HomeMy WebLinkAbout05-6316IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
Civil Action - Law
V. No. AD 2005 - (o / c
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
NOTICE
You have been sued in court, if you wish to defend against the claims set forth in the
following pages you must take action within twenty (20) days after this complaint and
notice are served, by entering an appearance personally or by attorney and filing in
writing with the court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested by the plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 249-3166
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
Civil Action - Law
V.
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
Aviso
No. AD 2005 -
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de
la fecha de la demanda y la notificacion. Hace falta asentar una comparesencia escrita
o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o
sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no
se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin
previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y
requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede
perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCIONSE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 249-3166
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
Civil Action - Law
V.
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
COMPLAINT
No. AD 2005 -
Plaintiffs, Gary Mitchell and Linda Mitchell, by and through their attorney, Joseph A.
Macaluso, by way of complaint, complains of defendant, George Beamenderfer d/b/a/t/a
BHI, Beamenderfer Home Improvements, and for a cause of action allege:
1. Plaintiffs, Gary Mitchell and Linda Mitchell, are sui juris adults who reside at 1045
Oyster Mill Road, Camp Hilt, Pennsylvania 17011.
2. The defendant, George Beamenderfer is a sui juris adult engaged in the construction
business, maintaining offices at 603 Mountain Street, Summerdale PA 17093.
3. On or about September 15, 2004, plaintiffs and defendant entered into a contract for
defendant to construct an addition (hereinafter referred to as the "Addition") onto plaintiffs'
residence at 1045 Oyster Mill Road, Camp Hill, Pennsylvania 17011, in accordance with a
written bid (a copy of the written bid is attached hereto as Exhibit A).
4. The plaintiffs and defendant agreed upon the contract price for the Addition in the
amount of $83,446.00, including all labor and materials.
5. In or about early October, 2004 (plaintiffs did not record the date), defendant
applied for and was granted a building permit from East Pennsboro Township for
construction of the Addition, dated October 6, 2004 (a copy of the permit is attached
hereto as Exhibit B).
6. Defendant constructed the Addition from October 4, 2004 to December 30, 2004
7. Defendant completed the Addition on or about December 30, 2004, although
defendant left some work unfinished, to wit: installation of a garden window, clean-up of
debris, repair of damage to the foundation walls, pre-existing support beams, the electrical
wiring system and a variety of finishing detail.
8. In or about March 2005, plaintiffs hired Troy Street to finish up the work left
incomplete by defendant as described above in Paragraph 7.
9. On or about March 22, 2005, plaintiffs applied to East Pennsboro Township for a
permit for Street to do the work listed above in Paragraph 7
10. When Street began the work, he discovered that there was no hard wall in the
frame and had to build one around the window installation.
11. Street then suggested that plaintiffs look in their electrical box to see if the wiring
was approved.
12. Plaintiffs examined their electrical box and discovered that there was no approval
indicated.
13. On or about March 212005, plaintiffs contacted Harry Taylor, an electrical
inspector, who gave them a verbal report only on what needed to be done to have their
wiring aproved.
14. Street began work to install the garden window and he had to install plywood on
the entire length of the south side of the Addition where the garden window was to be
installed.
15. When Street removed the siding on the south side of the Addition, the siding came
away from the Addition without the use of tools, because defendant had nailed the siding
in such a way as not to have the nails placed into the studs, and there was no sheathing
on the exterior of the Addition between the studs and the siding.
16. Plaintiffs discovered a small triangular piece of siding under the roof peak on the
East side of the Addition that fell out because defendant had not used nails (there were no
nail holes) or glue or anything else to secure it to the Addition.
17. On or about March 15, 2005, plaintiffs went to the offices of East Pennsboro
Township and examined the building permit application, at which time plaintiffs discovered
that defendant had set forth the cost for the construction for the Addition as $4,500.00
instead of $83,446.00. A copy of the application is attached hereto as Exhibit C).
18. On or about March 21, 2005, Harvey Taylor advised plaintiffs that the panel box
was not wired properly, that the wrong gauge wire was used (upon information and belief,
14 gauge wire was used instead of 12 gauge wire), and that the walls would have to be
taken down to expose all the wiring for inspection.
19. On or about March 22, 2005, Jeff Shultz, East Pennsboro Township Building Code
Inspector, inspected the Addition and advised plaintiffs that the frame would have to be
taken down because the new building code required insulation having an R18.5 factor,
and that the 2"x4" frame would probably not accommodate this insulation, and therefore,
plaintiffs must replace the 2"x4" stud framing with 2"x6" stud framing.
20. On this visit, Shultz also advised plaintiffs that they had just 60 days to rebuild to
comply with the East Pennsboro Township Building Code or plaintiffs must move out of
their residence.
21. In or about March, 2005, plaintiffs received a letter dated March 24, 2005, from
Shultz giving plaintiffs 90 days to submit a plan. (A copy of that letter is attached hereto as
Exhibit D.)
22. On or about April 8, 2005, plaintiffs wrote to defendant (a copy of that letter is
attached hereto as Exhibit E) to describe the defects in the Addition and give defendant an
opportunity to cure these defects, and plaintiffs also enclosed a copy of the March 24,
2005, letter from Shultz. However, defendant did not respond to the plaintiffs letter.
23. On or about March 15th, 2005, plaintiffs contacted Dick Floyd, an electrician, to
rewire the Addition, who advised plaintiffs to first have a certified building code inspector,
inspect the wiring in the Addition and make a report to determine what wiring needed to be
done to bring the electrical system into compliance with the building code.
24. On or about April 10, 2005, Street prepared a plan for the work required to be done
for the Addition to be in compliance with the Building Code of East Pennsboro Township.
25. On or about April 13, 2005, Shultz responded with a letter listing 14 issues that
needed to be addressed to bring the building and plan into compliance with the East
Pennsboro Township Building Code (a copy of that letter is attached hereto as Exhibit F).
26. On or about April 20, 2005, plaintiffs sent defendant another letter (a copy of that
letter is attached hereto as Exhibit G) by certified mail return receipt giving him an
opportunity to cure the defects and this time enclosed a copy of the April 13, 2005, letter
from Shultz. Plaintiffs also sent this letter by first class mail. The certified letter was
returned by the U.S. Postal Service marked REF for Refused, but the regular mail letter
was not returned.
27. Defendant had promised plaintiffs that there would be a large storage area or attic
in the Addition, but his construction wouldn't even support a floor on the beams, and the
roof support was a heavy cobwebbing of 2"x4" supports.
28. The meeting to submit the plan to East Pennsboro Township within 90 days was
held on May 9, 2005.
29. At this time plaintiff learned that defendant's entire construction was built on flake
board and that this was inappropriate for and was subject to deterioration in a flood zone
where plaintiffs' residence was located.
30. There is no other proceeding pending involving the subject matter of this case and
there are no other parties in interest.
COUNTI
BREACH OF CONTRACT
31. Plaintiffs repeat and re-allege the allegations of Paragraphs 1 through 30 inclusive
above as though set forth in extenso.
32. Defendant failed to perform or complete the agreed upon work in accordance with
the Building Code for East Pennsboro Township, as follows:
a) electrical wiring, plumbing, frame, and roof were not inspected;
b) the work of defendant on the Addition did not comply with the East Pennsboro
Township Building Code, as set forth in Exhibit F hereto;
c) defendant made holes in the support beams in the basement of the Addition
and in the foundation of the plaintiffs residence and failed to repair same;
d) defendant destroyed plaintiffs aluminum ladder, sledge hammer, and damaged the
plaintiffs' driveway;
e) defendant did not attach the deck to the residence properly, to wit, he did not use a
ledger and lag screws; and
f) defendant disconnected wiring in the basement and to the outside shed.
33. Defendant's failure to perform or complete the agreed upon work in accordance
with the building code for East Pennsboro Township, as set forth in Paragraph 32 above
constitutes a breach of contract.
34. As a direct result of the breach of contract by defendant, plaintiffs will incur
expenses for another contractor to complete and/or perform the work in accordance with
the building code for East Pennsboro Township.
35. Defendant is liable to plaintiffs for breach of contract.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant for
monetary damages exceeding $25,000.00, together with interest and costs of suit, being
more than the jurisdictional amount requiring arbitration referral by local rule, and for such
other relief as the Court may deem proper.
COUNT II
NEGLIGENCE
36. Plaintiffs repeat and re-allege the allegations of Paragraphs 1 through 30 inclusive
above as though set forth in extenso.
37. Defendant owed a duty to plaintiffs to construct the Addition in accordance with the
building code for East Pennsboro Township.
38. Defendant breached his duty by preparing a false application to East Pennsboro
Township for a building permit as set forth in Paragraph 16 above, and by failing to
construct the Addition in accordance with the building code for East Pennsboro Township
as set forth in Paragraph 32 above.
39. This constituted negligence.
40. Defendant is liable to plaintiffs for negligence.
41. As a direct and proximate result of the negligent conduct of defendant, plaintiffs
have suffered damages and will continue to suffer damages, to wit: plaintiffs will incur
expenses for another contractor to complete and/or perform the work on the Addition to be
in compliance with the building code for East Pennsboro Township.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant for
monetary damages exceeding $25,000.00, together with interest and costs of suit, being
more than the jurisdictional amount requiring arbitration referral by local rule, and for such
other relief as the Court may deem proper.
COUNT 111
FRAUDULENT MISREPRESENTATION
42. Plaintiffs repeat and re-allege the allegations of Paragraphs 1 through 30 inclusive
above as though set forth in extenso.
43. Defendant represented to plaintiffs that he would obtain a building permit for the
work to construct the Addition as per the contract between the parties, but instead
defendant by prepared a false application to East Pennsboro Township for a building
permit as set forth in Paragraph 16.
44. Defendant held himself out to the public and to plaintiffs as a builder and defendant
represented to plaintiffs that he would construct the Addition in accordance with the
building code for East Pennsboro Township, but instead defendant built the Addition in
violation of said Code as set forth in Paragraph 32 above.
45. The aforesaid representations by defendant to plaintiffs constitute material facts
pertaining to the contract to construct the Addition, which the defendant should have
reasonably expected to induce reliance upon by plaintiffs.
46. Plaintiffs have no expertise in construction and reasonably relied upon the
representations by the defendant as aforesaid.
47. Notwithstanding the defendant's aforesaid representations, defendant prepared a
false application to East Pennsboro Township for a building permit as set forth in
Paragraph 16 and defendant constructed the Addition in violation of the building code for
East Pennsboro Township as set forth in Paragraph 32 above, and defendant knew that
he would do so at the time of his representations set forth in Paragraphs 43 and 44 above.
48. The misrepresentations of material fact by the defendant constitute fraudulent
misrepresentation by him to plaintiffs, which was not revealed to plaintiffs until they
examined the building permit as described in Paragraph 14 above, and had Street pull the
siding off the Addition as described in Paragraph 16 above.
49. The conduct of the defendant was outrageous, with bad motive, and with reckless
indifference to plaintiffs' interests, such that the defendant is liable for punitive damages.
50. Plaintiffs have incurred injury as a direct result of the fraudulent misrepresentation
by the defendant, to wit, plaintiffs will incur expenses for another contractor to complete
and/or perform the work on the Addition to be in compliance with the building code for
East Pennsboro Township.
51. Defendant is liable to plaintiffs for fraudulent misrepresentation, for all pecuniary
loss suffered by plaintiffs as a consequence of the misrepresentations by the defendant,
including costs and expenses for another contractor to complete and/or perform the work
on the Addition to be in compliance with the building code for East Pennsboro Township,
plus punitive damages, reasonable attorneys fees, and costs of suit.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant for
monetary damages exceeding $25,000.00, together with interest and costs of suit,
punitive damages, and reasonable attorneys fees, being more than the jurisdictional
amount requiring arbitration referral by local rule, and for such other relief as the Court
may deem proper.
COUNT IV
NEGLIGENT MISREPRESENTATION
52. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 30 inclusive
and Paragraphs 43 through 47 inclusive above as though set forth in extenso.
