..."- .------.......- SiglltttlHV of (I"Wrlt ',Wi 1\\1.1 i^lllllfil\J) ANI} "~I }I\:\CIIII\\ D 1\11 (\111 NIl'. rl-Ile, . \\'1,.... I'^Y (\1 ~l'(I",jI,I't. "j ,;1/" Ii l.ltl",-,', \'lh'_f,.~Hli",\'d \\,!,,'; I'I'H'" Tllh)piflflj,]II' 1'\.-.-'--'-' M'I uolt'tI,j~;,\;(.';1 "'.p,,,"', ,q, (-- ( 7'. ". crt ~ ~ t. (~ ,/; COMMt:lNWEAL TH OF PENNSYLVANIA C NTY OF: CUMBBRLAND ....U-tlI.1 No,: "-. ~._~ 09-3-04 bJN.m.: Bon. THOMA8 A. PLACKY ""'".. 104 8. SPORTING HILL RD. MBCHANICSBURG, PA "~pI~... (717) 761-8230 17055 ---~~---- ATTORNBY DIP PRIVATE I HARK K. BMBRY, B8Q. 5115 B. TRINDLB RD. HBCHANICSBURG, PA 17055 NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NAM' ."'ADDR... fiNTBGRA PAINTING INe. -, 281 HOY RD. CARLISLB, PA 17013 L ~ VS. DEFENDANT: NAM. ."'ADDIl'.. fFBNSTBRMACHBR, JOHN a, BT AL. -, 5115 TRINDLB RD. HBCHANICSBURG, PA 17055 L ~ Docket No,; CV'0000539-98/ ~._ Dale Flied: 10/13/98 ~ J THIS IS TO NOTIFY YOU THAT: Judgment; -.nm. DHlPRNnll.JoIII1 [!) Judgment was entered for: (Name). II'RNA"'Il!A"ll.~RRR. .J'OJQI R !iI Judgment was entered agalnsl: (Name) TN'I'RIlRll. Pll. TN'I'TNIl TN~. In the amount 01 $ 0.0... on: o Defendants are jointly and severally liable. o Damages will be assessed on; o This case dismissed without prejudice. O Amount of Judgment SUbject to AllachmenVAct 5 of 1996 $ o Levy Is stayed for _ days or 0 generally stayed. o Objection to levy has been flied and hoarlng will be held; Date: Place: Time: (Date of Judgment) _ (Date & Time) 12J22JQA . . Amount of JUdgment Judgment Costs Interest on Judgment Attorney Fees Total $ $ $ $ $ $ $ .00 .00 -&0 .00 .00 Post JUdgment Credits Post Judgment Costs =======:.:lllll== Certified Judgment Total $ ANY "ARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF. APPEAL WITH THE PROTHONOTARtY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL .DIVISION. YOU MUST INCLUDE,., COPY OF THIS NOTlqE OF JUDGMENTfTRANSCRIPT FORM WITH ~~."O~~ OF APPEAl.. n~L. Date \. ' 'oJ ~":' ,ol~;i~ustlce I certlly that this Is a true and correcl copy of the record ~f the proceedings c;ralnlng the lUdllm~~1. ' l' ,\ ' I... 01' J I ----"-'--.-1- Date - \ -"0-_.__ , strict ust ce \ ... , "J, f. My commission expires first Monday of January, 20b4, SEAL AOPC 316.96 NOTICE OF JUDGMENTmtANSCRIPT , CIVIL CASE PlA/NTn. F: HAM!: .'Id AotlflHW fJ:NTBORA PAINTING IHe. .., 281 HOY RD. CARLISLB, PA 17013 L ~ VS, DEFENDANT: "AM".nd Aoun,.. r;BNSTBRMACHBR, JOHN R, BT AL. 5115 TRINDLB RD. MBCHANICSDURG, PA 17055 L I Doel;et No,; 'cv- 0000539.98 Date Flied: la/13/98 C'QMMOf-lWEAl.TH OF PENNSYl.VANIA CO~NTY OF: CUMBBRLAND Mag 01'1 No 09-3-04 OJ Nlm.: HOf!. THOMAS A. PLACBY -.... 104 8. SPORTING HILL RD. MBCHANICSBURG, PA h.p",..(717) 761',8230 1'1055 AT'l'ORNBY DBF PRIVATB I MARX K. BMBRY, BSQ. 5115 B. TRINDLB RD. MBCHANICSBURG, PA 17055 II THIS IS TO NOTIFY YOU THAT: JUdgment: ~JLR.LAI~rFP [i] Judgment was entered for: (Name) -INT~nRI\ J!ADl'1'..I.N(LDlC-..__ [iJ Judgment was entered against: (Name) -P.ENSTRAM&C'!HRR, .TQJIlL1L__ In the amount of $ 7, A'lll "7 on: (Date of Judgment) 12/22/qA . . (Date & Time) ---------- ",~.)i."'!'",'":JI~~,,\:i.~~ ~\;r,-~~I\HJ.:,i'.'.,..j' b;li'l::i\i.,, ~..," ) ':', t", "1 o Defendants are jointly and severally liable, o Damages will be assossed on: Amount of Judgment JUdgment Costs Interest on Judgment Attorney Fees Total o This case dismissed without prejudice, O Amount of Judgment Subject to AttachmenVAct5 of 1996 $, o l.evy Is stayed for __ days or 0 generally stayed, Post Judgment Credits Post Judgment Costs o Objection to levy has been flied and hearing will be held: Date: Place; Certified Judgment Total $ Time: " 'l .J . $ 7.751.6'( $ 128.00 $_ .00 $ .00 $..7. 879.j.1 $ $ ===========::; ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTeR THE ENTRY OF JUDGMeNT (lY FILING A NOTICE OF APPEAL WITH TltE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS' ~"'L~~lIl,qN. YOU MUST INCLUDE A COPY OF THI!l NOTICE OF JUD.GMENT/TRANSCRIPT FORM WITH~FlriOTICE B"f'-APPEAL, U-)\l~\llI _ Date __~-!\. " " ' ,;",t " " District JlI~t1qe I certify that this Is a true and~r~~t copy of the (ecord f the proceedings COJlt~lng 1110 judgrnE!nt. _...L '. ",-,,,.: ___ Date ,--,--..-~.-.1 ._,_____.._____,_:~,~ ,4Jsl~ct ,Justice My commission expires first Monday of January, l, 04 SEAl. AOPC 315,96 f ; - r: j,,- ..... (,;~ ~-': 'fIr (.) " Cl (0 tr; ,:.'.... (..I I ti:" I.d Ll. il) r"'.J J ~\J II.I. - ~j U l:~) V " ~ ~ ~ ot- , 1..1 .... -s;: ~ .~ Lt "'l:, lL. 1-; .' ),;,- <6 ~ 0- r.(<, ":r- ~ b ')- ~ '- I \'\. ~ -- .1\ 3f' ":;,j ~ 4, Allmittell, ... "oJ"y .,,"'''..... .~ ''',' """"'''b', '" tl . II lis I:llse l'enn~YI ' ., '''''Y "",...". "'< . . "."..",,, """Y P""II " not reco...ertlhlc in " I Os II ~Olltr;'et IIC"IIII S '" . . .. ~ '. Iim< "'_.. '~,"",""".. '''' "" A 2 . . '.. '~~Jik ~, I,. . (/112 (I'II,SlIper, 1994) . , /I,,,..,, ""ilI>. AI/""" . . "'Pp", "'''''.. 'ON A.Zd II" ""-'--'-!!.!~!!!IJ...J.!!!,..J-,!!., .5()4 1\.2</ 3/5 II' S '" . . . "" """. ''''' ,. R r --1~-",,~ ('.."','",;". . . ~'~~<l/ ~~,C!!l1JJ!i11U'dl1f" 454 1\,)(/ 19 " , J~-8!.., """i, N,,,,,,,,,,, M. ' . /I "",,,"',. 19'21' ~ ~------!l1J1{!lJI~'iJ!JJ1IJ....ItI.~lIrllllec C !4....&;,QJ!JJ;,d:'"Miller ~1 I) -", (" I' ---="'-!(!-.----.,..!!,' 15 /).~C.4'h :147 (/992). ~",=-,,~, "~""I 151 (/'JH~ , ' . ~); IIncl Versatile Me I "'''"",. 1.'0.1 /Ii./>. "fl'". ""i. ~-~~" 69.1 fl. 'I11C elllim of /'JllilltiJ1~ 'I , " ,011/ U I,,,,,,,t I ' . . '., l'rmllc leI' 1111</ Ill. , IIc" WIIS /II the li'rm 11/' 'I 1'1"1 lie ~ ('my AC(/Uisltion~ . I IIrc to IJ 'rf ' " C Ollllll COII/mct in 1111 II 1'0 r' w,.. " ""'''' i" 'b" 1:"",pI.,,, (C". '" P '''', ".."". AlII""'.b ''''re llIlt I) lor ncgligcncc relllti,l / I Ii", ' . . """"',,,,, . I "" ''', ''''''.' "IT"., b ."''''''. II." '"" . CI II Out lli/lllllg(. 10 Win(/ows lit thc '. , """"" i, 'b, "''''''' b. . '""" """P'''. 11. "''''''1':., "" " "'"",' ,,, ,'" "m", ""''''Ny "". f . '. IIICr('li1re, </e/llY cllIlIJllgcs IIrc n t . 'I . C 0/ hrellch of COntmct 1111<1, o 11..../1 IIhlc II) thc IIJlllter, 7. I )enil'</ 0 J . II fie COlltrllry, f'llIintill~ /' I ' . . ", ""'" '''''b., (" . "'II".. "'''. ,,,,,"", Will",,, , " . . . . '. '" "",. II", """1/", lll.~c COIl.~Oh(lil/l'(/Witll,'t I' , 01 Pllrpo~cs I' /' c",," '" "nk, "I."",,,,,,,, 11 '.'. . . " "'"'' ""Y ''',,' "',/by II. ' , J'J, In the IOllowing respects: ' (II) In I\c/ion No, 'JH-flH I 4 , ' '.. , I hl/ll/I/ls Were rille I t 1'1 ' I 0 1 C II COIIJP/llitl/ hy the Irothollotllry Oil ,l(lI)e 15, I 'Jl)l} 1\' . ' , (OIlIPIII/l1/ \\'lIs not rccei"'ed hy thc Irothonotllry IIn/ll JUly ~() 1l}'J'J I ~ , , 1/ (eluy of lilleen duy,; IJeYond the tWenty (h,,,., PI' ' I <I . ,.. O"'/( C lor in the Ull/c.~ ofC,' 'I I' ..., rocedure' , ~2.. (by In Action No, 99.268, Integru l'ulnting propounded Interrogatories und II Request lor Production of Documents directed to Delcndunts on April 2, 1999; Integru did not receive unswcrs to thut discovery until July 21, 1999, u deluy hcyond the time pcriod provided 11)1' in the Rules of Civil Procedure of eighty duys. See Af1iduvit of Sllrviee for discovery of Integra Fenstermacher and the cover page, reflecting the dute of receipt of answers attached liS Exhihil HB"; (c) By correspondence of Dccemhcr 27, 1999, and January 19, 2000, counsel for Integra Painting Inquired to whethcr the mutters were within the arhltratlon limit und, therclllre. could he submitted tor urhill'lltion; u true nnd correct copy oflhe ufllresuid lettcrs are uttaehed us Exhihil He", By letter of February I, counsel for the FenstennudlCrs and Blue & Gray indlcnted thut they could not respond relating to 1IJ1~ mutter In controversy (see letter of February I also included as part of Exhibit He"; By further letter of Murch 15, 2000, counsel fill' Integru Puinting asked thut the mutter he presscd towards trial. Further correspondenec wus reeclved Iroml'Ounsel for thl] Fcnslcrmuchers and Blue & Oruy of March 24, 2000, requcstlng uddilionultimc. Scc Exhihit HD"; Counsel 11)1' Mr. and Mrs. Fcnstcrmacher and Blue & Oruy pcrslsted in not addressing thc Issuc, Further eorrespondcm~e of June 19, 2000, was lorwarded to counsel. See Exhihit HE"; ,J. Counscl for the FCllsterllluchcrs ulld Bluc & Omy did Ilot cOllcede Ihut the muttel' wus un urhitrutioll cuse untilleltcr of .IUllc 30, 2000; U hllC ullll corrcct of suld con'c~lp(llldcnc(~ Is ultuchcd us Exhlhit "F", As u .'esult, counsel fill' Intcgl'll pl'Ol11ptly filcd uPetitlon Ihr Appointment of Arbitmtors on or uhout .Il.1ly 9, 2000, The cnnduct of Petitiollcrs thus deluycd these uctiolls Irol11 Dcccmbcr 27, 1999, through .!untJ JO, 2000, IItotlll of I ~6 dllYs; (d) Following an advcrstJ dccision helilre un urbitmtion pancl, 1\11'. und Mrs, Fenstermucher IIlld Blue & Omy fil(,d unuppeul. Thereulier, hy letters of April 25, 200 I. und MIlY 14, 200 I, counsel Ihr Integi'll Puinting asked und inquired us to whether the mlllter wus relldy to list for triul. By reply ()/' Muy 7, 2001. and .Iuly J, 2001, enunscllhr FCllshmnuchcrs und Blue & Omy indicutcd the mutter was nnt reudy fill' triul and rcqncsted u dcluy in listing; u truc und con'ect copy of the suid letters of April 251h and Muy 71h, 200 I, ure uttuched hereto ulld collectively I11l1rked us Exhihit "(I", By further lettcr of .Iuly 25, 200 I, (,ounsd Ihr Integru did not list thc cuse lilr triul in vicIV or thc exprc~;s desire of opposing counsel to tukc discovcry, Tlmrculicr, counsel thr Intcgrn sought to tukc Mr. Dymski's deposition hy lettcr or August J I, 200 I. See do('umcnts uUuched us Exhihit "II"; IInd (c) Accordingly, counscl till' Intcgra wus not uhle to list the multer ulltilthc l11uiling or u Pnwcipc on Octohcr 29, 2001. r('sulting In u deluy Ihll11 April 25,2001. through Och\her 29, 2001. -4- INTEGRA PAINTING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNS Yl.V ANIA ; CrvlL ACTION - LAW vs, JOHN R. FENSTERMACHER and MARGARET A. FENSTERMACHER, NO. 99-268 CIVIL AFFIDA VIT OF' SERVICE BY MAIL 8 \.0 0 \Q "11 f po :i~, ~gl -0 "'-, <1)21 (jjr; I Tl~ :s:~': UI "(I ,.)~ t'~CJ -0 :J,! " ~~ :r ,.--,~,J - ""fri .. ~ N ~ ~ Defendunls COMMONWEALTH OF PENNSYL VANIA) ) ss: COUNTY OF LEBANON ) I, KAREN A. NEE, an employee of the law finn of Buzgon Davis, 525 South Eighth Street, Lebanon, Lebanon County. PelU1sylvania, Attorneys for Plaintiff, being duly swom according to law, depose and say that 1 mailed on April 2, 1999, by regular mail, in a postpaid envelope. a REQUEST FOR PRODUCTION OF DOCUMENTS OF PLAINTIFF DIRECTED TO DEFENDANTS and INTERROGATORIES to Mark K. Emery, Esquire, Fenstennacher and Associates, P.c., 5115 East Trindle Road, Mechunicsburg, Pennsylvania 17055, attorney for Defendants. ~. Ct' "- -t.-~../ .. ~ (KAREN A. NEE) Sworn to and subscribed before me this 2nd day of April, A.D., 1999. arv-Publ' N(l'yii! ;;';!of'iI I Cheryl K. Au, ",n ~IG:orl Public Lub.J:lon, i.,J,;w:JIl'::,x;ru My Commi3slon f~:~~:(:,~~__J~I't ~~.