53. Defendant owed plaintiffs a duty not to make false representations to them.
54. The misrepresentations of material facts by defendant as set forth in Paragraphs
43 and 44 inclusive above, constitute negligent misrepresentations by the defendant-
55. Defendant is liable to plaintiffs for all pecuniary loss suffered as a consequence
thereof, including costs and expenses for another contractor to complete and/or perform
the work on the Addition to be in compliance with the building code for East Pennsboro
Township as set forth in Paragraph 32 above.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant for
monetary damages exceeding $25,000.00, together with interest and costs of suit, being
more than the jurisdictional amount requiring arbitration referral by local rule, and for such
other relief as the Court may deem proper.
COUNT V
VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW
56. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 30 inclusive
and Paragraphs 43 through 47 inclusive above as though set forth in extenso.
57. The contract for the Addition and application for building permit and construction of
the Addition by defendant constitute trade and commerce within the meaning of 73 P. S.
Section 201-2 (3).
58. Defendant engaged in "unfair or deceptive acts or practices", by "(r)epresenting
that goods or services have ... characteristics ... uses, benefits ... that they do not have"
within the meaning of 73 P. S. Section 201-2 (4)(v), by reason of the following:
a. Defendant represented to plaintiffs that he would obtain a building permit for the
work to construct the Addition as per the contract between the parties, but instead
defendant by prepared a false application to East Pennsboro Township for a building
permit as set forth in Paragraph 16.
b. Defendant held himself out to the public and to plaintiffs as a builder and
defendant represented to plaintiffs that he would construct the Addition in accordance with
the building code for East Pennsboro Township, but instead defendant built the Addition in
violation of said Code as set forth in Paragraph 32 above.
59. Defendant engaged in "fraudulent conduct which creates a likelihood of confusion
or of misunderstanding" within the meaning of 73 P. S. Section 201-2 (4)(xai), by reason of
the following:
a. Defendant represented to plaintiffs that he would obtain a building permit for the
work to construct the Addition as per the contract between the parties, but instead
defendant by prepared a false application to East Pennsboro Township for a building
permit as set forth in Paragraph 16.
b. Defendant held himself out to the public and to plaintiffs as a builder and
defendant represented to plaintiffs that he would construct the Addition in accordance with
the building code for East Pennsboro Township, but instead defendant built the Addition in
violation of said Code as set forth in Paragraph 32 above.
60. Defendant is liable to plaintiffs for treble damages and reasonable attorney fees
pursuant to 73 P. S. Section 201-9.2.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant for
treble damages, together with interest thereon, costs of suit, and reasonable attorney's
fees in an amount more than $25,000.00 and being more than the jurisdictional amount
requiring arbitration referral by local rule, and for such other relief as the Court may deem
proper.
Submitted,
Joseph A. Macaluso, Esq:
pre a Court I. D. No. 38262
Att y for Plaintiffs
P.O. Box 83
Orrstown, PA 17244
(717) 532-4832
VERIFICATION
We, Gary Mitchell and Linda Mitchell, verify that the statements made in the foregoing
complaint are true and accurate to the best of their personal knowledge, information and
belief. We understand that my statements are made subject to the penalties of 18 Pa. C.S.
Section 4904, relating to unsworn falsification to authorities.
!/ V y
Gary Mif
Linda Mitchell
mac:-tib-tUVV 12:60 PM MAILROOM 717 975 9593 P.03
BEAMENDERFER3 HOME IMPROVEMENTS
C31Cr ? P.O. Box 132 $ummerdale Pa 11093
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We nre phased to submit the In!luwinp bid,
Job Dowiption. Remov
s bedroom one bath Home with double hung windowes
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BUILDING PERMIT APPLICATION
EAST PENNSBORO TOWNSHIP 98 South Enola Drive Enola, PA 17025-2796
QUESTIONS? Call (717) 732-0711, ask for Building Department.
Use this application for.
ADDITIONS - ALTERATONS - REMODELING - SIGNS - SWIMMING POOLS
SHEDS LARGER THAN 100 sq. ft. IN AREA - ALL DEMOLITIONS
1. Fill in all blank spaces and sign in space provided.
2. Provide site drawing showing of the property showing all property lines, existing
buildings and easements; locate proposed construction on the drawing, showing
measurements to all property lines.
3. Provide floor plan of existing building and proposed changes. Label rooms. Provide
detailed construction drawings showing footers, foundation, framing, roof construction;
include railing and steps for decks and porches.
4. For sign permits, provide site drawing with location of existing and proposed signage.
Include sign size and content.
S. PA State law (Act 44) requires contractor to provide a Certifica"e of Worker's
Compensation Insurance coverage before permit is issued. Self-employed contractors
should submit a signed notarized affidavit provided by this office.
DATE OF APPLICATION.
PROJECT SITE Complete Address:
PROPERTY OWNER'S NAME:
OWNER'S FULL ADDRESS: / C/ X15 D VSfe r /i! l I k7 A, :-) I -kD4 I?O;
OWNER'S PHONE NUMBER: h 1 10 -23-7 - )
CONTRACTOR'S NAME:
CONTRACTOR'S FULL ADDRESS: Lens- Sf_ P? l?cY 13J Su,•nm d4lc' Tti l?v?r3
CONTRACTOR'S PHONE NUMBER: hI-7) -7 oL cr
CONTRACTOR'S FEDERAL I.D. OR SOCIAL SECURITY NUMBER:
WILL SUBCONTRACTORS BE USED? Yes No
DESCRIPTION OF WORK:
-- = - :''
CONSTRUCTION COST: $ ' I b DO ®d -- -.
ESTIMATED DATE OF COMPLETION:
V SIGNATURE (contractor or owner): X d 1 ??
FOR OFFICE USE ONLY
Tax Parcel No. - Permit Fee 0O
AUTHORIZED SIGNATURE:.
6A Ohl+ C
JOSEPH H. BONNARIGO
Twp. Engineer/P.W. Dir.
JEFFREY SHULTZ
Bldg. Inspector & Code Enforcement Officer
ROBERT GOULD
Code Enforcement Officer
JOHN B. OWEN
Dir. of Housing & Community
Development/Zoning Officer
KAREN DUNKLE
Health & Code Enforcement Officer
JOYCE STOM
Department Secretary
EAST PENNSBORO TOWNSHIP
March 24, 2005
Mr. & Mrs. Gary Mitchell
1045 Oyster Mill Road
Camp Hill, PA 17011
Re: Construction Violation
CERTIFIED MAIL 7003 3110 0006 3956 0039
First Class
Dear Mr. & Mrs. Mitchell,
After inquiring to numerous East Pennsboro Township employees I am
finding the facts surrounding the Building Permit that Mr. George Beamenderfer
applied for on October 6, 2004. Mr. Beamenderfer's submitted, signed Building
Permit application states that a roof replacement was the scope of work
intended, at a cost of $4,500. 1 now find that not only was the roof replaced, but
an entire 2"d floor was added to the structure and then a new roof added.
All such construction requires a Building Permit Application, complete with
Building Plans. Upon receipt of all required documents the Building Code Official
performs a Plan Review to determine that the structure will be constructed in
accordance with the Township's adopted Building Code. When approved by the
Code Official, construction may commence, followed by frequent inspections to
confirm compliance with the submitted plans. This procedure is part of PA State
Law and is designed to protect life, safety, and welfare of the residents of the
Commonwealth. The burden of enforcement is placed on the East Pennsboro
Township Building Code Official
Regarding the phone conversations that I have had with both of you on
March 23, 2005, 1 would like to make a few recommendations. I would suggest
that you please do not dismantle or remove any building materials from the
structure, UNTIL a qualified contractor accesses the home' The foam insulation
board that was installed„to the exterior may be necessary to meet the Energy
requirements of the Building Code. There are many portions of the structure that
jEx X11 L 11
Mr. & Mrs- Gary Mitchell
March 24, 2005
Fag-- 2 of 2
may horde to be exposed to determine tnat the structure hss barn ;jolt: to 1113
minimum Building Code standards as adopted by East Penrsoc:re -!: ov.rshi;.,
I, is imperative that complete, comprehensive Builcing Plars be, sGbclid-ad
for review. After the Plan review is completed the Building Departmen, and .h_
Contractor can determine what areas of the structure must ua a,-Tosed. I; is r:ct
the intent of this Department to cause further expense to /ou, but -net Ely t C)
determine that the construction meets the minimum requi: eme-rs c J-,.-
Code and that all occupants may reside in a structure than is sate.
I am offering a 90 day time frame for you to gather aA infc-m: i;?ii )71 ;or U-A?
above noted structure.
if you have any questions, please do not hesitate to conta:ci rre
Thank you,
Jeffrey S. Shultz
Building Inspector, Codes Enforcement Officer
Cc: Mr. John B. Owen
Linda Mitcheil
Gary Mitchell
717 737-1336
George Beamenderfer
PO Box 132
Summerdale PA 17093
April 8, 2005
Dear Mr,. Beamenderfer;
1045 Oyster Mill Road, Camp Hill, PA 17011
Enclosed is a copy of a letter dated March 24, 2005 from Jeffrey Shultz, Building Inspector and
Code Enforcement Officer of East Pennsboro Township. Enclosure #2 is a copy of a
comprehensive Building Plan developed by Troy Street and submitted to the Township on
April 7, 2005. Troy Street is the person you suggested I contact to finish construction on my
home; he has a 5 year degree in Engineering; you told me you were in California when this issue
came up; and I felt it was imperative to come into compliance as quickly as possible so that we
would not have to evacuate our home for safety reasons. Mr. Shultz informed us verbally that if
we were not in compliance in a limited time period we would not be issued an occupancy permit
and would have to leave our home.
Enclosure #3 is a receipt from PCCA for code books purchased at the suggestion for Mr. Jeff
Shultz.
We are hoping to start rebuilding our home April 18, 2005. It is my understanding that the
exterior siding will have to be removed so that appropriate wall bracing and insulation can be
installed. We understand that once the wiring is exposed on the exterior walls, that all wires must
be replaced and inspected before the house can be closed up. We understand that the dry wall
on the interior walls must come down so that wiring can be replaced and subject to inspection,
and then of course new dry wall and finishing work must be completed. I do not have the report
back from the Electric Inspector but he said verbally that the panel box is not wired properly and
few outlets needed to be installed to bring the wiring up to code. I want my wiring certified in
order to obtain Home Owners Hazard Insurance and to bring the house into code.
Enclosure # 4 and #5 are lists of issues not complete while you were here working on the house.
Enclosure # 6 is a list of damages and cleanup
Enclosure 7 is documentation of cost for installation of the propane gas fireplace. You asked for
$1800, 1 gave you $2000 and this was to cover the total cost. You paid approximately $611.00
for the fireplace itself.
This letter is an attempt to allow you to remedy this problem. Please contact me by letter before
April 18, 2005 as to your interest in this issue. We want to eliminate our fear of fire and incurring
further damage to the building structure as well as acquiring an occupancy permit as soon as
possible.
Thank you for your time and consideration of our problem.
Sincerely,
z?'uq ?a ? ?/Cc??4
Linda and Gary Mitchell
JOSEPH H. BONNARIGO
Twp. Engineer/P.W. Dir.
JEFFREY SHULTZ
Bldg. Inspector & Code Enforcement Officer
ROBERT GOULD
Code Enforcement Officer
JOHN B. OWEN
Dir. of Housing & Community
Development/Zoning Officer
KAREN DUNKLE
Health & Code Enforcement Officer
JOYCE STOM
Department Secretary
EAST PENNSBORO TOWNSHIP
PLAN REVIEW COMMENTS
Date: 04/1312005
Site Address: 1045 Oyster Mill Road
Owner. Gary & Linda Mitchell 737-1336
Contractor: Unknown
Applicable Code(s): 2003 International Residential Code & 2004 PA UCC
This initial plan review has been performed based upon the submitted app icateon
with accompanying plans and attached permiltsiforms.
This review has been conducted with respect to the above applicable code(s)
and its requirements. Any oversight or omission does not indicate to the applicant
any waiver of the requirements or regulations of this code, or otherwise relieve the
applicant from complying with all applicable provisions thereof.
The following information and corrections are required for review completion.
Code Section Comments
Energy Compliance method and information not submitted @ plan for review and
approval.
2. R106.3.3 The following submissions are required and to include but not limited
to;
HVAC
- size, type, and efficiency of all appliances
- duct material and R-value for energy compliance
Required comfort Heating system not indicated @ plan.
Plumbing
- riser diagram or isometric noting types of materials, solvents, piping
sizes, traps, and vents.
98 South Enola Drive • Enola, PA 17025-2796 • (7173 732-0711
Fxho6,4 F
-3 arv $. Lmda Mitchell
1045 Oyster Mill Road
?ase2of3
3.
a
5.
6.
7
- Electrical Plans are required to be submitted, reviewed, end
approved from a listed Third Party Agency of East Pennsborc
Township. Upon review, these approved documems must be
submitted with Building Permit Application.
n303.3 Bath exhaust not indicated @ floor plan r electr:cal la-.
8307.2 Well surfaces within bathroom tub/shower spaces musit be of
nonabsorbent material from finished floor to a height of no, less than
6 feet.
R309.2 If dwelling unit includes a basement garage, the iving spa,,e above
must be protected with garage ceiling of not less than one layer of
5/8" Type X gypsum.
R310.1 Manufacturer window schedule is required to reflect the following,
- height above finished floor may not exceed 44"
- clear openable height of 24"
- clear width of 20"
- clear opening of 5 sq. ft @ grade and 5.7 sq. ,t. uaove grade
to determine egress requirements.
R311.5 Framing detail of stairs to basement and deck to grade must be
submitted for review. Plan must indicate the following;
- 6' 8" Clear ceiling height is required
- rise/run shall be 81/4" max and 9" min
- handrail, guard rail, and ballisters must eompiy with height and
spacing requirements.
3. R313
9. R319.1
"0. R403
11. R403.1.6
Power requirements for smoke detectors shall be hard-wired .with
battery back-up.
Sill plate shall be of wood resistive to decay, ie; pressure treatcc.
Detail of deck footing not submitted @ plan. depth of footing
shall be minimum 36" below frost and sized to carry the imposed load.
Foundation anchors not indicated @ plan.
Gary & Linda Mitchell
1045 Oyster Mill Road
Page 3 of 3
12. 8502 Floor and deck framing detail is required. Identification of framing
lumber shall include all of the following;
- size
- spacing
- span
- specie
- grade
13. R502.11.1 Signed and sealed Truss drawings not submitted @ plan.
14. R602 Wall framing lumber shall be identified to include all of the following:
- size
-spacing
- span ;
specie
- grade'
Fire blocking, drilling; and notching of all lumber shall be in
accordance with code requirements. Protection of all piping and
wiring must be confirmed and approved.
Header sizes over all openings must be confirmed and approved for
permitted spans.
15. R806 Roof ventilation not indicated @ plan.
16. R807 Attic access @ sheet # 4 not sized. Minimum size shall be 22" X 30"
17. R905.2.7.1 Ice protection not indicated @ roof detail.
If you have any questions, please don't hesitate to contact me.
Thank you,
Jeffrey S. Shultz
Building Inspector, Codes Enforcement Officer
--ti
Linda Mitchell
717 737-1336 1045 Oyster Mill Road, Camp Hill, FA 17011
April 20, 2005
Dear George,
Enclosed is the second letter from the Township. Looks like extensive work to me. Is
there anything you want to do to remedy this situation? If so please put suggestions in
writing.
You said to me you needed to "cut corners" because of the money. We thought $95,060
would ensure a safe house. That's the core issue in our misunderstanding I guess.
Saving $30 for a cheaper gage wiring is going to cost me a lot of money to tear down the
drywalls, replace the wiring and have it inspected.
Sincerely,
Linda L. Mitchell
E:x h' 61+ G
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, 1
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-06316 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MITCHELL GARY
VS
BEAMENDERFER GEORGE D/B/A/T/A
RONALD HOOVER
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsyivania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon.
BEAMENDERFER GEORGE D/B/A/T/A BHI BEAMENDERFER HOME IMPROVEM the
DEFENDANT , at 1753:00 HOURS, on the 3rd day of Janua?_, 2006
at 603 MOUNTAIN STREET
SUMMERDALE, PA 17093 by handing to
JACKIE BEAMENDERFER, WIFE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs
Docketing 18.00
Service 28.16
Postage .37
Surcharge 10.00
nn
J V . J J
Sworn and Subscribed to before
,or
me this j/ day of
A.D.
Prod ota
So Answers:
R. Thomas Kline
01/06/2006
JOSEPH MACALUSO
By:
Deputy Sh riff
Carly J. Wismer, Esquire
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108
717-234-4161
Attorney for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER
d/b/a/t/a BHI, BEAMENDERFER
HOME IMPROVEMENTS,
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:NO: 2005-6316 CIVIL
NOTICE TO PLEAD
TO: Gary Mitchell and Linda Mitchell
c/o Joseph A. Macaluso, Esquire
PO Box 83
Orrstown, PA 17244
YOU ARE REQUIRED to plead to the within New Matter within 20 days of
service hereof or a default judgment may be entered against you.
GOLDBERG I ATZMAN, P.C.
Date: January 31, 2006
BY:
Carly]. Wismer, Esquire
Attor ey I.D. # 92598
PO Box 1268
Harrisburg, PA 17108-1268
717-234-4161
Attorneys for Defendant
Carly J. Wismer, Esquire
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108
717-234-4161
Attorneyfor Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
V.
GEORGE BEAMENDERFER
d/b/a/t/a BHI, BEAMENDERFER
HOME IMPROVEMENTS,
Defendant
:NO: 2005-6316 CIVIL
ANSWER
AND NOW, comes Defendant George Beamenderfer d/b/t/a BHI,
Beamenderfer Home Improvements, by and through his attorneys, Goldberg
Katzman, P.C., who state:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted in part, denied in part. It is admitted that the Defendant
applied for a building permit from East Pennsboro Township, it is denied that the
permit was for the construction of the Addition, rather as per the Plaintiffs' request
the permit was for the reconstruction of a roof only.
6. Admitted.
7. Admitted in part, denied in part. It is admitted that the Defendant
completed the addition on or about December 30, 2004, it is denied that the
Defendant left some work unfinished.
8. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
By way of further answer, it is denied that the Defendant left work on the house
incomplete.
9. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
By way of further answer, it is denied that the Defendant left work on the house
incomplete.
10. Denied. It is denied that there was no hard wall in the frame. To the
contrary, the Defendant used Celotex with Oriental Strand Board on the corners and
every twenty feet.
11. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
12. Admitted.
2
13. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
14. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
15. Denied. It is denied that Defendant did not nail the siding into the studs.
By way of further answer, Street was present and helped with the construction of the
Addition.
16. Denied. It is denied that Defendant did not use nails or glue or anything
else to secure the roof peak to the Addition.
17. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
By way of further answer, it is denied that the Plaintiffs "discovered" after the
construction of the Addition that the building permit application set forth
construction for the Addition as $4,500.00 instead of $83,446.00, rather it was the
Plaintiffs who had requested the Defendant complete the application in the manner in
which it was.
18. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
Defendant denies that the panel box was not wired properly, furthermore, Defendant
used both 14 gauge wire and 12 gauge wire.
3
19. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
It is denied that the Addition did not comply with the building code requiring an
R18.5 factor.
20. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
21. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
22. Admitted in part, denied in part. It is admitted that the Plaintiffs wrote
to Defendant. It is denied that the were defects in the Addition and that the
Defendant did not respond to the Plaintiffs' letter, to the contrary, Defendant spoke
to Linda Mitchell on the phone to discuss the correspondence.
23. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
24. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
25. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
26. Denied. Defendant has no specific recollection of having received said
documents.
4
27. Admitted in part, denied in part. It is admitted that the Defendant stated
that there would be a storage area in the attic. It is denied that the construction
wouldn't support a floor on the beams.
28. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
29. Denied. The entire construction was not built on flake board, to the
contrary the Addition was built on the existing foundation as agreed upon by the
parties.
30. Denied. After reasonable investigation, the answering party is without
knowledge or information sufficient to form a belief as to the truth of this averment.
Count I
Breach of Contract
31. The answers to paragraphs 1 through 30 above are incorporated herein
by reference.
32. Denied. Defendant completed the work in accordance with the written
and oral agreements made between the parties.
a) Admitted with clarification. As per the Plaintiffs requests and the
oral agreement of the parties, the electrical wiring, plumbing,
frame and roof were not inspected;
b) Denied. It is denied that the Defendant failed to comply with the
East Pennsboro Township Building Code;
c) Admitted with clarification. Defendant made a hole in one
support beam in the basement when he accidentally drilled a nail
5
too far down, however, the Defendant then added a support
beam to compensate for the damaged one;
d) Admitted in part, denied in part. It is admitted that Defendant
broke Plaintiffs' sledge hammer, however, Defendant replaced the
sledge hammer, It is denied that Defendant destroyed Plaintiffs'
ladder and damaged the driveway.
e) Admitted with clarification. As per the Plaintiffs' request, the
Defendant only partially attached the deck so as to prevent the
deck from damaging the house if a flood were to tear it away from
the home.
f) Denied. The wiring that ran from the basement to the outside
shed had been disconnected prior to Defendant's work on the
addition.
33. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
34. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
35. Denied. The averments in this paragraph state conclusion of law to
which no response is required.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss
Plaintiffs' Complaint with prejudice.
Count II
Negligence
36. The answers to paragraphs 1 through 30 above are incorporated herein
by reference.
37. Admitted.
6
38. Admitted in part, denied in part. Defendant admits that he prepared a
false application to East Pennsboro Township for a budding permit, however,
Defendant did so at the Plaintiffs' suggestion and request. Defendant denies that the
Addition was not built in accordance with the building codes.
39. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
40. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
41. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss
Plaintiffs' Complaint with prejudice.
Count III
Fraudulent Misrepresentation
42. The answers to paragraphs 1 through 30 above are incorporated herein
by reference.
43. Denied. Plaintiffs requested the Defendant prepare the application in
the manner in which he did so as to avoid any difficulties they may encounter in
obtaining a building permit in a flood zone.
44. Admitted in part, denied in part. It is admitted that Defendant held
himself out to the Plaintiffs as a builder and that he would construct the Addition, it is
7
denied that the Defendant built the Addition in violation of the building code of East
Pennsboro Township.
45. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
46. Denied. After reasonable investigation, the answering parry is without
knowledge or information sufficient to form a belief as to the truth of this averment.
47. Admitted in part, with clarification, denied in part. It is admitted that at
the Plaintiffs' request, Defendant prepared a false application to East Pennsboro
Township for a building permit.
48. Denied. The averments in this paragraph state conclusions of law to
which no response is required. To the extent an answer is required, it is denied that
Defendant misrepresented any fact to the Plaintiffs.
49. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
50. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
51. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss
Plaintiffs' Complaint with prejudice.
8
Count IV
Negligent Misrepresentation
52. The answers to paragraphs 1 through 30 and 43 through 47 above are
incorporated herein by reference.
53. Admitted.
54. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
55. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss
Plaintiffs' Complaint with prejudice.
Count V
Violation of Pennsylvania Unfair Trade Practices and
Consumer Protection Law
56. The answers the paragraphs 1 through 30 and 43 through 47 above are
incorporated herein by reference.
57. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
58. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
9
a) Admitted in part, denied in part. It is admitted that Defendant
prepared a false application to East Pennsboro Township for a
building permit, it is denied that Defendant represented to
Plaintiffs that he would obtain a building permit for the work to
construct the Addition, rather, as per the Plaintiffs' request,
Defendant agreed to prepare the application in the manner in
which he did.
b) Admitted in part, denied in part. It is admitted that Defendant
held himself out as a builder, it is denied that the Defendant built
the Addition in violation of the building code of East Pennsboro
Township.
59. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
a) Admitted in part, denied in part. See answer to paragraph 58(a)
above.
b) Admitted in part, denied in part. See answer to paragraph 58(b)
above.
60. Denied. The averments in this paragraph state conclusions of law to
which no response is required.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss
Plaintiffs' Complaint with Prejudice.
New Matter
61. Plaintiffs failed to mitigate their damages.
62. Plaintiffs' Complaint fails to state a cause of action upon which relief can
be granted.