~~?_.. IXHIIn' I "(j" ..;,,__;~~" ,If :'i,,'.~,<l'. '.."'\ ;-, fillL.TU.lL.fldill1TIl" f. IN!2];;_o...'l'Q-1^11~.!'l1I:;lW.ES. .EMm llQIitLE1:;tlS'!'illlM.A!.;.l:Jllli Direct Examination by 11r. EmBI:y CroSS-Examination by Mr. Huber Redirect Examination by Mr. Emery RecroSs-Examination by Mr. Huber 4 22 38 42 .9M1UI::.L.Rl F 1 LIP P..Q Dix'eet Ex. on Qua]:lt. by Mr. Emery Direct Examination by Mr. Emery CroBs-Examination by Mr. Huber Redirect r-:xanrlnation by Mr.. Emery 44 45 58 67 ~ Direct Ex. on Qual. by Mr. EmBry Cross-Ex. on Qual. by Me Huber Redirect Ex. on QUill. by Mr. Emery Direct Examination by Mr. Emery CroBs-Exanrlnation by Mr. Huber Redirect Examination by Mr. Emery 68 72 75 77 96 103 lli12E1LTQ. ...illilllll..l.1'.S FOR 'l'li.lL.flJIIN'l'IFF .il1.J:lN'I' I F I ED ADMITTED 1 - Third Invoice 2 - Letter *** *** 3 3 EClli....THf. DEFENDANT 1. - InvoicH *** 105 2 - NOT IDENTIFIED/ADMITTED *** *** 3 - Photograph 18 105 4 - Photograph 17 105 5 Photograph 17 105 6 - Photograph 17 105 "I - Photograph 20 105 8 - Photograph 20 105 9 - Photograph 20 105 10 - Estima te 45 105 11 - Estirna te 46 105 1.2 - Photograph 90 105 13 - Photograph 91 105 14 -- Photograph 91 105 1.5 - Photograph 92 105 16 - Photograph 92 105 17 Photograph 92 105 ":) /'""'\ 1 ~ebruary 11, 2002 2 Carlisl.e, pannsy1vania 3 4 (Whereupon, the following testimony was heard 5 after a receBS at 10:47 a.m.) 6 'l'HE COUR'l': Any other wi tneBses, Mr. Huber? 7 MR. HUBER: No, Your Honor. 1 wanted to make sure 8 that 1 moved exhibits 1 and 2. 9 'I'HE COUR'I': I think they are. P-l an 2 are 1(l admitted. 11 MR. HUBER: The other thing, Judge, I wanted to 12 make 5 and '7 of thl;l answer filed in this mattar part of the 13 record in this case. Would you want me to read the paragraphs 14 into t.he record of the complaint that were admitted? 15 'l'HE COURT: The complaint and answer arB, in fact, 16 part of the record. 17 MR. HUBER: 5 and '7, paragraph 5 says, In the 18 lJprlng of 1998 defendants retained plaintiff to paint a home 19 defendants were in the process of erecting, that was admitted. 20 And paragra~l '7 was, plaintiff and defendants agreed that 21 pl.aintiff would be compBnsatad on a time and material.s basis, 22 and that was admitted. 23 'l'HE COURT: All right. 24 MR. HUBER: We rost, Your Honor. 25 'I'HE COURT: Fi.rst witness. 3 ~ ,.... 1 MH. r~MEHY: 1'hank you, Your Honor. ]: call John 2 l'enBLerlllachur. ) Whereupon, 4 JOHN rmNSTmRMACHZR, 5 having b.~n dUly sworn, t.stiti.d as tOllows, 6 l!IR~'LIXAHmM'IQU 'I I1H. F:MEHY: ,101m, we' VB talked about a residence 8 that obvIously you own. We'vtc also talked about. a Grayst.one 9 office building. Who owns Graystone? 10 THE WrrPNESS: 11 my wife Peg and 1. 12 TIm COUR'l': 13 corporation? , 14 THE WI'I'NESS: 15 MR. EMERY: 16 space to the tenant? 17 THE WPPNI~~SS : Blue & Gray Acquisitions owned it, Blue & Gray Acquisitions, is that a Yes, it is. And the lease space, who leas8s that J3] un & Gray Acqui ai tions leases it. 18. MR. EMERY: Okay. And now, Lhen~' S already been 19 testimony regardinn a point in time when you asked Int.egra 20 Painting to no longer perfonn services. What were the 21 circumstances surrounding that discussion? 22 1~E COURT: Before you get into t.hat so that I am 23 clear on this, do I understand tlwt the work performed in t.he 24 leased space was donG not with a direct contract between Blue 25 & Gray and Integra, but with the direct contract with 4 "";"- ,- -- 1 Mr. Kurtz? 'l'hat:. wa.s not t.imo und matedllle; Ie that correct? 2 'I'IIE WI'I'NESS: 'I'hat was not time and materials. I 3 know that, 4 'I'HE COUH'l': Okay. And the remainder of l11ue & 5 Gray was timEl and mater:lals? 6 THE: WI'I'NESS: Yes, it was. 7 'J'IIE COUH'l': I just wanted to be clear on that. 8 BY MR. !HEliX I 9 Q Again, if you can just tell us the c:lrcumstance~ 10 that led up to your decision to ask Integra to leave the 11 premiseB. 12 A Integra had been hired by Med t Homes to begin the 13 office project, to work on the office project. And after they 14 were working on the office project, we asked them to go and 15 move to the home project. l6 At that point in time -- well, not at that point 17 in time, but at the time that I finally dismissed Integra, I 18 had paid $67,000.00 to IntHgra for the -- between the office 19 and my home, And whon I eli scovex'od the third invoice had not 20 boen paid -- in other words that wan outstanding -- 1 realized 2l that consequently I would have another almost. $8,000,00 added 22 to the 67 1 already paid. And I would not even have the first 23 t.wo floors of my houso done, which upsc,t mo. 24 COlwequently, when I discovered that, I then went 25 to Mr. Dymeki and said, That is it. And I then thereafter 5 1 2 3 4 5 6 '7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ~- \ r. went out and secured another painter to finish our house so t.hat WB could move in ill th~) fall of 1998. Who was thnt pni.nter who finished the house? I am going to say C and J. If not, two initials Q A li. ke that. Q A Q K and c? K and C. And did K and C provide you an estimate for the payment of your home? A They actually did my basement. Q How much did they charge you? A $4,000.00 and the basement is a finished basement. It has chair rail, it has large molding, wooden doors, the things that are upstairs, and also contains just about exactly the same square footage as does the first floor, but also it entailed a hot tub room off the si.de, which entai1ed special paint and special moisture issues. Q Just so u you went through it a little quick. Explain to the Court the itoms that -- the specific items such as chair rails and things like that that wore in the basement. A 'I'ho -.- we used the same chf!..ir rail, same crown molding we had done at the office. So obviously all of the contractors, including Integra, were familiar with it, including tho baflCJ molding which WitS larqer, six or seven 25 inches, with a trim piece across it, and a three-piece __ 6 ~ "'" 1 2 :3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 pardon me -- chair rail. It was identic/d. to what waD at the nfUce, and it was identical through t110 houso, Wo didn't change anything from anD room to the other. As a matter of fact, the exact same wall color was in the office as in the housa. The exact same trim color is in the office and house, with the exception of three rooms. At the offico there are three rooms thut have throe different colors, And in my home there are three rooms that have three different colors ..- colored trim, Q f..et' s just focus in on the relationship between basement and, let's just say, the second floor of the house. Same square footage? A Yes, approximately. Q Same amenJ.t.ies such as the trim and molding and all of that? A It does, yes. Q 'ro your understanding it would be about the same paint job a8 on the second or first floor of your house? p, By my estimation. It also had two mantels down there that wore done, and two mantels on the first floor of 20 21 t.he house. 22 Q How much did you pay K and C to finish that? 23 A $4,000.00. 24 Q And were you satisfied with their quality of work? 25 A Yep. 7 -'I t4t", 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was their quality of work on par or better than Integra? A Detter than Integra. Q Noll', :Just focusing on the time frame up to your decision to ask Integra to stop work, were you ever late on any of the invoices? A No. Q Were you ever late on any pflyment to any of the Bubcontractors or general contractor? A No. Q Were you ever late or missed any payment to any of the subcontractors or general contractor? A No. Q SomB of these issues that we are going to talk about regarding the quality of their WOrk, why didn't you mention that to them prior to you asking them to leave? A 1~e best explanation I can give is that I wasn't a painter, and I have leanled more about painting than I ever wanted to know over the past COl.lplf~ of years. In 1990, if the room was gray when I left and whi te when I came back, I assumlKl the pa int was on the wall and that wall (Jreat. I aSElumec1 that the trim was done professionally, 1 assumed that evorything was done, and it was going to remain that way. In other words, remain looking good for a number of yearn. And so that. was my approach to it fj 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7.... ,...., Q How many, an estimate -- jump a little bit ahead to the office. In estimation, how many doors ara we talking about at the office? A Thirty-fivo. Q Okay. All with the same problem? A Yeah. Yeah, Q How about the home? A The home, the first two floors not excluding just what they had worked on, approximately 30. Q Now, again, just focusing on the residence, you talked about the doors, what other problems are you experiencing at the residence? A Well, the doors, one more thing was just like the fireplaces, they are rough. And you take that same paper towel and go over that door, ancl you have the same hang up because it wasn't ever sanded OJ: dirt removed or something in there that is making it that way, Q Are you talking about painted areas or -- A 'fhe painted cloor. 'l'he entire door. Obviously the top .is rough becauBe it's not been painted. As fax' as the windows, we have had problems up until present day with windows that. we have trouble opening or getting opened after theY've beeD closed because there is paint on all of the jams. Our living room is a prime example. Even 1 couldn't get them open, 10 23 24 - ,...., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 a'll MR. EMIlRY, Q Anything else with the windows? A 'l'he windowfJ are not all painted. The underside of the window, when you open a clouble hung window, it ill not painteel. 