63. Plaintiffs' claim is barred by the doctrine of spoliation.
10
64. Plaintiffs' claim is barred by the gist of the action doctrine.
65. Plaintiffs' claim is barred by the unclean hands doctrine.
66. Plaintiffs were contributorily negligent and comparatively negligent.
67. Plaintiffs' claim is barred by their own assumption of the risk.
GOLDBERG KATZMAN, P.C.
BY: - A a LI?4
Carly J. mer, Esquire
Attorney I.D. # 92598
PO Box 1268
Harrisburg, PA 17108-1268
717-234-4161
Attorneys for Defendant
Date: January 31, 2006
11
FROM :VILLAGE KNOLL FAX NO. :717 6572102 Jan. 27 2006 03:50PM P2
01/27,l2006 10:53 FAN 71M2 46410 UUMEHU NA108n
I, George Beamenderfer, hereby acknowledgc that f have read the foregoing
document and that t1m facts stated therein are tme and correct to the best of my
knowledge, inFumation and belief.
5. understand that any false statements herein aro made subject to penalties
of 18 Pa. CS, Section 4904, rclarmi g to unswotn falsification to authorities.
George BeAnenderfer
Date: 0/-e27-D4,
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Code, by depositing a copy of same in the United
States mad, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Joseph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
GOLDBERG KATZMAN, PC
By:
Carly J.'Vi?mer, Esquire
Date: January 31, 2006
l7
TI
79
_'.
l
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
Civil Action - Law
V.
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
No. 05 - 6316 - Civil
PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT
Plaintiffs, Gary Mitchell and Linda Mitchell, by and through their attorney, Joseph A.
Macaluso, hereby replies to the new matter of defendant, George Beamenderfer
d/b/a/t/a BHI, Beamenderfer Home Improvements, as follows:
61. Paragraph 61 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that they
have failed to mitigate their damages. Further answering, plaintiffs assert that
defendant has failed to plead any facts to support his contention.
62. Paragraph 62 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that they
have failed to state a claim upon which relief may be granted. To the contrary, plaintiff
has set forth valid causes of action in the complaint upon which relief may be granted.
Further answering, plaintiffs assert that defendant has failed to plead any facts to
support his contention.
4.
63. Paragraph 63 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that the
doctrine of spoliation bars their claims. Further answering, plaintiffs assert that
defendant has failed to plead any facts to support his contention.
64. Paragraph 64 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that the gist
of the action doctrine bars their claims. Further answering, plaintiffs assert that
defendant has failed to plead any facts to support his contention.
65. Paragraph 65 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that the
unclean hands doctrine bars their claims. Further answering, plaintiffs assert that
defendant has failed to plead any facts to support his contention.
66. Paragraph 66 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that they
were contributorily negligent or that comparative negligence bars their claims. Further
answering, plaintiffs assert that defendant has failed to plead any facts to support his
contention.
67. Paragraph 67 contains legal suppositions to which no response is required. To
the extent that a reply is deemed to be required, plaintiffs specifically deny that they
assumed any risk whatsoever. Further answering, plaintiffs assert that defendant has
failed to plead any facts to support his contention.
qtb
WHEREFORE, plaintiffs Gary Mitchell and Linda Mitchell demand judgment in their
favor and against defendant George Beamenderfer d/b/a/t/a BHI, Beamenderfer Home
Improvements, as set forth in the complaint.
Submitted,
410
Jose h A. Macaluso, Esq.
Supr me Court I.D. No. 38262
or y for Plaintiffs
P.O. ox 83
Orrstown, PA 17244
(717) 532-4832
VERIFICATION
We, Gary Mitchell and Linda Mitchell, verify that the statements made in the foregoing
reply to new matter of defendant are true and accurate to the best of their personal
knowledge, information and belief. We understand that my statements are made
subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to
authorities.
Gary Mi ell
Linda Mitchell
1
CERTIFICATE OF SERVICE
I hereby certify that on February I Ll , 2006, 1 caused to be served a true and
correct copy of the plaintiffs' reply to new matter of defendant by first class mail,
postage prepaid, addressed to the following individuals:
Carly J. Wismer, Esq.
P.O. Box 1268
Harrisburg, PA 17108-1268
I further certify that the statements made herein are true and correct, and I
understand that if any false statements were made herein, the same would be
subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn
falsification to authorities.
Dated: February1q, 2006
rl rl
C]
`fl
7-1
v;
Carly J. Wismer, Esquire
GOLDBERG KiATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108
717-234-4161
Attorney for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BLAMENDERFER
d/b/a/t/a BHI, BEAMENDERFER
HOME IMPROVEMENTS,
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
ENTRY OF APPEARANCE
Please enter the appearance of Carly J. Wismer of Goldberg Katzman, P.C. on
behalf of the Defendant George Beamenderfer d/b/a/t/a BHI, Beamenderfer
Homer Improvements.
GOLDBERG KATZMAN, P.C.
By:
Carly J. ist? er, Esquire
Attorney D #92598
PO Box 1268
Harrisburg, PA 17108-1268
717-234-4161
Attorney for Defendant
Date: February 17, 2006
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Code, by depositing a copy of same in the United
States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Joseph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
GOLDBERG KATZMAN, PC
By:
Carly J. is er, Esquire
Date: February 17, 2006
.,
<;
?;; ,
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
v.
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
PRAECIPE
To: Cumberland County Prothonotary
Civil Action - Law
No. 05 - 6316 - Civil
Please file in connection with the above-captioned case the attached original Order
and the attached original Opinion of U.S. Bankruptcy Court Mary D. France, which
have each been certified from the record on October 20, 2008, by the Clerk of the U.S.
Bankruptcy Court for the Middle District of Pennsylvania in connection with Bankruptcy
CASE NO. 1:06-bk-00610MDF, ADV. NO. 1:06-ap-00119, as to non-dischargeability of
certain claims and damages pertaining to the within case.
Submitted,
Jose h A. Macaluso
Attor y for Plaintiffs Gary Mitchell and Linda Mitchell
Supre Court I. D.# 38262
ox 83
Orrs own, PA 17244
Tel. No. (717) 532-4832
Dated: November 6, 2008
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
GEORGE Q. BEAMENDERFER
d/b/a BEAMENDERFER HOME
IMPROVEMENTS, d/b/a PUTT
HOME REMODELING, and
JACQUELINE A. BEAMENDERFER
a/k/a JACQUELINE A. PUTT,
a/k/a JACQUELINE A. FORTNEY,
d/b/a PUTT HOME REMODELING,
Debtors
GARY L. MITCHELL and
LINDA MITCHELL,
Plaintiffs
VS.
GEORGE Q. BEAMENDERFER,
d/b/a BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
*
* CHAPTER 7
* CASE NO.: 1:06-bk-00610MDF
*
* ADV. NO.: 1:06-ap-00119
*
*
*
*
* D ?
* CERTIFIED FROM THE RECORD th;s?
* ???,
* da,, of Oe? -6? , _, Q$
* Cierk, U.S. Rapec,uptcy Court
per L -
* OdpWLY Cleric
ORDER
The Court having previously determined that damages incurred by Gary L. Mitchell and
Linda Mitchell ("Plaintiffs") as a result of Debtor's willful and malicious conduct were non-
dischargeable under 11 U.S.C. § 523(a)(6) and after further hearing on damages, it is
ORDERED that Plaintiffs' claim against Debtor is an amount of $65,257.54 is
determined to be non-dischargeable.
Br the comt,
7A_?_Vvtz?IVAV
Date: September 10, 2008 mad p , Judge
This document is electronically signed and filed on the same date.
Case 1:06-ap-00119-MDF Doc 41 Filed 09/10/08 Entered 09/10/08 15:22:51 Desc
Main Document Page 1 of 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
GEORGE Q. BEAMENDERFER
d/b/a BEAMENDERFER HOME
IMPROVEMENTS, d/b/a PUTT
HOME REMODELING, and
JACQUELINE A. BEAMENDERFER
a/k/a JACQUELINE A. PUTT,
a/k/a JACQUELINE A. FORTNEY,
d/b/a PUTT HOME REMODELING,
Debtors
GARY L. MITCHELL and
LINDA MITCHELL,
Plaintiffs
VS.
GEORGE Q. BEAMENDERFER,
d/b/a BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
*
* CHAPTER 7
*
*
*
* CASE NO.: 1:06-bk-00610MDF
*
*
* ADV. NO.: 1:06-ap-00119
*
*
*
*
CERTIFIED FROM THE RECORD this)_'
dav of 20
* Clelk.S. Bankruptcy Court
* Per
* Betpuly Clerk
*
OPINION'
On March 25, 2008, this Court determined that the claim of Gary L. Mitchell and Linda
Mitchell ("Plaintiffs") was non-dischargeable pursuant to 1 I U.S.C. § 523(a)(6). I found that
Plaintiffs held a non-dischargeable claim against George Q. Beamenderfer ("Debtor")' for costs
incurred for the demolition and reconstruction of their residence located at 1045 Oyster Mill
Road, East Pennsboro Township, Pennsylvania. A hearing was held on August 29, 2008 to
determine the non-dischargeable portion of Plaintiffs' claim. For the reasons set forth below, I
'This Court has jurisdiction pursuant to 28 U.S.C. §§157 and 1334. This matter is core
pursuant to 28 U.S.C. § 157(b)(2)(A), (I) and (O). This Opinion constitutes findings of fact and
conclusions of law made pursuant to Federal Rule of Bankruptcy Procedure 7052.
'Debtor represented himself at both the trial on liability and the subsequent trial on
damages.
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find that the non-dischargeable portion of damages suffered by Plaintiffs pursuant to 11 U.S.C. §
523(a)(6) is $65,257.54.
In my earlier Opinion, I determined that Plaintiffs' claim against Debtor was
nondischargeable under § 523(a)(6) because Debtor knowingly failed to obtain appropriate
inspections of Plaintiffs' property during construction and filed a false application for a building
permit. Because of these failures, Plaintiffs could not obtain a certificate of occupancy until
significant portions of the reconstructed house were demolished to provide access for inspections
and additional work was performed to bring the dwelling into compliance with township building
codes. After discovering that they would be unable to obtain an occupancy permit without
making major alterations to their home, Plaintiffs hired Pennsylvania Remodelers ("PA
Remodelers") to perform the necessary demolition and reconstruction services. Plaintiffs,
however, did not limit the scope of the work to demolishing and reconstructing portions of the
home altered by Debtor. They significantly expanded the work at a cost more than four times the
original contract.'
Adopting the out-of-pocket approach, the Court must determine the damages proximately
caused by Debtor's willful and malicious conduct. The measure of damages that result from a
willful and malicious injury under 11 U.S.C. § 523(a)(6) is "an amount equal to the injury caused
by the debtor rather than any other sum owed by the debtor on a contractual basis." In re
LeBlanc, 346 B.R. 706, 714 (Bankr. M.D. La. 2006) (quoting In re Mondicue, 926 F.2d 452, 453
'Debtor's contract for services on the Plaintiff's home was for $95,440.00. Linda
Mitchell testified at the damages hearing that Plaintiffs paid PA Remodelers approximately
$400,000.00 for its services.
2
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(5th Cir. 199 1)). All debts that flow from the conduct that violated § 523(a)(6) are non-
dischargeable. In re Stokes, 150 B.R. 388, 393 (W.D. Tex. 1992).
In my prior Opinion, I specifically found that Plaintiffs' damages consisted of the cost of
demolishing much of the structure that had been erected by Debtor and rebuilding the home in
compliance with township codes. To substantiate this aspect of their claim for damages,
Plaintiffs offered the expert testimony of a professional engineer, David Black (`Black"). Using,
inter alia, photographs of the residence taken while Debtor was working on the premises, a list of
deficiencies in the work performed by Debtor identified by the codes enforcement officer, and
additional photographs taken after deficiencies were identified, Black described the work that
would have been required to demolish portions of the structure to allow for inspection of the
home's construction and to make the required changes to the structure. Black offered his opinion
as to the costs that would have been incurred to secure compliance with the Pennsylvania
Uniform Construction Code for the work performed by Debtor. According to Black, the cost of
demolishing portions of the structure; examining plumbing, wiring and other systems; preparing
documentation of code compliance; obtaining required permits; and performing the necessary
reconstruction was $58,047.00.
Debtor failed to rebut these estimates and simply stated that some of the deficient work
identified in the photographs was not performed by him. While admitting that Black was a well-
qualified expert in the field, he questioned the costs related to the preparation of plans and
drawings that typically are not required for residential construction.' I find that Black's testimony
'In his calculations, Black included $15,650.00 in "Design and Professional Fees." These
fees included the preparation of various mechanical, plumbing, electrical and other structural
drawings as well as site visits and coordination with township codes officials. Black conceded
that these expenses were not typical in residential construction, but testified that they were
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was credible, and I accept his opinion as to the amount of direct costs that were incurred by
Plaintiffs as a consequence of Debtor's willful and malicious actions.
Plaintiffs also sought as damages reimbursement for: (1) attorneys fees paid by Plaintiffs
to Joseph A. Macaluso, ("Macaluso"), who represented them in a suit against Debtor in the Court
of Common Pleas of Cumberland County, Pennsylvania before Debtor filed his bankruptcy
petition; and (2) moving and storage expenses incurred in connection with the demolition and
reconstruction.
Pennsylvania courts follow the American rule that damages do not include a party's
attorneys' fees "absent an express statutory authorization, a clear agreement by the parties or
some other established exception." Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d
949, 951 (1999). Neither does the Bankruptcy Code authorize an award of attorneys' fees to the
prevailing creditor in an action objecting to a debtor's discharge. In re Itule, 114 B.R. 206, 213
(B.A.P. 9th Cir. 1990). But see In re Bertola, 317 B.R. 95, 99 (B.A.P. 9th Cir. 2004) (Creditor
entitled to recover attorneys' fees and costs in pursuing § 523(a)(2)(A) and § 523(a)(6) actions
when creditor could recover fees under state law.) No evidence was presented that Plaintiffs
would be entitled to recover attorneys' fees under Pennsylvania law, nor did Plaintiffs allege that
they were entitled to recover fees under the terms of their contract with Debtor. Therefore,
Plaintiffs' request for reimbursement of fees paid to Attorney Macaluso will be denied.
Plaintiffs also seek reimbursement for moving and storage charges totaling $14,674.32
and for apartment rental payments of $8,400.00 during the six-month period that they were
unable to occupy their residence. Although these are appropriate damages related to the
necessary in the within case because of the need to resolve numerous possible deficiencies
identified by township officials.
4
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demolition and reconstruction of the work performed by Debtor, Plaintiffs failed to establish that
all of these expenses were attributable to the injury inflicted by Debtor.
Black testified that the Plaintiffs would have been required to vacate the home and either
cover or remove furnishing while convective construction was performed. Accordingly, had
Plaintiffs provided clear evidence that their requested expenses arose because of Debtor's
wrongful conduct, all of the expenses would have been allowable. However, the Court was
unable to decipher from the evidence presented how some of the costs were attributable to
Debtor's misconduct.
Because Plaintiffs opted to significantly expand the home improvement project beyond
the scope of work performed by Debtor, it was incumbent upon them to distinguish the expenses
related to correcting Debtor's work from expenses stemming from the unrelated aspects of the
expanded renovations. Just as Debtor is not responsible for the cost of approximately
$300,000.00 in additional improvements that Plaintiffs elected to make when they retained PA
Remodelers, he also is not responsible for other out-of-pocket expenses related to the expanded
project.
Plaintiffs requested reimbursement for expenses incurred for a self-storage unit at Capital
Self Storage for the period November 2004 through July 2007. Linda Mitchell ("Mitchell")
testified that Plaintiffs vacated their residence in March 20055 because they were concerned
'Although Mitchell testified that she and her husband moved from the residence in March
2005, the testimony is conflicting as to whether they were absent from their home from 2005
until the reconstruction was completed. She testified that Plaintiffs moved out in March 2005,
but she also stated that "we were moving in and out to try to get things fixed. Sometimes we
moved downstairs because we could still go up and use the plumbing upstairs while people
worked. But this was all in an attempt to patch it rather than to tear it all down, but finally I came
to recognize that we did have to tear it down, and then we moved out for the demolition." (N.T.
103-04, October 4, 2007). Plaintiffs' only requested reimbursement of apartment rental payments
for a six-month period.
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about the safety of the premises. However, according to PA Remodelers' construction foreman,
his firm did not commence work at the Plaintiff's residence until approximately January 2007.
Plaintiffs did not attempt to explain the reasons for the delay in beginning reconstruction, but the
Court cannot assume that the delay was attributable to Debtor's wrongful conduct.
In addition, because the renovations to Plaintiffs' residence by PA Remodelers was more
extensive than the work performed by Debtor, it is reasonable to assume that the period during
which Plaintiffs would have been dislocated if the structure simply had been demolished and
then rebuilt would be shorter than the six months that were required for the expanded project.
The total expenses for storage at Capital Self Storage during the period January 1, 2007
through July 31, 2007 are $3,458.04. Because I conclude that if PA Remodelers had merely
corrected Debtor's work it would have taken less time to complete than the work that actually
was performed, the Court will limit the non-dischargeable portion of Plaintiffs' storage expenses
to one half of the amount paid during the reconstruction, or $1,729.02.
Plaintiffs also sought reimbursement for moving and storage expenses paid to Harrisburg
Storage Co. and George W. Weaver & Sons.' In the two exhibits presented at trial, Plaintiffs
requested reimbursement for $5,299.21 in moving and storage costs. However, the Court notes
that of this sum, two entries were duplicated in a total amount of $210.00.' Mitchell testified that
some of the charges were for moving and some were for storage, but she made no effort to
distinguish between these charges. As with the expenses for the self-storage units, most of the
charges listed are not for periods when demolition and reconstruction was taking place at the
'Mitchell testified that Harrisburg Storage Co. and George W. Weaver & Sons are related
companies.
'Check numbers 6623 and 6648 were listed twice on Plaintiff's Exhibit 3b.
6
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residence! Therefore, only the charges for the period between January and September 2007 in an
amount of $2,563.04, divided by half to account for the expanded construction, in an amount of
$1,281.52 will be determined to be nondischargeable moving and storage costs.
Finally, Plaintiffs testified that they moved into an apartment for six months during
demolition and construction. Again, because the construction project undertaken by PA
Remodelers was more extensive than required to correct the injury inflicted by Debtor, the costs
of alternate housing will be allowed for a three-month period in a total amount of $4,200.00.
In conclusion, damages as a result of the willful and malicious injury inflicted upon
Plaintiffs are determined by the Court to be $65,257.54 consisting of $58,047.00 for demolition
and reconstruction costs; $3010.54 for storage and moving costs; and $4,200.00 for rental
expenses. Accordingly, the Court determines that Plaintiffs' claim against Debtor to the extent of
$65,257.54 is non-dischargeable.
An order consistent with this Opinion will be entered.
By the C'omI,
7?t
BAa , Jodse
rMs document is electronically signed and filed on the same date.
Date: September 10, 2008
'It is certainly possible that some of the checks paid to Harrisburg Storage Co. and to
George W. Weaver & Sons, while paid outside the nine month period that the foreman for PA
Remodelers stated that his firm was working at Plaintiffs' home, were for moving services so
that demolition and reconstruction could be commenced. However, Plaintiffs have failed to meet
their burden to establish the amount of the damages with reasonable certainty. The Court cannot
base a damages award on speculation or conjecture.
7
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IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY
Gary Mitchell and
Linda Mitchell,
Plaintiffs
Civil Action - Law
V.
George Beamenderfer
d/b/a/t/a BHI, Beamenderfer
Home Improvements,
Defendant
No. 05 - 6316 - Civil
PLAINTIFFS' GARY MITCHELL AND LINDA MITCHELL'S
MOTION FOR SUMMARY JUDGMENT
NOW COME movants, Gary Mitchell and Linda Mitchell, the plaintiffs in the above-
captioned action, by and through their attorney, Joseph A. Macaluso, and respectfully
request that this Court grant summary judgment in their favor and against defendant
George Beamenderfer d/b/a/t/a BHI, Beamenderfer Home Improvements, and in
support thereof aver as follows:
1. Movants are sui juris adults who reside at 1045 Oyster Mill Road, Camp Hill,
Pennsylvania 17011.
2. The defendant, George Beamenderfer is a sui juris adult engaged in the
construction business, maintaining offices at 603 Mountain Street, Summerdale PA
17093.
3. This case involves a contract for defendant to construct an addition (hereinafter
referred to as the "Addition") onto plaintiffs' above mentioned residence in accordance
with a written bid dated September 15, 2004, a copy whereof is attached to the
complaint as Exhibit A.
4. The contract price for the Addition was $83,446.00, including all labor and
materials.
5. On or about October 6, 2004, defendant prepared, signed, and filed an
application for a building permit from East Pennsboro Township, however,
unbeknownst to plaintiffs at the time, the application falsely stated that the work to be
performed was "Install new roof"and that the construction cost was "$4,500.00". (A
copy of the application is attached to the complaint as Exhibit C).
6. Based on the defendant's false application, East Pennsboro Township issued a
building permit for "roof replacement", a copy whereof is attached to the complaint as
Exhibit B.
7. Defendant constructed the Addition from October 4, 2004 to December 30, 2004,
and defendant completed th work except for: installation of a garden window; clean-up
of debris; repair of damage to the foundation walls and pre-existing support beams;
some electrical wiring; and a variety of finishing details.
8. In March 2005, plaintiffs applied to East Pennsboro Township for a permit to
finish the work left incomplete by defendant, and plaintiffs hired another contractor for
this purpose.
9. As the work was begun to finish the work left incomplete by defendant, plaintiffs
learned that there were many defects in the Addition, including no hard wall in the
frame, no plywood for the entire length of the south side of the Addition where the
garden window was to be installed, siding on the south side of the Addition came away
from the Addition without the use of tools because defendant had nailed the siding in
such a way as not to have the nails placed into the studs, there was no sheathing on
the exterior of the Addition between the studs and the siding, there was insufficient
insulation, and the electrical box had no approval.
10. On or about March 15, 2005, plaintiffs visited the offices of East Pennsboro
Township, at which time plaintiffs first examined the building permit application filed by
defendant and discovered that it was false.
11. On or about March 21, 2005, an electrical inspector advised plaintiffs that the
panel box was not wired properly, that the wrong gauge wire was used, that the walls
would have to be taken down to expose all the wiring for inspection, and before any
corrective work could be performed, a certified building code inspector was required to
inspect the wiring in the Addition and make a report to determine what wiring needed to
be done to bring the electrical system into compliance with the Township Building
Code.
12. On or about March 22, 2005, Jeff Shultz, East Pennsboro Township Building
Code Inspector, inspected the Addition.
13. Shultz advised plaintiffs that the Addition frame would have to be taken down
for inspection purposes and that they had 60 days to rebuild to comply with the
Township Building Code or else move out of their residence.
14. On or about April 13, 2005, the Township sent plaintiffs a letter listing 14 issues
that needed to be addressed to bring the building into compliance with the Township
Building Code, a copy whereof is attached to the complaint as Exhibit F.
15. On May 9, 2005, plaintiffs learned that defendant's entire construction was built
on flake board and that this was inappropriate for, and was subject to deterioration in
the flood zone where plaintiffs' residence was located.
16. On December 9, 2005, plaintiffs filed a complaint against defendant in this
action, containing counts for breach of contract, negligence, fraudulent
misrepresentation, negligent misrepresentation, and violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, 73 P. S. Section 201 et seq.
17. An answer and new matter dated January 31, 2006, was filed with the Court on
behalf of defendant.
18. A reply to new mater dated February 14, 2006, was filed with the Court on
behalf of plaintiffs.
19. On April 7, 2006, defendant filed a petition for bankruptcy in the Bankruptcy
Court for the Middle District of Pennsylvania, Chapter 7, designated CASE NO. 1:06-
bk-00610MDF, which automatically stayed the within case.
20. On September 20, 2006, plaintiffs filed in the Bankruptcy Court for the Middle
District of Pennsylvania, a complaint objecting to the discharge of their claims against
defendant, designated ADV. NO. 1:06-ap-00119.