'rhe various otl18t' a reas of tho window, when you open it, you can llEW --- rather than pulling the window out, which you could pull forward to clean, for instance, it is not pAinted there, it is bare wood that is exposei'! to the outside. Now, when thoy are closBd and standing on the outside, you are not going to see that that wood is there and exposed; but as SOOI1 as you pull it out to clean it, you are going to see that wood sitting there, Q Anything elsQ about the windowEl? A One major issue, we've had cleaning companies come out and try to clean our windows and the difficulty there is overspray on 80 percent of t.he windows in our house. When I say overspray, I am not talking little speckles of paint, I am talking about adhesive wit.h paint on it that. was never taken off, and that was done by Integra. I personally have scraped some of the windows, and we've had people como out: and try to clean them, but nobody wants to get up that high and keep scraping at them. Q So you aro talking about on the second floor? A It is the first: and second floor where they did 22 25 the work, yes, 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ":;;<';', "...., Q Anythin9 elBo at tho residence? A lJlI\, vaLloufl placer> where we've had the trim __ where we havo dark trim paint from the chair rail 011 ft white wall in various placos throughout the house where it looks like I painted it as oPPosed to a professional. Q Okay. And this iB including both the second floor and first floor that Integra finished? A That's correct. Q Okay. Anything else at the residence? A There is much of the trim itself that is allegedly finished which has tho same rough finish I was describing on the doors, and t.here <u.e a number of places trim wasn't touched. Not where someone went back in in other words, they primed it, put it up there, and never finished it. In my cloBet, the trim was primed, put up there, nail holes never covered, Hnish coat never put on. Q Closet is on the second floor? A Itnd my daughter's closet. Q And to yoU): understanding is that work that you were billed for? MH. HUBF:R: ~'HE COURT: THE WITNESS: Object.ion, Judge. Oven:u 1 od. After I had spent that much money, I expected I was at least. going to have my first and second 13 1 2 3 4 5 6 7 8 9 10 1.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .." f""'.. Q Okay. 1~e point in time comes when Integra is done at the office and goos to the residence. Correct? A Yes. Q At that point in time, did anyone from Integra ever discuss with YOll or mention to you that t.hey were going to have to come back in and do touch-up work? 'l'HE COURT: Where? At the office? MR. EMERY: At the office. THE WITNESS: If I might interrupt. There is one other thing at the office that came to mind because you talked about it earlier, the roof outside. I stood outside with Mr. Dymski and his partner while his partner took a 40-foot roller from the ground and rolled that red paint onto the roof. And I stood out there and Mx. Dymski told me, he said, Well, this is ,June. It's getting hot. And nobody likes to work with the paint going on fast, it dries too quickly up there, So we have to wait until the weather cools down to put a second coat on. But it's been up there, metal sitting up there, since we moved in in December, so it's gone six months. And he goes, Well, believe it or not, John, it wil1 adhere better once it is weathered Borno like that, So my assumption at that point in time, the fact it had been out ther.e for six mont.hs, therefore putting this 15 ~'? r-.. 1 paint directly onto it, the red paint, would be better than if 2 they put it on in February, if the weather '!/'ollld have 3 permitted. 4 Q What is the condition of the roof now? 5 A Right now it is flaking and rusting. 6 Q We talked a little bit at the office that Integra 7 didn't indicate to you that they had to come back and do any 8 interior work. At the residence after they were asked to 9 leave, did they ever indicate to you, Here are certain items 10 that stilI need to be done? 11 A No, they did not. 12 Q Didn't indicate to you on the second floor they 13 claimed was finished, they had to come back and do work on? 14 A No. 15 Q 'I'hese problems that you've talked about, when did 16 you first start noticing them? And I am talking about all of 17 the problems. 18 A Well, within --. at the office, six months to a 19 year after we were done, and it's only been exacerbated as 20 time goes on, and tlwt would go with the house also, because I 21 must say that 1 just did not have a trained eye to go and 22 understand that this wasn't right or that wasn't right, until 23 I reaUzed the simple things that you can't dust or wipe off 24 the mant.el because it is so rough. 25 Things, like, in the tenant area at the office 16 ,~~ ,-\ 1 where you look now, and you see the walls are not hardly 2 covered wi th paint, and the trIm in that arBa is barely 3 covered, and i(1 fact. you see the wood. That;' s why my example 4 earlier of, you know, it was gray and I saw it waB white. Oh, 5 it looked good, I didn't know to 100k closer, but 1 have since 6 learned better. 7 Q But the issue of cracking and rusting, theBe are 8 not recent issues, are they? 9 A No, they are not. 10 Q 1 am going to put photographs in front of you. We 11 have pre-marked t.hem as Defendant's 3 through 9. 12 MR. EMERY: And Your Honor, I don't have copies of 1.3 these, but maybe John can hold them so you can see what t.hey 14 are talking about. 15 'l'HE COUR'l': Mr. Huber, have you reviewed the 16 photographs? 17 MR. HUBER: Yes, I have, Your Honor. 18 THE COURT: Do you object to any of them being 19 admitted? 20 MR. HUBER: No, Your Honor. i2 1 IrL.f.iB...-JlMl.RI I 22 Q First, ,Tohn, can you tell the Court who took those 23 photographs? 24 A I took these photographs, 25 Q And about vilien did you take those photographs? 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -, ""'" A About a yeur and a hulf to two years ago, in that vicinity. Q And they adequately reflects how the office and the home looked at t.he time that you took them? A Yes. Q And just go through them. I am not sure which order they are in. .JUllt briefly describe what each one is. I am going to look at D-3, which is another issue that I didn't discuss earlier, and t!Jat WlD the exterior shutters that were painted by Integra, 'J'hir; ill what the shutters look like. You can see they've all spHt. They are peeling __ THE COURT: Is this at the home or at the office? THE WITNESS: This is at the office. TilE COURT: Okay. BT MR. IlMERY I Q Okay. Now, we just have a couple photos of the shutters. How many shutters are at the office? A I believe 26 pair, Q Twenty-six pair. A Right, Q And we just have a couple photos. Is that how just those shutters 100k or is that a problem with all of the shutters? A 1~at is a problem with all of the shutters. Q Is the problem at the residence? You are not 18 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .':1 """,, 1 2 3 4 having that problem at the residence? A No, I am not. 'l'HE COUR'r: Lot me just back up. Do 1 understand that when Integra was firod, they were fired only from the residence? 'f'llEJY completod the office? nlE WI'l'NESS: Well, tha t was my understanding, that they had completed the office. But based on the testimony of Mr. Dymski, they had not. My understanding was I was firing them from any further work at either location. MR. EMERY: So your testimony is that they were there to complete t.he office. THE WITNESS: As far as I was concerned, it was June o.r -- pardon me ...- it was July of 1998. We had moved into the office, the old s8ction, December 1.997, moved into the new section in March of 1998. I didn't think there was anything more to do, THE COURT: They worked there until what time period? When did they leave the work site at the office? TilE WI'l'NESS: I can't tell you exactly what date, although I know that we moved .in. So subsequently the vast majority of the work had to be done wit.h exception of the tenant space, which does not impact our office at all. TilE COURT: Okay. HR, ENERY: And Your Honor, I will step back a little bit. 1 think I cUd ask this question, but 1 wi.11 make 5 19 ."'"'l ~ 1 ;2 3 4 5 6 7 8 9 10 11 12 B 14 15 16 17 18 19 20 21 22 23 24 knew i;1t a point where I knew I was paying the high-end rate, but I wasn't getting my money's worth, that is all. MR. EMERY: 'I'hat is all of t.he questions I have, Your Honor. THE COURT: Cross. QAQSB-EXAMINATlQU IlL.HfL HUBEI\ I Q Mr, Fenstermacher, I think you indicated in your direct examination that you moved .lnt.o at least a portion of the Graystone in December of '97; is that. true? A That's correct. Q And then you also m<,mt.ioned March of '98, yOU moved into some other portion of that property? A The newer section, I will cal1 it, the rear section of the building, yes. Q The addition to the stone structure? A Yes. Q So by March of '98, you occupied all of the professional office space that you do up to today; is that right? A Yes, that's correct, Q And I assume that you would work there on a pretty regular basis during t.hat time frame? A I do. 25 Q Okay. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 """"I r"""I A I have, Q Subject to vacation~ or whatever, you are there five days a week pretty much. Right? A Yes. Q Okay. And so you would agree that you had been in that propert.y for at. least six months when you retained Integra to C0me work at your home, is that true, sir? A I had been in the old section, yes. Q You had been in the old section for at leaat six months and occupied the new section for at least three; is that true? A Approximately, yes. Q And you were able to see the quaUty of their work during that three to six months; is that true? A No, Q It's not true? A I wasn't schooled in ':he ability to sse the quality or non-quality of the work at that time. Q Okay, A 1 had not personally climbed to the top of the doors to see if they wero painted. Q Would it be fair to say, Mr. Fenstermacher, in that three to six months, you did not see anything about the Integra work quality that. caused you any concern in hiring them to do work at your house; is that true? 23 .~ ,...., 1 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mat'ked as exhibit 1 for :ldentification. Would you agree with me, sir, that the bill that's unpaid is the third bill that was issued for work at your home? A On Page I? Q Yes. A Yes, Q And that you, in fact, paid the fourth and fift.h bill that was issued: isn't it true? A Yes. Q Why did you pay the fourth and fift.h bill, but not the thi rd bill? A I thought about that and I talked to my wife about it, and my best recollection is that 1 would not normally pay things out of sequence, that .would not be like myself. It would be like any other. bills I paid. The only other thing I can think is that this orte was in there, and I couldn't find it or didn't know it was there, but paid the next one. So consequently that is why it surprised me when I suddenly was confronted with a $7700.00 bill that at that point in time I didn't recall or I didn't know existed, and then I realized then that both projects were going to cost me in excess of $75,000,00. Q When you paid t.he last bill, and according to Exhibit P-l, the last bill is dated August 13th of '98, were you satisfied with the quality of the work Integra had done? 2C,) ,~~ ".u\ 1 2 3 4 there is a letter dated July -- THE COURT: IS this plaintiff's or defendants you are referring to? MH, HUBER: I' 111 sorry, Your Honor. It is Plaintiff's 1.. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1lX.....M.IL. HUBER: Q 'l'hBre is a letter dated July 30th, 1998. Did you receive that letter? A Yes, Q And that makes reference to a cost of doing the first and second floor of ahout $24,000.00. Do you see that? A Right. Right. Q And this letter followed a conference you had with Jim and Ozzle Kurtz some weeks before; is that true? A 1 don't recall the exact -- he says two weeks. So I don't know the exact date. Yes, we did talk about the letter. Q Did you talk about an estimate for doing the first: and necond floor? A 1 wanted Lo know thllt, yes. Q Did you talk about it when you had that conferellce or did you only get. that f i.gure with t.he lett.er? A I can't sit here and FJpeci,fically say I heard that number until I sa~1 this lett.er. Q Okay. After you Baw this letter. and saw that 29 1 2 ] 4 5 6 '7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~) """ number, what if anythinu, did you do? A An (al" ow? Q Anythlnu. You saw that number, did you do anything about it? A At that point in time, no, I d.id not. Q You did not pull Integra off the job once you saw that number; is it (TUe? A Not lonu after that, Q But based upon seeing the number? A 1~at day, no I didn't. On July 31st or the 1st of August or whenever I got it. Q In fact, you paid two bills after ~ou got that letter; isn't that true? 11 YBS, 1 did, MR. HUBER: May I approach, Your Honor? nm CQUR'r: You may. BY MR. HUBER: Q Mr. Fenstermacher, I am showing you the answer you filed in the complaint that had been HIed by Integra in action number 99-268, is t:hat the answer that was prepared in the file? A Yes. And did you relVieW" thC\t answer before it. was 23 Q 24 filed? 25 A Yos. 30 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 l8 19 20 21 22 ?o3 24 25 .-.., t"', Q Did you sign a verification? A I did. o Would you agree with me that in the answer, the only specific complaint you made about the quality of Int.egra's work had to do with windows. Wouldn't you agree with that? A Without. rev:Lowing -- if you give me a few minutes. I will go through this, o I would like you to do that, A Okay. YBS, I talked about the windows in here on one count, and also talked about irnproper billing. Q Okay. r am limiting my question to the time being for quality, I realize you've raised questions about the billing methods. A Okay. o Would you agree with me that the only quality issue raised in that pleading has to do with windows? A No. o Okay. What else? A Paragraph 35, count. 2, talks about Integra billed excessive hours of costs. Q You have the phrase substandard work in there. Let me ask it a different way, Mr. Fenstermacher. You talked about doors being unpainted. Is there anything in your pleading about that? 31 ,-... t""'\ 1 2 3 4 5 painting; is that true? A Up to lhat point in time, no. Not in the discovery process, no. Q You hired an expert two weeks before the hearing? A I don't recall the specific date. It was before 6 the arbitration heax'ing I hired Mr. Yingst subsequent to that.. 7 Q You hired Mr. Yingst after the arbitration hearing 8 was appealed; isn't it. true? 9 A ~'hat's C'OlTect. 10 Q So when would it have been that you hired 11 Mr. Yingst? 12 A (NO RESPONSE) 13 Q Would looking at his report help you? 14 A It may. 15 MR. HUBER: May I approach, Your Honor? 16 THE COURT: You may. 17 BY MR. HUBER I 18 19 20 21 22 23 24 25 Q I am showing you a copy of Mr. Yingst's report, does that help you refresh your recollection as to when you hired him? A Summex' of 2001. Q So that would have been roughly three years after Integra was finished with their work; is that true? A Yes, that is about right. Q And it had been more than three years that Integra 33 ~~ r., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I have not done that, no. Q The only other thing I wanted to ask you about, Mr. Fenstermacher -- I shouldn't say only other thing, something else might occur to me -- you talked about the shutters and you had some pictures of shutters at the office. A Yes. Q And who selected those shutters? A You mean the style? Q Well, who picked the shutters? A I would have picked the style as to w\1ere they come from or were made, I would have done that in conjunction with the general contractor. Q Mr. Kurtz? A Yes. Q You will agree that Integra did not select the shutters. A No, they wouldn't have selected the shutters. Q And you testified about these shutters at the arbitration hearing in this matter, did you not? A Yes. Yes. Q And would you agree with me that you asserted at the arbitration hearing in this matter that the shutters were unpr-imed? A Yes. Q And you expressed the view that that is why they 36 .(0 .(.( .(.:? .(.] .(~ .($ .(6 .(/ .(fJ .(9 <0 <.( JJ.J:o. r> oJJ ~ ~-t-t :Y? ./"t , Iv~ , -6 '"'-& ~~ -6~ 1:1: 0", :;"'0 (1.('. ~ ~ <-~ ~ 0"'(1 ~ " '7<i t , A;--t- ~ -& . :;"'./" ' et .t -t- ~9-1; ~-&I; I] I; . ( 0" ~'" tl;(I "'~O -&1; <-t "tt 1;(1 ~-t- 0~ 0& './ <it t~'0' ';-0 ~~ "-t- (I", 0:;", .z-"t .t'-t 0 (1-9: (I -t-et JJ.J:o. .0" OJJ -t (I-t-t "t-t :Y, ,,~ (4)0 ./"lJt "'~..$'A (I~ 04> ~ -t-<i ..$'~J (I.}-- et~. rt-id. % , "V) , t t % % tl; t;, <it Jqt. ' JJ""", %-'1 /Q(I .t'0 -t- 1;(1 tl;(I 1J0t? <1 Q <1 Q Irt . <-'1 ~. <1 Q 1'1.> "'- "0 OIJ./.;- "'- 0/-1 () <1 Q '1(1; 1'(1 ct,. -& -t lJ 1:1" '-60) I] '~_ t 0""" -it ./" .}--Olt <It;; . t -Y" et-tC/, 9""""60 t!]qt "'''o? "1.1 .;-~ tl; -i~ ./" J. ';-0 lJ,'y' <1t Ivll <'<i It t;;", t& <'It "60 J. -&-i-'1" lJt-tJ>. <J""rt "t;; .J:o. "10-'1.;- ""././ (1.0./"" ' O.t' 0& t CI 4(1 tl; '" ~ '4lttt lJl;lttt &-t-lJ ~-t- lJ lJet <'It "et&CI tl; "" $ , -'et ' Q ~ 1 .-., , .t: &JJ""-t -'1t &C/, 1 ./" IvQ lJ to -tlJ '.ICf t . l;1?t t -t-q 'fJ;. Q 1 Ok q.}-- o . c.t'-t A. 0~ <J)et . ..$'.0 Iv!]", o.{'.{'. <--i IJ <0 ..$'0 1J9", Iv<io!) "'. Iv. ~ tl <io!) ""-t-, l"t ./ <.}-- ~ t -6 o!)lt OIJ ~~ "'% ~? O-t- 0", ~ 0 0", c _ q <0 .t't 0./ (I-t- . A;--t- <1 Q <1t t!]& O.t' .t'-i 0(1 JJ~ OJJ ~-t- t.;-? 1'-i JJ"" -'19. "'(1, 1'-t o!)t 0-'1 -'1~lJ . Got /Q(I t ""Iii ' rt-i './-'1 "".t't et I; (let (I-t- :to!) tl;(I A;--t- (I+. JJ l' q/Q~' :teOJJ -t-'1 -'1""t o-t-t "Si'lJt -to :Y 'l1? . 1'-t -'1 ~"'t $+. OJ/Q-t -'1tf1et ';-Oq-t- , , '>0- et-t et N ""')0 .....'\ 1 A Absolutely not.. I thought. it was best exposed to 2 the elements for six months. 3 Q At that point in time, the shutters hadn't started 4 cracking. 5 A No, they had not. 6 Q Were you aware if you didn't paint the tops and 7 bottoms of the door they would crack? 8 9 A I was not. Q You weren't aware at that point in time Integra 10 didn't do that for any of th.e doors. Correct? 11 12 A I wasn't aware, no. Q As a matter of fact, much of what you stated as 13 complaints, you weren't aware of unti 1 <lfter you dismi8sed 14 them; is that correct? 15 MR. HUBER: Your Honor, 1 am going to object to 16 the leading questions. 17 not Mr. Emory. 18 THE COUR'I': 19 that it is repetitive. 20 MR. EMERY: 21 DLMB..... EMERY I This gentleman is the witness here, I am going to sustain it on the basis Understood, Your Honor. 22 Q Also referring to that July 30th, 1998, letter and 23 your discussions that occurred before that do you hClve them 24 in front of you? I think it was their P-l it indicates the 25 projected interior, first and second floor, 22,000. 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -) ,~ , A Yes. Q What was your understanding of how much was going to be done based upon the >?ayment of $22,000.00? A Everything, I mean, first and second floor finished. Move in. Q Okay. After paying them $24,000.00 was the first and second floor finished? A No. Q When you filed the original complaint at docket number 98-6814, is that about the t.ime when you first started having concerns about the work of Integra? A Yes. Q Okay. Is that when you first started having these problems that we've discussed? A Some of them started to show up, yes. MR. EMERY: And Your Honor, I ask the Court to recognize that that compliant was filed July 20th, 1999. And also you filed an answer and counter-.claim to the Integra complaint docketed at 99-268. And at that point in time when you filed the counterclaim -- I believe the paragraph that discussed substandard work -.- that is when you first start understanding that they did some substandard work. THE WITNESS: Yes. MR. EMERY: And again, Your Honor, just for the record, I would like the Court to know that that was filed on 40 .-.~ ,I ~, 1 February 23rd, 1999. 2 'l'lm COUR'r: Which one was HIed February 23rd, 3 1999? 4 MR. EMERY, Number 99-268 Integra verSU!l John R. 5 Fenstermacher. 6 7 8 9 10 11 12 else? 13 14 \lonor. 15 THE COURT: Okay. I have 98 -- MR. EMERY: That. is Fenstermacher/Blue and Gray. THE COURT: Is that. praecipe for writ of summons? MR. HUBER: Yes, it \l/as, Judge. MR. EMERY: I be 11 eve so. THE COURT: I understand. Good enough. Anything MR. EMERY: If I could just have one moment, Your You have gotten estimates, though, to fix the 16 products at the home and the residence. Correct? 17 THE WITNESS: Yes, I have. 18 MR. EMERY: And what were those estimates for? 19 The amount? 20 MR. HUBER: Objection, Judge. 21 THE COURT: Sustained, 22 MR, ENERY: Your Honor, I am not asking for him to 23 enter it because we will have a witness testify as to what the 24 amounts are. I want to have him testify -- 25 THE COURT: Then ask him, When did you get the 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .:} r-, est.imat.es? MR, EMERY: Do you recal1 when you first got those estimates'/ THE WITNESS: As I sit here, I can't honestly ~ay. I can't. remember. MR. EMERY: You got those from Mr. DiFilippo. 'I'HE WI'I'NESS: I did, yes. MR. EMERY: That is all I have, Your Honor. THE COURT: Recross. MR. HUBER: Very briefly, Judge. RECROSS-~ ~y MR. HUURI Q Mr. Fenstermacher, I wanted to clarify, that check that was attached to exhibit 2, Mr. Dymski did not cash that or Integra did not cash that. A No, they did not. Q And Mr. Emory had asked you questions r.egarding the sequence of the filing of suit. You would agree, certainly, that the first claim that was HIed between anybody in this litigation today was the District Justice complaint filed by Integra; is that true? A Yes. I remember that vividly. I couldn't see paying him when he had not finished my first project. Then he went and filed a D.J. action. Q So is the answer to my question, yes? 42 ,-, .-. 1 2 3 4 5 (; 7 8 9 10 J.l 12 13 14 15 16 17 18 19 20 21 22 23 Q How many businesses in that time have you painted? A Hundreds. Q All right, And during that period of time, have you always been in the painting profession? A Predominantly, yes. Q Okay. MR. EMERY: Your Honor, at thio point in time we would like to submi t him as an expert on the quality and workmanship of the painti.ng project at the two projects. THE COURT: Do you have any questions with regard to qualifications? MR. HUBER: No, I don't, Your Honor. THE COURT; Okay. He may testify as an expert on those issues. DIRECT EXAMINATIO~ BY MR. EMERY I Q I am going to put before you two exhibits at the same time, and talk about them both. We've pre-marked as D-I0 and D-ll, and they are marked on the bottom, Your Honor so you know which is which. Can you briefly tell the Court what those two exhibits represent. A Well, D.