21. On October 4, 2007, a hearing was conducted in the Bankruptcy Case on
plaintiffs' complaint objecting to the discharge of their claims against defendant.
22. By Order dated March 25, 2008, U.S. Bankruptcy Court Judge Mary D. France
determined that the claims of plaintiffs against defendant were non-dischargeable to
the extent of the costs of demolition and reconstruction of the Addition in order to
inspect for compliance with the Township Code, and a hearing was set to receive
evidence of those costs. A copy of the Order is attached to this motion as Exhibit A.
23. On August 28, 2008, a hearing was conducted in the Bankruptcy Case to
determine the amount of plaintiffs' non-dischargeable claim.
24. By Order dated September 10, 2008, U.S. Bankruptcy Court Judge Mary D.
France determined that the claims of plaintiffs against defendant were non-
dischargeable in the amount of $65,257.54, a copy whereof has been duly certified and
filed with this Court on November 6, 2008.
25. At the hearing held in the Bankruptcy Case on October 4y 2007, defendant
made admissions under oath relating to the within case, which demonstrate that there
exists no genuine issue of fact in the within case, as described below.
26. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 168, lines 11-18, attached hereto as Exhibit B, defendant admitted his knowiedge
of the improper building permit:
"Q. And the whole time you were operating you knew that you were not
operating under a proper permit, is that right?
"A: Me and the Mitchells both knew that, yes.
"Q: I'm just asking but. You're alleging they knew as well, but I'm asking
what you knew. You did know that?
"A. Yes, we did."
27. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 172, lines 3-5, attached hereto as Exhibit C), defendant admitted that he
performed the work on the Addition without a permit:
"Q. But you know you did this work without a permit?
"A: That's correct. Yes, we did."
28. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 168, lines 19-23, attached hereto as Exhibit B), defendant admitted that he knew
an electrical inspection was required:
"Q. Mr. Beamenderfer, you were also aware, weren't you, that this project
would require an electrical inspection, would you not?
"A. Yes, under normal circumstances projects like that do."
29. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 168, lines 24-25, and Page 169, lines 1-2 attached hereto as Exhibit D),
defendant admitted that he never ordered an electrical inspection:
"Q. You never ordered an electrical inspection, did you?
"A. Not on this particular job, no, I did not. That is unusual of my
character."
30. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 169, lines 3-5, attached hereto as Exhibit D), defendant admitted that he never
had the Township inspect his work on the Addition:
"Q. And you never had the Township come in and inspect either, did you?
"A. No."
31. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 172, lines 21-24, attached hereto as Exhibit C), defendant admitted that he never
had the Township inspect his work on the Addition:
"Q. And you never had the Township come in and inspect either, did you?
"A. No."
32. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 172, lines 6-10, attached hereto as Exhibit C), defendant admitted that he knew
the Township could not inspect his work on the Addition after the walls were up:
"Q. And you know that they couldn't inspect the place with all the walls,
the drywall being all the way back up, didn't you?
"A. That's correct. We knew that, me and the Mitchells."
33. At the hearing held in the Bankruptcy Case on October 4, 2007 (Transcript
Page 171, lines 16-19, attached hereto as Exhibit E), defendant admitted that if the
Township came to see the Addition, they would have realized there was no inspection
and the permit was not correct:
"Q. If the Township came they would have realized that the inspections
had never been done and that the permit was not correct, wouldn't
they have?
"A. Oh yeah. Sure."
34. In her Opinion dated September 10, 2008, U.S. Bankruptcy Court Judge Mary
D. France referred extensively to the testimony of David Black, plaintiffs' professional
engineer, given at the hearing on August 28, 2008, to prove the costs of demolition and
reconstruction of the Addition in order to comply with the Township Code.
35. Based on the expert testimony of Black, Judge France determined the cost of
demolition and reconstruction of the Addition to be $65,257.54 (see page 7 of the
Opinion).
36. In Count 1, Paragraph 32 of the complaint in the within case, pertaining to
breach of contract, plaintiffs allege, inter alia, that "defendant failed to perform or
complete the agreed upon work in accordance with the Building Code for East
Pennsboro Township", that the "electrical wiring, plumbing, frame, and roof were not
inspected", that "the work of defendant on the Addition did not comply with the East
Pennsboro Township Building Code".
37. By reason of the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, there exists no genuine issue of fact relative to Count 1.
38. In Count 11, Paragraph 38 of the complaint in the within case, pertaining to
negligence, plaintifs allege, inter aIia, that "Defendant breached his duty by preparing
a false application to East Pennsboro Township for a building permit", and "by failing to
construct the Addition in accordance with the building code for East Pennsboro
Township".
39. By reason of the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, there exists no genuine issue of fact relative to Count II.
40. In Count 111, Paragraph 43 of the complaint in the within case, pertaining to
fraudulent misrepresentation, plaintiffs allege, inter alia, that "defendant by (sic)
Prepared a false application to East Pennsboro Township for a building permit", and in
Count III, Paragraph 47, plaintiffs allege that "defendant prepared a false application to
East Pennsboro Township for a building permit" and "defendant constructed the
Addition in violation of the building code for East Pennsboro Township".
41. By reason of the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, there exists no genuine issue of fact relative to Count Ill.
42. In Count IV, Paragraph 54 of the complaint in the within case, pertaining to
negligent misrepresentation, plaintiffs incorporate by reference Paragraph 43 of the
complaint and they also allege in Paragraph 55 that defendant is liable to plaintiffs for
the "costs and expenses for another contractor to complete and/or perform the work on
the Addition to be in compliance with the building code for East Pennsboro Township"
43. By reason of the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, there exists no genuine issue of fact relative to Count IV.
44. In Count V, Paragraph 59 of the complaint in the within case, pertaining to
violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73
P. S. Secfion 201 et Seq., plaintiffs allege that defendant engaged in "fraudulent
conduct which creates a likelihood of confusion or of misunderstanding within the
meaning of 73 P. S. Section 201-2 (4)(xxi)" because defendant "prepared a false
application to East Pennsboro Township for a building permit" and "defendant built the
Addition in violation of said Code".
45. By reason of the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, there exists no genuine issue of fact relative to Count V.
46. As a matter of law, U.S. Bankruptcy Court Judge France has determined that the
claims of plaintiffs against defendant were non-dischargeable to the extent of the costs
of demolition and reconstruction of the Addition in order to comply with the Township
Code (see the Order dated March 25, 2008), and that the amount of non-dischargeable
claim for costs of demolition and reconstruction of the Addition in order to comply with
the Township Code is $65,257.54.
47. Rule 1035.2 of the Pennsylvania Rules of Civil Procedure states, inter alia:
" After the relevant pleadings are dosed, but within such time as not to
unreasonably delay trial, any party may move for summary judgment in whole or
in part as a matter of law
(1) whenever there is no genuine issue of material fact as to a necessary
element of the cause of action..."
48. Based on the admissions of defendant as set forth in Paragraphs 26 through
33, inclusive, hereinabove, and the conclusions of law determined by U.S. Bankruptcy
Court Judge France as set forth in Paragraph 46 above, respecting the amount and
non-dischargeability of plaintiffs' claims for damages, plaintiffs maintain that they are
entitled to summary judgment.
49. In the within motion, plaintiffs have relied on the admissions of the defendant,
whose interests are adverse to plaintiffs, and so summary judgment is not precluded by
reason of the rule in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A.2d 523
(1932). See: Kniez v. Benton Borough, 642 A.2d 551 (Pa. Cmwlth. 1994), and Bows v.
Allied Signal, Inc., 806 A.2d 435 (Pa. Super. 2002).
50. For the foregoing reasons, p1writiffis urge that they am entitled to summary
judgment in accordance with Pa.R.C.P. Rule 1035.2.
WHEREFORE, plaintiffs respectfully requests that this Court grant summary
judgment in their favor and against the defendant pursuant to Pa.R.C.P. Rule 1035.2 in
the amount of $65,257.54.
Dated: a-7 -0 L Respectfully Submitted,
h A. Macaiuso, Esq.
S me Court I.D. No. 38262
Attorney for Plaintiffs Gary Mitchell and
Linda Mitchell
P.O. Box 83
Orrstown, PA 17244
VERIFICATION
We, Gary Mitchell and Linda Mitchell, verify that the statements made in the foregoing
motion for summary judgment are true and accurate to the best of their personal
knowledge, information and belief. We understand that my statements are made
subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to
authorities.
r
Gary M'
Linda Mitchell
Dated: F, eZ00 9
v
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
GEORGE Q. BEAMENDERFER,
d/b/a BEAMENDERFER HOME
IMPROVEMENTS, d/b/a PUTT
HOME REMODELING, and
JACQUELINE A. BEAMENDERFER,
a/k/a JACQUELINE A. PUTT,
aWa JACQUELINE A. FORTNEY,
d/b/a PUTT HOME REMODELING,
Debtors
Chapter 7
GARY L. MITCHELL and
LINDA MITCHELL,
Plaintiffs
V.
GEORGE Q. BEAMENDERFER,
d(b/a BEAMENDERFER HOME
IMPROVEMENTS,
. Defendant
Case No.: 1-06-bk-00610MDF
Adv. No.: 1-06-ap-00119
ORDER
IT IS HEREBY ORDERED that the Objection to the discharge of the claim of Gary L.
and Linda Mitchell ("Plaintiffs") is SUSTAINED. Plaintiffs' claim is determined to be non-
dischargeable to the extent of the costs they incurred for the demolition and reconstruction of
their home as described in the Opinion that accompanies this Order.
IT IS FURTHER ORDERED that a hearing shall be held on May 8, 2008 at which time
Plaintiffs shall produce evidence of the costs incurred so that the Court may determine the non-
dischargeable portion of Plaintiffs' claim. The hearing shall be held in Bankruptcy Courtroom
"A?
One, 228 Walnut Street, Harrisburg, Pennsylvania, commencing at 9:30 a.m. It is further
Ordered that Count Three of the Complaint in this matter is hereby DISMISSED.
By the Court,
Date: March 25, 2008
This. document is electronically signed and filed on the same date.
•
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RE; .Chapter 13
GEORGE Q. BEAMENDERFER, .
Debtor..Case No. 1-06-00610
GARY L. MITCHELL and
LINDA MITCHELL,
Plaintiffs,.
VS. .Adversary No. 1-06-00119
GEORGE Q. BEAMENDERFER,
Defendant..
(TRANSCRIPT OF PROCEEDINGS.)
Before: HONORABLE MARY D. FRANCE
Date: October 4, 2007; 10:05 a.m.
Place: Federal Building
Harrisburg, Pennsylvania
By: Cindy L. Reilly, RDR
APPEARANCES:
MARKIAN R. SLOBODIAN, ESQ.
For - Plaintiffs
GEORGE Q. BEAMENDERFER, Pro Se
For - Defendant
0
1o %I
FILIUS 6 MCLUCAS REPORTING SERVICE, INC. -
Harrisburg 7t7-236-0623 York 717-84s-6418 PA I-800-233-9327
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bearing, finished basements, additions, replacement
windows, siding, roofing and all other phases of
construction, excluding footer work and backhoe work.
Q. You indicated that in all other.jobs except this
one you did apply for the correct permit; is that
right?
A. That's correct.
Q. You knew that a permit was required in this.job,
did you not?
A. Correct.
Q. And the whole time you were operating you knew
that you were not operating under a proper permit; is
that right?
A. Me and the Mitchells both knew that, yes.
Q. I'm just asking but. You're alleging they knew
as well, but I'm asking what you knew. You did know
that?
A. Yes, we did.
Q. Mr. Beamenderfer, you were also aware, weren't
you, that this project would require an{,lectrical
inspection, would you not?
A. Yes, under normal circumstances projects like-
that do.
Q. You never ordered an electrical inspection, did
you?
lie %_%
168 1
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intentional harm to go back to repair to fix in the
first time, no.
i
Q. But you know you did this work without a
permit?
A. That's correct. Yes, we did.
Q. And you know that they couldn't inspect the
place with all the walls, the drywall being all the way
back up, didn't you?