-I0 represents an estimate I made up for Mr. Fenstermacher to come into the home on Green Ridge Road to completely redo the house from where it stood at the time I saw it. 24 25 45 .-.;;~ f""'.. - 1 He mentioned what would it cost to touch this lip, fix up the property where it was messed up wrong and all. of that. And 1 said t.his ian' t a matter of touch up, because you Cim't touch something up, you know, from what I saw. I said the place has to be tot.ally redone. Q Okay. And we were just talking about what I think we've marked as D-l.O, as the residence. On D-ll, can you advise fOL- t.he Court what that estimate is? A 'I'hat estimate was for, I 9uess, the offices on Trindle Road, and it basically applies to the sams thing. I couldn't go in and touch it up. You cannot go in and touch up a full project that needs to be cornpletely redone. Q Okay. And we will. get into - - I'm sorry. A And this was the price on the office and the price on the house that -- those were the costs that I would entail to go in and completely redo the place properly. Q Okay. And the date on these invoices are both November 4th, 2000. Does that accurately reflect at or about the time you inspected the properties? A Yes, sir. Q Now, let's just take the project separately. If you want to look at D-10, we will look at the residence first. A Okay. Q Just so I understand you, I think you said this was the work that needed to be done. Correct? 2 3 4 5 6 7 8 9 10 11 I? 13 14 15 16 17 18 19 20 21 22 23 24 25 46 21 22 23 24 25 ,,,,,,,," 1'"'-, 1 2 3 I} 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q What about tho cut linea? How would you describe the cu t lines? A Well, it.s pretty poor. I mean, if you go along, even with normal eye sight, and you look at a chair railing, a green chair rai ling, there was green up the wall, there wi 11 be white wall paint on the chair railing, it is all wavy, uneven, and time and effort wasn't. taken to draw a straight line in with a brush. Q 'l'hat is what you would expect from a professional painter? A Standard professional painter. It is unacceptable as it. stands. Q Other than some of the things that we've talked about, the caulking, the dirt, what else on the property would require complete overhaul? A Vlel1, all of the walls need to be redone because a lot of the patchwork wasn't completed. Q Define -- you are going to have to describe some of these terms. When you say patchwork, what do you mean? A. Where they patched nail holes, gouges from other contractors working, some of the drywall work that was not completed. 'l~ere is supposed to be three applications of drywall mud on drywall seams, some of them only got one application of mud, and they should have been treated. 49 ..... I I"'i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 and theD clean them. Q Okay. On your insp~)ction you do /lot believe that occurred? A No, no. You woulc1n't catch me wiping my hand down the edges of tho doors' front. There is nothing but dirt. If you took your hand down the edges of the door and slid it up and clown, you are going to have to go get antiseptIc on you because you are going to cut your hands from all of the roughness. Q Now, you inspected that i.n November of 2000, but that dirt that you are describing, is that in the paint or something on top of it? A No, it was in the paint or beneath the paint. Q That is something A That was there when they painted it. Q Now, on the amount of the proposals, how much -- A On the home? Q On the home. A $22,600.00. Q Would that be the same amount as if you came in starting new, also? A In about the same. Pretty close. Q Okay. Let's talk about the office complex, 'cause you did an inspection of that. Can you -- and the same thing, why did you have to do the offices as if you were stcl1:ting 25 51 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --;. '"" 1 over again? 2 A Well, primar..l.ly because --- wel1, they say 3 substandard work. You cannot go i.n and touch up a room. 4 Touch up in a room is touching up a door frame, fixing a door frame. All of the door fx'ames need to be completely redone. Around the backs of the door frames where the __ say the door frame was green and the wall was white, they've got green paint cutting into the walls. On the doors they've got wall paint cutting into the door frames. And like I say, they are aIL dirty. They are all rough. They were never sanded or cleaned. How do you go touch up a whole door frame? You can't. You have to redo it. As you go through the property and you 100k at a wall, you can maybe touch up maybe one or two spots. But in this place, you are beyond that. You are way beyond that. I mean, you can't touch it up. You have to redo it. Q Okay. You talked a little bit about what happens when dirt gets in the paint, and we discussed it at the house. How would you describe the walls in the office complex? A Rough. Only one word I can say. It is substandard. I mean, it was not done right. Q Okay. On the invoices that you've provided or on the invoice for the office, how much was it? A $25,687.00. Q Okay. And on -- when you typically do work, you 52 -...... t'i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 J.7 18 19 20 21 22 23 24 25 do all of the sandin[J and preppin[J and priming'? A 'I'hat would be complete from prep up. Q So that invoice amount would include prepping, priming, getting it ready for painting? A It includes all of the labor, prep, prime, paint, even the paint, that includes the whole shooting match. Q So for you r estimate to do the office as coming in from the start, nothing else there yet. Is that a true estimate of what the price would be? A It could be done at? Q Yes. A Yes. Q 'rhat would include everything from the rooro~nt you walked in until the date you walked out? A F'rom the day I wcllkec1 in and the day I walked out. Q Did you get a chance to inspect the roof? A I live in the neighborhood, and like I said, I never knew John before. I go by there maybe five or six times a week. And when the place was under construction, I didn't know whose it WaS or what was going on, but 1 saw the roofer that constructed it, and shortly after that we saw rust that started appearing even before if had been painted. I mean, there was a lot of rust on that roof before it was painted, Then one day I came by and it was painted. 1 said to my son, Guess what? And he 100ked at it. 53 (=)1 r-., 1 Nobody neods to guass that root is not done. He said, They 2 are going to havo problemB with that. o But you had a chance to inspect it, though, when you did your inspection? A Yes, I did. o And describe tor the Court what you saw from the :I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 roof? A Well, the only thing I saw 'from the roof was somebody threw some paint. on it, It was never primed px'operly, unless ther'e was a substandard primer used it on. 'I'hey call it Red [,eac1 for the type of galvanized type roofing. Even though it doesn't have lead in it, you have to put that on, and then you have to put two coats of a px'oper roof-sealing paint. o In your professional experience, a roof like that should have b8en primed first? A That roof should have been washed first with a chemical, then primed, and then painted. Q And from your review, eould you toll whether. it was primed? A Yeah, it was not primed. o Could you tell whether they painted over rust'? A Yes. Q Thero is a chemical you can put over rult, though. I have to mention that, You lightly sand it, and you don't 20 21 22 23 24 25 54 ..., ........ 1 2 3 .4 5 6 7 8 9 10 11 12 13 14 15 1.6 17 18 19 20 21 22 23 24 25 have to get rid of all of the rust, you get rid of the loose rust, and there is a liquid that you pour on top of that, you brush it on. What it c10es is kills all of the rust. It comes under different names. It is around $50.00 a gallon, in that neighborhood. Q Okay. A And if you put that on, then YOll still had to prime. But that was not applied there. Q You've done some work at the Graystone. Correct? A Yes. Q What did you do? A My son and I were asked by John to change the color on the shutters and do a little bit of repair work inside in one of the window ~eats because one of the windows -.. there is a pr.oblElm with it. with water damage. And I said ..- because he had an open house coming lip -- I said, John, I am going to tell you this, I wi.ll temporarily fix the window seat area, it wil1 not stay, because the problem is outside, first of all. He said he wanted it to look nice for the open hallS". I said I agreed t.o do it. And he said, I want to change the color of the shutters. I 100ked at the shutters closely and 1 said, John, the strutters are shot. I said no mat.ter. what YOll do to thElBe shutters, I sai.d, you are not going to be able to repair the damage that has already been 55 ::) ~ 1 2 3 4 done to them or the lack of work that was done. He wuntod thrun a different color. I think they went from a green to a civil war gray or dark gray to black. I said. We wi 11 sand t.hem down lightly. I wouldn't get into repair work because at the time this court deal was going on. I said, I will put two coats of paint on it. I said, It will hold for awhile, but it will not hold forever because the damage is inside of the wood. The shutters are already coming apart. They had been coming apart. Q Okay. A I said, I want you to understand t.hat when I do this, I put no guarantee on the shutters, on the quality of the holding up part of it because it will not hold up. Q You had talked about the shutters. I think you mentioned the work that hadn't been done. What work hadn't been done on the shutters that should have been? A Well, they were never primed. When they were put on the building, I guess by the builder -- well, they were screwed on. I think they were pre-drilled and the holes were never plugged where the screws went. They should have been plugged. Q eould you tell, were the shutters sanded properly? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, no, no. Q And I think I cut you of f. I want to make sure. The question was, Were they sanded properly? 56 ,..,.....\ _4 ,-... 1 A By me or the other painter? 2 Q Whoever workod on them before you saw them. 3 A No, they weren't. even primed. 'I'hey were given a 4 wishy-washy coat of paint. That was it. Paint is no good 5 unless you seal the wood up, But like I said, the screw holes 6 were never pluQved, 'I'hat is whore t.hat is -- what let all of '7 the water in for thelll to pull apart. 8 Q You talked about a bunch of things, but I want you 9 to state your experience, 25 years as a painter, how would you 10 describe, in general terms, the work that was performed by 11 Integra,' 12 A It doesn't matter who did it to me. I don't even 13 know Integra, and I really don't know John. It is totally 14 unacceptable. Had they neon working for me, they would have 15 been fired. I would have fired them .if they had done it for 16 me. 17 And the thing wi th the qual.i ty of this work, I 18 have done estimat.es for people for 25 years. I walk into 19 homes and I take the people around, and I show them their 20 bedroom, show them their living room, and point out things, 21 and they look at me and they good, God, I have lived hero and 22 I have been in here for seven or el8ven years and I never 23 noticed that. 24 1 said, you live here. I said, it is your home. 25 1 said, I am just pointing oul: Whilt should be done. What has 57 "'""', ;.... I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q 'I'he first quoBtion is, Are these your estimates of what it would cost to go to the home and Graystone and do it from the start before pal.rltlnu was done? What was your answer, Mr. DiFilippo? A Yes. Q Okay, So Exhibit 3 relates to the Graystone and what you are doing is backing up and saying if Integra hadn't done any work, and I am going to start this job, this i B wha t it would cost me to do it. And your answer was what? A Had I walked in and it was brand new construction, that is what it would cost, Q So when you testifi8d at the arbitration hearing in this matter, t.hose estimates are what it would have cost to do the work at those properties before Integra ever got there; isn't it true? A Yes. Q And that is different than what you elaid today; isn't it true? A No. Q That is exactly what you said today. A You misunderstood me because I said either way. I mean to say, either way, had it been fresh drywall or reconstruction or remodeling, these are the prices. I told Mr. Fenstermacher I would have done it either way. I t.old him. At that time I knew nothing about a court -- 60 <~ r-., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you Bay that at the arbitration hearing? 'l'HE COUR'I': Well, I heard what he Baid at the arbitration hearing. Let's move on. BY MR. HUllER I Q I guess my question is, Did you Bay, during your testimony at the arbit.ration hearing, Mr. DiFil:l.ppo -- A Did I say what? Q -.- that those estimates are what it would cost f.or to you repair Integra? A Yes, if that is what it Bays here. Q Okay. Could you find -- THE COUR'l': That is not how we do this. MR. HUBER: Thank you, Your Honor. I'm sorry. You are right. BY MR. HUDER I Q Mr. DiFilippo, are you testifying that your charge is the same whether you are doing the work from scratch, new construction or whether you are repainting Integra's work, your charge is the same. A It would have been t.he same. I can do the same amount of work if it were new construction -- Q Take you the sam8 amount of time? A Yes. Q Same amount of material ? A Yes. 61 ."....... .-' t"', 1 Q Exactly the same? 2 A '{es. After 25 years of knowing what r know now to 3 do, and do it properly, yes. 4 Q When - - 5 A And that would be done by two people, not a crew 6 of 8 or 9, in and out, here and there. 7 Q When were you first contacted about this matter, 8 Mr. DH'ilippo'? 9 A I really don't remember. 10 Q Okay. The arbitration was in November of 2000, 11 would you agree with me that you were first contacted in 12 October of 2000? 13 A If that is of record somewhere. You are 14 refreshing my memory. 1 don't 1i. ve with this every day en my 15 mind. 16 THE COURT: Your estimates are November 4 of 2000. 17 THE WITNESS: Yes, sir. 18 THE COURT: How long before that were you 19 contacted? 20 THE WITNESS: Oh, before that maybe a week or two.. 21 MR. HUBER: Okay. 22 BY MR. HUBER: 23 Q And how did that come about? 24 A From the beginning? 25 Q \~ell, I will ask some questions. 62 .~ t"'\ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A How I got a hold of him and why? o Isn't it true that you were contacted because you were at Mr. Fenstermacher's property with a metal detector looking for civil war artifacts a couple weeks before this arbitration hearing? A Yes, sir. o And you left your card with Mr. Fenstermacher. Right.? A I think we ought to clarify that. as tu why I left my card. o Okay. Go ahead. A He gave me permission to hunt. his property. And I want.ed t.o t.hank him when I left. He was not. available at that time, and I left a thank you not.e on t.he back of my business card because that is all I had with me at t.he time. I didn't want to int.errupt him. Tha::: is how he got my business card. o Okay. Your business card for your painting business. A Yeah. uh-huh. Q So then he contacted you. And by t.he way, you were doing this work on a weekday afternoon; is that true? A The metal detecting? Yeah. 0 You weren't working that day? A I t.hink I worked in the morning. I am self -employed. 63 1 2 3 4 5 6 7 8 9 10 11 1:1. 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ Q So you left your business card there, and then Mr. Fenstermacher contactod you in advance of the -_ in regards to that window the end of November, beginning of November or end of Octoberi is it true? Yes, sir. A Q right? A Q going on? A Q A Q property? A Q work? And he asked you to give these estimates; is that Ye~", sir. Did YOll knolV whether or not there was a lawsui t Nope. I had no idea. And then did you charge him for the estimates? No, sir. Did you hope to get work for repainting his It didn't matter to me either way. It di&1't matter to you whether you got painting A No, I have a whole file full of estimates like that. Q So that isn't the purpose. You gave the estimates with hopes of getting a painting job? A No, sir. None whatsoever. Q But you didn't know there was a lawsuit? A I had no idea there was a lawsuit. 64 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ..,. ,..." 1 Q ~n, do you recall providing -- I think you said it today when you testified, BOllle things about the shutters. Do you recal1 that? A Yes, sir. Q And you said the shutters at the Graystone property were not prJ.med'l A Yes, Q And is that your professional opinion'l A Yes. Q Is that based on your examination of the shutters? A Based on the examination. They were possibly given two coats, but the first coat didn't appear to be a prime coat of any kind. I mean, because when it started lifting off, usually there is a coating of primer or residue that sticks to the wood because primer sinks, is supposed to sink somewhat into the wood a little bit as it dries to seal it off. And when this was peeled off, the parts we sanded down lightly, it was back to clear wood. Q Are you sure? A ~'hat' oS what we got, yes. Q After you testified at the arbitration hearing in this matter, you did secure some work that you've done at the Blue & Gray property; is that true? A Yes. 2 65 ^"'\ -}'- t""'I 1 Q And you redid the shutters, T. think you said, and 2 also did one window sill on the inElide? 3 A 'I'he wall. 4 Q Wall ? 5 A And part of a window si11 and window seat area. 6 Q And you said you needed to do that because of 7 water damage? 8 A I didn't do it because of water damage, I did it 9 because he wanted the building to 100k presentable for the 10 open house, and the veneer that was put up there was all wet 11 rotted. 12 Q You gave some testimony about the metal roof at 13 the property. When in the lalJt time you painted a metal roof? 14 A Within the last two years. 15 Q The last time was about two years ago? 16 A About two years ago. 17 What about before that? What was the last time? Q 18 Probably three or four, the year before that. A 19 Did you ever get up on the roof to examine it? Q 20 Yes, I did. I was on the roof. A 21 Have YOll done any repair work to the roof? Q 22 A No. 23 Have you done any repair work at Mr. Q 24 Fenstermacher's house? 25 A No. 66 "'i' 1""', 1 Q Wel1, I appreciate that, Mr. Dirilippo. 2 MR. EMERY: That is all of the questions I have. 3 nlE COURT: Recrosu'/ 4 MR. HUBER: No, Your Honor. 5 THE COURT: Thank you, sir. You may step down. 6 Next witness. 7 MR. EMERY: Your Honor, just to -- I have one more 8 witness, approximately about 40 minutes, if you want. to go up 9 to noon, if that is how you want. to take your lunch break. 10 THE COURT: We will take five. As soon as shE! is 11 back here, buzz me and we will reconvene 12 (Whereupon, a recess was taken from 11:18 a.m. 13 to 11:23 a.m.) 14 THE COURT: Next wi. tness. 15 MR. EMERY: Your Honor, I call Stephen Yingst. 16 Whereupon, 17 STEPHEN YING3T, 18 having been duly sworn, testified as follows. 19 DIRECT EXAMINATION_ON QUALIFICATIONS 2 01lIJlR . EMERY. 21 Q Mr. Yingst, can you tell the judge what your 22 current employment. is. 23 A Yes, I am employed by Criterium Yingst Engineers, 24 which I am the o~mer of, We are a franchised office of 25 Criterium Engineers, a national engineering company, that 68 ""'" f""'I 1 2 3 4 ~ 6 7 8 9 10 11 12 13 14 15 16 17 18 1.9 20 21 22 23 24 25 specializes in building Bvaluation serviceB. Q And what educat.ional background do you have? A 1 have my flS degree in engineering from Penn State in 1987, I have 33 crecH to in my master's program in math and struct.ural items, primarily. I've been a licensed professional engineer since the mid 1980's. I've taken numerous continuing education training classes in all. aspects of construction and architectural services as woll, including annual weekly trainings with the Criterium organization, I am certified by the American Society of Home Inspectors. I am certified by the National Academy of Building Inspection Engineers, Pennsylvania Septage Management Association. I am certified to t.each 7-hour continuing ed. class for realtors in Pennsylvania. Q And you qualify under the New Home Inspection Law of Pennsylvania? A Absolutely. Q And you do home inspections? A Yes. Q Okay. When you do a home inspection, and obviously in today's subject we are talking about quality of a painting pl"oject. When you do home inspect..l.ons, is that something that normally falls within your home inspection? A Absolutely. We ar.e always looking at a million 69 ..:) ,-..., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and one things. But the interior finish as well, particularly for quality and 9igns of leakage and those types of things. Q And does that review the quality of sanding and quality of caulking? A Correc t . Q Quality of all of tho paint application'l A Yes. Q How many home inspections h,:IVO you done? A 1 personally, residential and commercial, becauge we are spli t about 60 percent and 40 percent, I have done over 4,000 buildings that I have been involved with. Q And of those 4,000, did part of your inspection involve the quality and standard of painting services? A Yes. And the vast majority of them were looking at that as well. Special evaluations with other issues, but if it is a full home inspection or a full. commercial building inspection, yes, it would include that. We also get called in by insurance companies and others on specialty issues involving finishinga and painta. Right now we have an open project we are doing with Nationwide Insurance on a paint adherence or flaking problem in a residence. Q Okay. And you've done an inspection of both the Graystone office complex and the Fenstermacher's residence? A Yes, 70 '::J r.... 