A. That's correct. We knew that, me and the
Mitchells.
Q. Let's go to Plaintiffs' Exhibit No. 1. Let me
just make sure that I understand your testimony
correctly. The bottom of Page 1 I understood you to
say that that should have been a 2-by-10 or 2-by-12
header there and that you didn't do the correct thing?
A. Looking back on it now, that's correct. I did
not do that. Through mobile, prefab homes, that would
be correct, but through a stick-built home that is
incorrect, so looking back now I do realize it was
incorrect.
Q. On the bottom left of Page 2 do I understand
correctly you did cut the trusses?
A. I cut the trusses due that they were 16 on
center and not 24. I didn't have a choice.
Q. But it was not permitted, was it?
Ca V
172 I
Filius & McLucas Reporting Service, Inc.
Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327
1 bearing, finished basements, additions, replacement
2 windows, siding, roofing and all other phases of
3 construction, excluding footer work and backhoe work.
4 Q. You indicated that in all other jobs except this
5 one you did apply for the correct permit; is that
6 right?
7 A. That's correct.
8 Q. You knew that a permit was required in this.job,
9 did you not?
10 A. Correct.
11 Q. And the whole time you were operating you knew
12 that you were not operating under a proper permit; is
13 that right?
14 A. Me and the Mitchells both knew that
yes.
15 Q. I'm just asking but. You're alleging they knew
16 as well, but I'm asking what you knew. You did know
17 that?
18 A. Yes, we did.
19 Q. Mr. Beamenderfer, you were also aware, weren't
20 you, that this project would require an, e.ctrical
21 inspection, would you not?
22 A. Yes, under normal circumstances projects like-
23 that do.
24 Q. You never ordered an electrical inspection, did
25 you?
168
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A. Not on this particular job, no, I did not. T_ 169
is unusual of my character.
Q. And you never had the Township come in and
inspect either, did you?
A. No.
Q. As of the time that you had finished the job and
collected the money that you received there had never
.been a correct permit and there had never been a
required inspection; is that right?
A. That is correct.
Q. Now, as I understand, you received one of the
letters but not the other, do I understand? Was it
Plaintiffs' 9 that you did receive? That's the letter
of April 8th.
A. Plaintiff 9? No, I never received.a letter like
that. That's the last one. No, I didn't.
Q. That one you did not get?
A. No.
Q. This is Plaintiffs' 8 then. Is this this one,
April 20th?
A. I'm not sure which one, but there is also
another one when she said I was'in California, which I
wasn't, but it might have been that letter. Most of
our things were done through phone conversation.
Q. Would it have been somewhere around April of
hilus & McLucas Reporting Service, Inc.
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that the Mitchells were having these issues with the
Township, did you not?
A. I heard through the grapevine a little bit
different story than that.
Q. What story did you hear?
A. Well, I heard that the Mitchells had moved in.
They had Troy Street take out a 3-foot by 4-foot window
and wanted to put in a 5-foot by 4-foot window.
Q. I'm just talking about with regard to the
Township.
A. And that's when they put up the plywood and the
Township came or Linda had contacted the Township,
either way I'm not really sure, because it was all
through the grapevine, so I don't really have firsthand
information to answer your question honestly.
Q. If the Township came they would have realized
that the inspections had never been done and that the
permit was not correct, wouldn't they have?
A. Oh, yeah. Sure.
Q. But you didn't go back and make things right?
A. And once again, the Township had never contacted
me as well.
Q. Right. But without them asking you to do so,
you never did it?
A. 1, di:dn I t feel that I did -anything .that. was;
171
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Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327
CERTIFICATE OF SERVICE
I hereby certify that on the 27th of February, 2009, 1 caused to be served a true and
correct copy of the plaintiffs' motion for summary judgment, by first class mail postage
prepaid, upon the following individual:
Carly J. Wismer, Esq.
P.O. Box 1268
Harrisburg, PA 17108-1268
I further certify that the statements made herein are true and correct, and I
understand that if any false statements were made herein, the same would be
subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn
falsification to authorities.
Dated: February 27, 2009
Joseph A. Macaluso
- 77 -?.'3
PRAECIP9 FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
Gary Mitchell and Linda Mitchell,
Plaintiffs
VS.
George Beamenderfer, d/b/a/t/a BHI,
Beamenderfer Home Improvements,
Defendant
No. 05 6 316 Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Plaintiffs' motion for summary judgment
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Joseph A. Macaluso. P.O. Box 83, Orrstown, PA 17244
(Name and Address)
(b) for defendants:
Carly J. Wismer, Escq;, P.O. Box 1268,
(Name and Address)
Harrisburg, PA 17108-1268
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
April 29, 2009
Signat re
eph Macaluso
rant ur name
Plaintiffs
Attorney for
Date: March 4, 2009
INSTRUCTIONS:
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument Is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.,
w -.<
J. Jay Cooper, Esquire
I.D. 31720
GOLDBERG KATZMAN, P.C.
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Counsel for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
MOTION AND RULE TO SHOW CAUSE WHY COUNSEL
SHOULD NOT BE PERMITTED TO WITHDRAW APPEARANCE
AND TERMINATE REPRESENTATION
1. Petitioner is GOLDBERG KATZMAN, P.C., by J. JAY COOPER, ESQUIRE,
counsel of record for George Beamenderfer, d/b/a/t/a BHI, Beamenderfer Home Improvements
(hereinafter referred to as "Respondent"), Defendant in the above-captioned action, and who file
this Motion.
2. Respondent is George Beamenderfer, d/b/a/t/a BHI, Beamenderfer Home
Improvements, the Defendant in the above-referenced case, whose mailing address is Po Box
132, Summerdale, Pa 17093.
3. Movant entered its appearance for Respondent in this case on February 17, 2006,
by Carly J. Wismer, Esq., who is no longer associated with Goldberg Katzman, P.C.
4. Based on Respondent's advising Respondent that he intended to file Bankruptcy,
which he in fact later did, Movant, in April 2006, agreed with Respondent to close its file on the
matter, agreed that Movant would not to do anything further on the file, and Movant returned the
balance of the retainer that Respondent had paid to Movant.
5. On or about March 6, 2009, Movant was served with a Motion for Summary
Judgment by the Plaintiffs, which indicates that based on Orders obtained from the Bankruptcy
Court, it was now proper to proceed against Respondent on the claim filed in this action. Movant
had not heard anything about the matter and has not had any contact with Respondent or
Plaintiffs for nearly three years.
6. Movant immediately sent copies of the Motion papers to Respondent and asked
him to review it and discuss the matter with Movant.
7. Based on discussions between J. Jay Cooper, Esq., and Respondent, Movant is
advised that Respondent does not have the funds or financial ability to pay Movant to respond to
the Motion for Summary Judgment or to otherwise to be involved on Respondent's behalf in the
pending litigation.
8. Respondent understands that based on that conversation, Movant would be filing
the instant Motion to Withdraw and Respondent voiced no objection to the same.
9. Withdrawal of Movant's appearance in this matter on behalf of Respondent can
be accomplished without any material adverse affect on his interests, especially in view of the
agreement reached in April 2006, that Movant was going to close its file on the matter.
10. At the present time, the pleading are complete, and no hearings are scheduled,
although there is a pending motion for Summary Judgment filed by the Plaintiffs on which
argument has been listed for April 30, 2009.
11. Movant has advised Respondent of the need to respond to the Motion for
Summary Judgment within thirty (30 ) days of the service of same and to appear at the scheduled
argument on April 29, 2009, and of the consequences of not doing so.
12. Respondent has been informed in writing of Movants' inability to provide further
legal services on his behalf, and of its intention to file the instant Motion.
13. Movant has advised counsel for the Plaintiffs of its intention to file this Motion
and counsel has not responded as of the filing hereof.
WHEREFORE, Movant respectfully requests that this Honorable Court grant it leave to
withdraw its appearance on behalf of George Beamenderfer, Defendant in the above-captioned
action, and to terminate its representation of George Beamenderfer.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
J. JAY CDOPEIU ESQUIRE
Supreme Court ID #31720
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Date: March 24, 2009
VERIFICATION
I verify that the statements contained in the foregoing MOTION AND RULE TO SHOW
CAUSE WHY COUNSEL SHOULD NOT BE PERMITTED TO WITHDRAW
APPEARANCE AND TERMINATE REPRESENTATION are true and correct to the best of my
knowledge, information and belief. I understand that false statements contained herein are made
subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
GOLDBERG KATZMAN, P.C.
Date: VNQ kk-k
J. JA P , Esquire
CERTIFICATE OF SERVICE
On this 24th day of March, 2009, I certify that a copy of the foregoing MOTION AND
RULE TO SHOW CAUSE WHY COUNSEL SHOULD NOT BE PERMITTED TO
WITHDRAW APPEARANCE AND TERMINATE REPRESENTATION was served upon the
following by placing the same in the United States mail, first class, postage prepaid, addressed as
follows:
Joseph A. MaCaluso, Esquire
PO Box 83
Orrstown, Pa. 17244
Attorney for Plaintiffs
George Beamenderfer
PO Box 132
603 Mountain Street
Summerdale, Pa. 17093
GOLDBERG KATZMAN, P.C.
Q\QPI-IX O??
J. Jay Coope , sq it
Supreme Court ID #31720
172399.1
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J. Jay Cooper, Esquire
GOLDBERG KATZMAN, P.C.
320 Market Street, Strawberry Square, P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Attorneys for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
AN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
RULE
AND NOW, this 2 ? , day of t^$^-OA , 2009, upon consideration of the within
Petition, a Rule is hereby issued on the Defendant George Beamenderfer, d/b/a/t/a BHI,
Beamenderfer Home Improvements, to show cause, if any he has, why the relief sought in said
Motion should not be granted.
RULE RETURNABLE Z d days from service thereof.
e-l'lJay Cooper,Esq., Goldberg Katzman, P.C., PO Box 1268, Harrisburg, PA 17108-1268.
V-01je-orge Beamenderfer, PO Box 132, 603 Mountain Street, Summerdale, PA 17093
,Aoseph A. Macaluso, Esq., PO Box 83, Orrstown, PA 17244 [
BY THE COURT
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J. Jay Cooper, Esquire
I.D. 31720
GOLDBERG KATZMAN, P.C.
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Attorneys! for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
AN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
PETITION TO MAKE RULE ABSOLUTE
AND NOW, come the Petitioners, Goldberg Katzman, P.C., and J. Jay Cooper, Esq.,
who file this Petition to Make Rule Absolute and in support thereof state the following:
1. Petitioners are GOLDBERG KATZMAN, P.C., by J. Jay Cooper, Esq., counsel of
record for George Beamenderfer d/b/a/t/a BHI, Beamenderfer Home Improvements (hereinafter
referred to as "Respondent"), Defendant in the above captioned action.
2. Respondent is George Beamenderfer, d/b/a/t/a BHI, Beamenderfer Home
Improvements, whose mailing address is PO Box 132, Summerdale, Pa. 17093.
3. On March 26, 2009, a Rule was issued on Respondent, George Beamenderfer, to
show cause why Petitioners' Motion to Withdraw Appearance and Terminate Representation of
the Respondent-Defendant should not be granted. Copies of said Petition and said Rule are
attached hereto, made a part hereof and marked Exhibit A.
4. The Rule was served upon Respondent, and upon Plaintiffs' counsel, Joseph
A. Macaluso, Esquire, by regular U.S. mail by the Prothonotary on March 26, 2009.
5. The Rule was made returnable twenty (20) days from the date of service, and
more than twenty (20) days have passed since service of the Rule and neither Respondent-
Defendant nor Plaintiffs' counsel have filed any response to the Rule.
WHEREFORE, Petitioners respectfully request that this Honorable Court make the
March 26, 2009, Rule absolute and enter an Order allowing the withdrawal of Petitioners'
appearance for the Respondent-Defendant in the above-captioned matter.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
J. JAVCbOPM, ESQUIRE
Supreme Court ID #31720
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Date: April 16, 2009
VERIFICATION
I verify that the statements contained in the foregoing PETITION TO MAKE RULE
ABSOLUTE are true and correct to the best of my knowledge, information and belief. I
understand that false statements contained herein are made subject to the penalties of 18 Pa.C.S.