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And your engineering degree is in electrical engineering; is that correct. sir? A 'l'ha tis my undergradua te degree, yes. Q Nld around 1990, you worked for AMP; is that true? A Correct. Q And that wc\s in what field of expertise? A Um, I worked in several different areas. I did some structural design of beams and plast.ic products and so forth. My latest position there was project manager where I oversaw electrical, mechanical, structural design, functions and acted as the project manager. Q Would you agree that your work in that capacity at least before you opened your franchise company here, didn't give you any expertise that would help you in this case? A No, I wouldn't agree with that because I did a 10t of structural evaluations and so forth. It didn't deal with anyt.hing in painting. I would agree with that, yes. Q Now, could you give me some idea of -- you say you do residential inspections. Could you give me some idea in what context or what grades or types of inspections you do? A Well, as far as grade of inspection, we do for instance a pre-purchase type inspection, where people would be buying a home, and we would go in and take a 100k at that. home, which would involvo a genera 1 review of the construction quali t.y, any open problems that we would notice, things like 73 "":-:' f"'"'I 1 2 3 4 broad term. Does that include whether they properly sanded and primed and prepped the work area? A Wel1, I tended to define quality as to meeting the intended standards or expectations, And that is kind of, again, why I go back to, if it is a town house, and you are building it for low-entry cost considerations, there are certain things you don't get for the paint job. If you are building high-end, and you are paying 100,125 1 hundred to $125,000.00 for a new const.ruction, then you should expect some of the higher end finishes and details that should be there. So it's important to keep that 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in mind. Had we been looking at a town house property here for $75,000.00, I think it iB a different set of circumstances as compared to the properties we are looking at which are obviously higher end. Q I just want to make clear, regardless of what quality workmanship you are looking at as part of these 400 home inspections, would you comment on whether the walls were properly sanded and cleaned? A We would come and if there was an obvious deficiency, yes. Q Would you comment on deficiency in caulking? A Yes. Q Deficiencies in the type of primer or whether they 76 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 f"'I 1 2 3 4 uS~ld it? A Yes, For instance, if it was not properly covered or showing through or it was one coat and should have been two, yes, we would have fl.a~J9(Jd. Q Would you comment on the issue of overspray or cut lines not being correct? A Yes. MR. EMERY: Your Honor, we submit him tor recross on qualitications. 5 MR. HUBER: MR. EMERY: 'I'HE COURT: field as proffered. No, Your Honor. I apologize, Your Honor. He may testify as an expert in the DIRECT EXAMINATION BY MR. EMERY' Q Now, part of the voir dire process, Mr. Yingst, you raised some issues that I think we need to make clear first. The residence, let's look at that first. You said there are different standards. I think you used an example of town house. How would you describe the residence on that scale? A 'l'he residence is definitely the upper end, luxury or executive style, I had five categories, this would be the top category, basically luxury or executive style, and that is basically defined by higher end finishes, more expensive 77 .~ r'1 - 1 moldings more expensive 1'1.00r finishes, marblo or tile versus 2 lino1eum and carpet, those kind of interior finishes. 3 Q Okay. And do you 100k for a higher quality of 4 painting job then? 5 A Absoluto1y. 6 Q Okay. Now, let's talk about the Graystone. I 7 don't know .if their scale applies to commercial buildings, but 8 how would you describe the Graystone project'l 9 A Well, the Graystone, again, it. is an older 10 building, but it's intended t.o be a higher-leve1 finish as 11 compared to cheap retail or office space. 12 This would -- I am not an expert in appraisals or 13 what it would lease for, but I would assume that building as 14 compared to a typical office building has obvious differences. 15 Q Okay. Putting them both together, we will hit 16 some specifics but general1y how would you describe the 17 standard of work provided by Integra? 18 A 1'here is obvious deficiencies in the paint 19 finishes in the building. I guefls t.he key things that come to 20 mind when you start going over the paint job, when you look at 21 it from a distance, it 100ks nice. 22 When you start to 100k at it in detail, there is a 23 lot of the details that are missing. 1'he specific things are 24 lack of proper caulking 25 THE COURT: Is this in both -- 78 {~ f"'I 1 paint. 2 Q And how long is t.hat 7 3 A Five t.o 10 years, as I said, should not he a 4 problem for a good quality caulk. There are a11 types of 5 caulk out there, and it is foolish not to use a high-end 6 caulk, because of cost differential in caulking, the labor 7 involved, the length that it. will last, in my opinion you 8 spend as much money as you can on the caulk. 9 Q Now, again, the caulking, it is an aesthet.ic issue 10 if it is cr'acking, but does it have a structural rule? 11 A Again, it is a water entry issue. Any time water 12 can get. into the wood, you are going t.o have flaking problems, 13 you ale going to have rot long term. If the wood and moist.ure 14 content goes above 19 pex'cen t , rot wi.ll develop. There is no 15 stopping it in norma 1 use. 16 Q How about the roof? Can you describe for us what 17 you saw? 'I'he metal roof at the Grayst.one project. 18 A I took a look at the roo:. It was on t.he lower 19 roof. I was with a ladder on the lower edges, and also looked 20 what I could see from the ground, besides that -- and from the 21 upper story windows. 22 There wer.o definit.ely areas where the paint is 23 lifting. You can see some rust coming through it. There were 24 areas where 1 saw it looked like it just didn't have enough 25 paint on it to see primer t.hrough it. 82 '~ ,..." 1 2 Q A Okay. Was the metal roof primed'? I oan' t honestly say from my evaluation thus far. 3 Q Okay. In your professional experience should that 4 metal roof have bean prImed bofore pai.nted? 5 A Absolutely. 6 Q How about did you get the chance to review the 7 walls and the quality of the sanding or prep work on the 8 walls? 9 A Yeah. I looked through and there were areas where 10 there are rough spots. This would apply to the trim and the 11 waIls. It looks like minimumal prep work was done. 12 Again, not consistent with what I would expect 13 with -- if you look at the cost that was paid based on the 14 invoices I was supplied, and tho rough square footagH 15 involved, it was about four to four and a quarter per square 16 foot, just in genera 1 rule of thumb, wo.s paid to paint those 17 bui ldings , 18 And for that kind of money, if you look at 19 industry matlls, that is not way out of wack as far as a good 20 quality paint job. It's r.ot in line with, I think, the 21 quality that was done. 1'he quality that was done was probably 22 more like 2 or $3.00 a square foot. 23 Q So I guess to put it plainly, Mr. Fenstermacher 24 didn't get what he paid for. 25 A 1~at is my opinion, yos, 83 ~~'\ ,..., 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Wo arB just talking on the Graystone. Correct? A Yes. a Let's talk about the residence. DOBS the same opinion apply, that Mr. Fenstermacher didn't get what he paid for? A That building, I really only looked at the interior of. I wasn't really asked to look at the exterior. The things that jumpod out, ag",in, there is areas where it is rough finish. 'l'he mantels were not sanded out properly. Some of the trim wasn't sanded properly. ~'he doors were rough. Part of the wall, you can definitely see patched areas that weren't finished up properly. a Is this throughout the house or just a specific area? A Yes. Yes, it is not a matter of just going in and spot repairing the one area. You are going to end up repairing at least a waIl in that area. You know there are some areas where the trim is cut, what they call cut, where basically one paint meets the other. Like a chair rail or crown molding, something like that. And one paint is onto the other. It is not a professional, nice, straight line. a And fox- the high-.cnd standard of painting you are discussing, the cut li.ne specifically, is that fJOmething that should be done right the first time? A Oh, absolutely. You may have to touch up spots, 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~......, (""\ A nilllll! concH tion, 'I'hoy wonm' t pa lnted at the top &nd bottom odgeA, rough finIsh through them. Q Okay, Whon you oay rough finish. 1'he dool's themselves, not tops am] bottom edges? A 'rho tops and bottom edgos were from factory, so they weren't sanded off. 'I'hey were rough, yes. o What causes this rough finish? A They just weren't sanded out properly, dirt under the paint. o And again, are we talking about one door, two doors, all of the doors? A The ma] ori ty / I would say. Q Throughout the house? A Yes. Q InclUding the second and third floor? A Yes, first and second floor. Q Now, I am going to put before you some phot(,s that you took, and just Clln you briefly explain to the Court what they each represent? Actually, before I do that, one quick question back on the office complex. As part of your inspection, did you review the area that we are calling the lease space, the ten/lIlt area? A Yes. Q Did you see any deficiencies in the painting 88 .""', ,..., "- 1 painted. Appanmtly the face of the window was painted, the 2 paint ran, and that is just the way it stayed. 3 Q Is that representative of how many of those 4 windows were'/ 5 A Yes, 6 'I'HE COURT i Tha tis a t the of fice or the home? 7 MR. EMERY: All photos are from the home, Your 8 Hon()!" . 9 THE COURT: Okay. 10 BY MR. EMERY I 11 Q Does that also represent what you saw at the 12 windows at the office? 13 A Yes. 14 Q Okay. Why don't you look at 0-13. 15 A This again shows some more of the window sashes. 16 This we actually tilted a window in, and you can see the 17 unpainted edges around the window and on the top part here as 18 well. So what got painted was basically whatever was exposed. 19 Q Okay. And again, those are from the residence. 20 But does that roflect the quality of paint and standard of 21 paint also done at the Graystone? 