Section 4904 relating to unsworn falsification to authorities.
GOLDBERG KATZMAN, P.C.
Date: LA-? ,=)Q Q9
J. JA R, squire
J. Jay Cooper, Esquire
GOLDBERG KATZMAN, P.C.
320 Market Street, Strawberry Square, P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Allorneys for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
AN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
RULE
AND NOW, this Ulj? day of , 2009, upon consideration of the within
Petition, a Rule is hereby issued on the Defendant George Beamenderfer, d/b/a/t/a BHI,
Beamenderfer Home Improvements, to show cause, if any he has, why the relief sought in said
Motion should not be granted.
RULE RETURNABLE 26 days from service thereof.
BY THE COURT
S
J.
J. Jay Cooper,Esq., Goldberg Katzman, P.C. , PO Box 1268, Harrisburg, PA 17108-1268.
George Beamenderfer, PO Box 132, 603 Mountain Street, Summerdale, PA 17093
Joseph A. Macaluso, Esq., PO Box 83, Orrstown, PA 17244
J. Jay Cooper, Esquire
I.D. 31720
GOLDBERG KATZMAN, P.C.
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Counsel for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
?y
N
AN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
.-..1
mss- T
'r
--t
M
AND TERMINATE REPRESENTATION
1. Petitioner is GOLDBERG KATZMAN, P.C., by J. JAY COOPER, ESQUIRE,
counsel of record for George Beamenderfer, d/b/a/t/a BHI, Beamenderfer Home Improvements
(hereinafter referred to as "Respondent"), Defendant in the above-captioned action, and who file
this Motion.
2. Respondent is George Beamenderfer, d/b/a/t/a BHI, Beamenderfer Home
Improvements, the Defendant in the above-referenced case, whose mailing address is Po Box
132, Summerdale, Pa 17093.
3. Movant entered its appearance for Respondent in this case on February 17, 2006,
by Carly J. Wismer, Esq., who is no longer associated with Goldberg Katzman, P.C.
4. Based on Respondent's advising Respondent that he intended to file Bankruptcy,
which he in fact later did, Movant, in April 2006, agreed with Respondent to close its file on the
matter, agreed that Movant would not to do anything further on the file, and Movant returned the
balance of the retainer that Respondent had paid to Movant.
5. On or about March 6, 2009, Movant was served with a Motion for Summary
Judgment by the Plaintiffs, which indicates that based on Orders obtained from the Bankruptcy
Court, it was now proper to proceed against Respondent on the claim filed in this action. Movant
had not heard anything about the matter and has not had any contact with Respondent or
Plaintiffs for nearly three years.
6. Movant immediately sent copies of the Motion papers to Respondent and asked
him to review it and discuss the matter with Movant.
7. Based on discussions between J. Jay Cooper, Esq., and Respondent, Movant is
advised that Respondent does not have the funds or financial ability to pay Movant to respond to
the Motion for Summary Judgment or to otherwise to be involved on Respondent's behalf in the
pending litigation.
8. Respondent understands that based on that conversation, Movant would be filing
the instant Motion to Withdraw and Respondent voiced no objection to the same.
9. Withdrawal of Movant's appearance in this matter on behalf of Respondent can
be accomplished without any material adverse affect on his interests, especially in view of the
agreement reached in April 2006, that Movant was going to close its file on the matter.
10. At the present time, the pleading are complete, and no hearings are scheduled,
although there is a pending motion for Summary Judgment filed by the Plaintiffs on which
argument has been listed for April 30, 2009.
11. Movant has advised Respondent of the need to respond to the Motion for
Summary Judgment within thirty (30 ) days of the service of same and to appear at the scheduled
argument on April 29, 2009, and of the consequences of not doing so.
12. Respondent has been informed in writing of Movants' inability to provide further
legal services on his behalf, and of its intention to file the instant Motion.
13. Movant has advised counsel for the Plaintiff's of its intention to file this Motion
and counsel has not responded as of the filing hereof.
WHEREFORE, Movant respectfully requests that this Honorable Court grant it leave to
withdraw its appearance on behalf of George Beamenderfer, Defendant in the above-captioned
action, and to terminate its representation of George Beamenderfer.
Respectfully submitted,
GOLDBERG {KATZMAN, P.C.
J. JAY Gb01bEI0 ESQUIRE
Supreme Court ID #31720
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Date: March 24, 2009
VERIFICATION
I verify that the statements contained in the foregoing MOTION AND RULE TO SHOW
CAUSE WHY COUNSEL SHOULD NOT BE PERMITTED TO WITHDRAW
APPEARANCE AND TERMINATE REPRESENTATION are true and correct to the best of my
knowledge, information and belief. I understand that false statements contained herein are made
subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities.
GOLDBERG KATZMAN, P.C.
Date: r(?r {(ink I 1 2•.
J. JAY P , Esquire
CERTIFICATE OF SERVICE
On this 24"' day of March, 2009, I certify that a copy of the foregoing MOTION AND
RULE TO SHOW CAUSE WHY COUNSEL SHOULD NOT BE PERMITTED TO
WITHDRAW APPEARANCE AND TERMINATE REPRESENTATION was served upon the
following by placing the same in the United States mail, first class, postage prepaid, addressed as
follows:
Joseph A. MaCaluso, Esquire
PO Box 83
Orrstown, Pa. 17244
Attorney for Plaintiffs
George Beamenderfer
PO Box 132
603 Mountain Street
Summerdale, Pa. 17093
GOLDBERG KATZMAN, P.C.
J. Jay Cooper; sq it
Supreme Court ID #31720
172399.1
CERTIFICATE OF SERVICE
On this 16`h day of April, 2009, I certify that a copy of the foregoing PETITION TO
MAKE RULE ABSOLUTE was served upon the following by placing the same in the United
States mail, first class, postage prepaid, addressed as follows:
Joseph A. MaCaluso, Esquire
PO Box 83
Orrstown, Pa. 17244
Attorney for Plaintiffs
George Beamenderfer
PO Box 132
603 Mountain Street
Summerdale, Pa. 17093
GOLDBERG KATZMAN, P.C.
J. Jay o e , squi
Supreme Court ID #31720
173525.1
r 41
W?
APR 17 20x8 C4
I Jay Cooper, Esquire
GOLDBERG KATZMAN, P.C.
320 Market Street, Strawberry Square, P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney I.D. #31720
Attorneys for Defendant
GARY MITCHELL and LINDA
MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER d/b/a/t/a
BHI, BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND CO., PENNSYLVANIA
:AD 2005-6316 CIVIL
ORDER
AND NOW, this 2. o' day of /4'r' / 2009, upon consideration of the
Petition to Make Rule Absolute of Goldberg Katzman, P.C., IT IS HEREBY ORDERED that
the appearances of Goldberg Katzman, P.C., and J. Jay Cooper, Esquire, on behalf George
Beamenderfer d/b/a/t/a BHI, Beamenderfer Home Improvements are hereby withdrawn and their
representation of Defendant terminated..
BY THE COURT
J.
/- ay Coo er Es Goldberg Katzman, P.C. , PO Box 1268, Harrisburg, PA 17108-1268.
eorge Beamenderfer, PO Box 132, 603 Mountain Street, Summerdale, PA 17093
?eph A. Macaluso, Esq., PO Box 83, Orrstown PA
17244
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GARY MITCHELL and LINDA IN THE COURT OF COMMON PLEAS OF
MITCHELL, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION
GEORGE BEAMENDERFER
d/b/a/t/a BHI,
BEAMENDERFER HOME
IMPROVEMENTS,
Defendant Case No. 05-6316
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS, OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this day of May, 2009, upon consideration of Plaintiffs' motion for
summary judgment, and following a hearing held on April 29, 2009, Plaintiffs' motion is
granted and Defendant is ordered to pay $65,257.54, plus interest at the legal rate from
the date of judgment.
BY THE COURT,
J
, seph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
y
Xorge Beamenderfer
603 Mountain St.
Summerdale, PA 17093
Defendant
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v -'w A L
GARY MITCHELL and LINDA
MITCHELL, :
Plaintiffs
V.
GEORGE BEAMENDERFER
d/b/a/t/a BHI, :
BEAMENDERFER HOME
IMPROVEMENTS, :
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
Case No. 05-6316
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS, OLER and GUIDO, JJ.
AMENDED ORDER OF COURT
AND NOW, this 3`d day of June, 2009, the prior order of court docketed in this
matter on May 27, 2009, is hereby amended to reflect the date of the order as May 27,
2009, which was omitted in the prior order. In all other respects, the prior order of court
shall remain in full force and effect.
Joseph A. Macaluso, Esquire
P.O. Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
George Beamenderfer
603 Mountain St.
Summerdale, PA 17093
Defendant
Copjes n1a`1ILL*L
bls1d7
BY THE COURT,
J esley Oler, Jr., J.
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h o o wd S- Nnr Z
MV%W
4
Joseph A. Macaluso, Esq.
Supreme Court I.D. # 38262
Attorney for Plaintiffs
P.O. Box 83
Orrstown, PA 17244
(717) 532 -4832
ILEO- OFFICE
OF THE PROTHONOTARY
2014 APR 30 All ip 52
CUMBERLAND COUNTY
PENNSYLVANIA
GARY MITCHELL AND
LINDA MITCHELL,
Plaintiffs
V.
GEORGE BEAMENDERFER
d /b /a /t/a BHI,
BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05 - 6316 - CIVIL
CIVIL ACTION - LAW
Praecipe to Enter Judgment
To: Cumberland County Prothonotary
Enter judgment upon the Order of Court dated May —, 2009, by The Honorable J.
Wesley Oler, Jr., J. and the Amended Order of Court of Court dated June 3, 2009,
by The Honorable J. Wesley Oler, Jr., J., reflecting the date of the Order as May
27, 2009, entered at Cumberland County Court of Common Pleas No. 05 -6316
and enter it in the judgment index in favor of plaintiffs Gary Mitchell and Linda
Mitchell and against defendant George Beamenderfer dlb /alt/a BHI, Beamenderfer
Home Improvements in the amount of $65,257.54, with interest at the legal rate
from the date of judgment, pursuant to Pa.R.C.P. Rule 3021(a)(3).
Dated: L/.30-
a 3/ g-,2
12-74 A 30o,
Wo - / I /3 3,
Re pectfully Submitted,
ose ' h A. Macaluso, Esq.
pre a Court I.D. # 38262
Att • n-y for Plaintiffs Gary Mitchell and Linda
Mitchell
P.O. Box 83, Orrstown, PA 17244
(717) 532 -4832
GARY MITCHELL and LINDA : IN THE COURT OF COMMON PLEAS OF
MITCHELL, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
GEORGE BEAMENDERFER
d /b /a /t /a BHI,
BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
CIVIL ACTION
Case No. 05 -6316
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS, OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this day of May, 2009, upon consideration. of Plaintiffs' motion for
summary judgment, and following a hearing held on April 29, 2009, Plaintiffs.' motion is
granted and Defendant is ordered to pay $65,257.54, plus interest at the legal rate from
the date of judgment.
BY THE COURT,
Jos h A. Macaluso, Esquire
P Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
George Beamenderfer
603 Mountain St.
Summerdale, PA 17093
Defendant
esley Olei;-
GARY MITCHELL and LINDA ; IN THE COURT OF COMMON PLEAS OF
MITCHELL, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v. CIVIL ACTION
GEORGE BEAMENDERFER :
d /b /a /t /a BHI,
BEAMENDERFER HOME
IMPROVEMENTS,
Defendant
Case No. 05 -6316
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS, OLER and GUIDO, JJ.
AMENDED ORDER OF COURT
AND NOW, this 3rd day of June, 2009, the prior order of court docketed in this
matter on May 27, 2009, is hereby amended to reflect the date of the order as May 27,
2009, which was omitted in the prior order. In all other respects, the prior order of court
shall remain in full force and effect.
eph A. Macaluso, Esquire
.0. Box 83
Orrstown, PA 17244
Attorney for Plaintiffs
George Beamenderfer
603 Mountain St.
Summerdale, PA 17093
Defendant
ti
BY THE COURT,
L-
esley Oler, Jr., J.