22 A I think the windows were better in the office, as 2) I recall. But there was -- there were some issues with this, 24 yes. 25 Q 1'hOl"O are t.wo photos on D-14. Can you briefly 91 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,-,. "....... 1 2 3 4 describe them'! A Photograph 4 shows cracked paint along one of the edges where it was flaking off, and not properly adhering. Photograph 5 shows the crown molding where you can see the edge of the paint is actually about a quarter of an inch off the edge of the crown molding. So the crown molding actually pulled back and llloved away from the edge of the paint.. o Okay. Go to 0"15. A Now, this is an example of a cut line. This is a door trim, and YOLl can see how the paint kind of takes a slight curve out onto the wall along that side of the door. Q Okay. D-16. A And again, hore you have another cut line issue with the paint coming out onto the wall. You can see here at the jamb. You actually see sarno thing here on the ot.her side aD well. o And again, you have specific photos of just the residence, 'l'hese problems exist throughout the two buildings? A Yes, these are tho cut line problems I saw at the office as woll. o And tho last ono I think is 0-17. A 0-17, blue of trim smeared over top of it in this area, I believe. And the ono bathroom the drywall area is patched but nover repainted. ~le one above it, photograph 8, you can actually 5 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 ~3 24 25 .~ ,...... Q Okay, And so I am clear, for t;he office, it is $13 /165. OO? A Correct;. Q And for the home it is ll,OOO? A Correct. Q And you are not taking into consideration the fact that J.f you repaint a wall, it is not going to match the adjoining wall that Wll$ painted three years ago? A Well, that is a eli fficult call. What I did try to do is sit down and look at t.he deficiencies, room by room, and corne up with what I felt was a reasonable cost estimate in terms of man hours to paint the walls, knowing full well in some areas you will have to paint the entire wall to a corner, and knowing in many areas you will have to paint all four. Q Your estimates are fair and reasonable in this area for that type of work? A Yes. MR. EMERY: I have no further questions, Your Honor. THE COURT: MR. HUBER: You may cross. If I could have a moment, please, Your Honor. THE COURT: I am about to impose a five-yard delay of game, so lets move along. 95 ?j ,..., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~~ B.XJIB...-1i1lU I Q Mr. Yingst, do you have a file relating to your involvement in this matter? A Yea. Q Okay. And where is that file? A At my of.fice. Q You didn't bring it with you here today? A No. Q Is there any reason why not? A No, not that I know of. Q What is in your fils? A The file would have the set-up sheet for the project tha t i a normally taken by our scheduler. ! think there is some -- it would have field notes I had taken in at the site, my estimate, those kind of things. Q Have you ever had an attorney ask to look at your file, and ask you to look at it when you've testified in a matter? A I don't think I had. Q That didn't have anything to do with bringing it along today? A No. Q You were -- I think your report indicates you did your inspection in July of last year; is that true? 96 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 .::'} f"'\ A Y08, Q You mentioned during your direct examination that sometimes you get involved in inspect ions of properties at the taU end of conlOtruction to advl.se owners of little things or some things that need to be finished or given attention before settlement or whatever, Do you recall that testimony? A Yes, Q And I know I am paraphrasing it to some extent. You are fami liar wi th the terlll punch list / I assume? A Yes. Q And '~hat is a punch list? A A punch list is typically a list of final completion items that the building owner, general contractor, building owner's representative will go through the bui.1ding and create a list of things that need to bo finished. Q And would you agree that in construction projects, particuliirly new construction projects, it .is customary to work up a punch list and have that concluded at the various site? A Yes. Q And a person doing time and materials work, a contractor working on time and materials, customarily they would be paid for their tillle doing punch list items; isn't it true? A Yes. 98 """" ~ 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 Q Do you havo any idea whether a punch list was done at this particular site, Mr. Yingst? A No, I don't. Q What about at the home? Do you know whether a punch list was done there? A No, I don't. Q One of the things you mention in your report was a staircase. Do you recall that at the Fenstermacher home? A Yes. Q And you were critical of some painting work done on the staircase. I assume you mean staircase on first and second floors? A Yes. Q And was the cost of redoing work on the staircase part of the figures that you gave in your estimates in this matter? 17 A Yes. IS Q 'Phe paint / the trim paint at the office, do you 19 know what kind of paint that was? 20 A No, I don't. 21 Q i'lhat about the home? Do you know what kind of 22 paint that was? 23 A No, I don't. 24 Q Do you agree that otl and latex paints have 25 dif f eren t characteristics? 99 ''"':'\ ~ 1 2 3 4 A Yeah. Q And the outcome with those two kinds of paint can be different'l A Yes. 5 Latex iB water baae paint: is that true? Q 6 7 8 9 10 11 12 13 14 15 A Correct, Q And oan latex paint affect the -- I don't know what the right term I want to use. I know you used it during your direct examination affect the moisture content of the affected surface? A Can it affect the moisture content? Normally you are primed before that. It certainly can have an affect, but I am not sure what you are asking about, Q Well / let me ask it this way, would you agree with me that latex paint can have a rougher finish than oil paint? 16 A Yes. 17 Q Do you know who chose to use latex paint at the 18 home, at this property? 19 A No, I have no idea. 20 Q Some of your testimony dealt with the doors in 21 22 23 24 25 particular, I recall, but also some of the molding and chair rail work dealt with shrinkage or movement of the wood; is that right? A Correct. Q And would you agree with me, sir, that sometimes 100 ....., f""'1 1 2 3 4 5 6 '7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 doors and trim and so forth can shrink and move even If the painter has done a good job? A Things t:an atill move whenever the moisture content is going to fluctuate. 'I'he idea is you try to do the right things to make sure that the absorption and moisture content change is minimized. Q So would you agree with me, then, sir, sometimes even if the painter does a good job, you can get shrinkage and movement of doors and trim and wood surfaces? A Yes, but. not to the extent that I saw in reviewing those properties. Q And the kind of movement would create gaps in the painted finish because of the shifting of panels, for instance, in doors. Right.? A Not if it had been properly prepared and painted and finished, not to the extent that we have happening now. Q Okay. So it can happen, but you are saying not to the extent that you saw? A On a much slllaller scale, yes. Q One other thing that you criticized HR, HUBER: Could I have just one moment, please, 24 25 Judge? BY MR. HUBER I Q Um, one of the other things you criticized in your report, the shutters at the office property. 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 """) ~ A Yes. Q And what color weI'e the shutters when you lOOKed at them? A I don't honestly remember without looking at the photographa. Q Do you have any photographs of this in your report? A I am not sure if they were even on the photographs. I don't recall. They were a darker color but __ Q Like a gray? A It could have been, 16th when I looked at them, 2001. I don't know. It was July I don't honestly remember if it was a gray or a green. Q And you said in your I'eport, if I can locate it here. looking at Item 5/ runs in paint were noted on several shutters, and are particularly prominent on right front, first floor shutter, at the right side of the building. Right? A Correct. Q So whoever painted that shutter didn't do too good of a job. Right? A Correct. Q Uh-huh. MR. HUBER: That's all of the questions I have, Judge. THE COUR'I': Any redirect? 102 1 2 3 4 5 6 "/ 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 :? ~ MR. EMERY: Yes, Your Honor. RIlDIREC'l' ,JUf,AMINATION U.....HB.. EMER"I: Q The last point was on the shutters. Mr. Yingst, how much of the 13,000 and some change estimate for the repair of the office is attributed to the shutters? And you can look at the last page of your report? A The cost I have in there, the $250.00/ that is basically to clean up the shutter.s due to some of the distress and plugging holes and so forth. But. I did have additional moneys t.o resand and prime and pai.nt them. Q Okay, A I don't know off the top of my head what that number was. Q Okay. That is fine. You talked a little bit about the punch list, and certainly in your experience you would understand that after a project is done, someone might generate a punch list. But your report goes through numerous items. Are those items that would typically be resolved at a punch list or are those items that should have been done right the first time? A Well, there are a lot of issues there that were not done right the first time involving sanding, priming, 24 properly preparing. You know / a key example of that is the 25 over spray on the windows, as well. 103 ,:) "...., 1 2 3 4 And the fact that you have runs in the paint on the edges of the windows and portions of the windows that were not painted, that: clea.rly was missed and not propeI'ly done, that is not: Gomet:lling I would view in a punch list as additional time and lllaterial cost. It waa work improperly done in the first place. Q In your experience when a contractor, including painters, come back and work on a punch list, they bill at their hourly rate. Correct? A Well, on a punch list typically everything is covered by th(~ cost of the construction project. Now, if it is straight time and material, even these were additional items not damage items and not: defective, time and material at normal rates, yes. MR. EMERY: 'I'hat is all of the questions. THE COURT: Any recross? MR. HUBER: No, Your Honor. THE COUR'I': 1'hank you, sir. You may step down. We are going to break until 1:30, reconvenient at 1:30. MR. EMERY: If I could stay on the record, Your Honor. That was my last witness. We will close. I guess that is sort of the end of our defense and our case-in-chief. THE COUR'r: We wi 11 do the housekeeping. I understand you have rebuttal; is that correct? MR. HUBER: Yes, Judge. 5 6 7 S 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 104