Loading...
HomeMy WebLinkAbout02-2751VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : CIVIL ACTION - LAW : :NO. 2002-02751 CIVIL TERM PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION Plaintiffs counsel, Taylor P. Andrews, Esquire, answers Defendant's Motion as follows: 1. It is admitted that the Defendant has filed his Motion promptly after the entry of Default Judgment. It is admitted that Defendant is representing himself in this matter. The Plaintiff has been prejudiced by Defendant's action by unnecessary delay and expense. 2. It is admitted that Defendant has asserted a defense. It is denied that the Defendant's defense is meritorious. 3. Denied as stated. Defendant responded to Plaintiffs' counsel when Defendant received a demand letter. Defendant then agreed to make three installment payments totaling the $931.50 demanded by Plaintiff. The payments were to be made in intervals of 2 weeks with the first payment due by May 31, 2002. Defendant made no payments and suit was filed. It is admitted that Defendant mailed a check in the amount of $310.50 to Plaintiff's counsel with a transmittal letter June 23, 2002. Defendant then promised to make payment in three monthly installments. Plaintiff never accepted these terms. 4. It is denied that the equities favor reopening this case. Though Defendant expresses a defense in the Answer that he has filed, the thrust of Defendant' s grievance as expressed in his motion to open and strike is that he is not receiving credit for the payment already made and that he is being charged court costs. Defendant will receive credit for all payments, and he would be responsible for court costs unless he prevailed in the case. NEW MATTER 5. Plaintiff's claim was first expressed to the Defendant by letter dated April 26, 2002. [a copy of the letter is attached hereto as Exhibit 1 ]. 6. Defendant contacted Plaintiff's counsel in or about May 23, 2002 and offered to pay the amount demanded [$931.50] in 3 equal biweekly payments commencing by May 31, 2002. Plaintiff's counsel told Defendant that his first payment would demonstrate his good faith and would be important for Plaintiffs to forego legal action. 7. Defendant did not make the promised payment by May 31, 2002 and suit was filed on June 2, 2002 with the complaint served on the Defendant by the Sheriff's office on June 7, 2002. 8. Defendant did not respond to the complaint filed by Plaintiff, but rather delivered a payment of $310.50 to Plaintiffs' counsel with a letter dated June 23, 2002 promising to pay the balance of the claim in 2 additional payments in the 2 succeeding months. [a copy of the transmittal letter is attached hereto as Exhibit 2]. 9. Plaintiffs' counsel immediately acknowledged receipt of the $310.50 from Defendant and Plaintiff's counsel notified Defendant that the payment would be applied to the balance, but that there was no agreement to forego legal action, and that the obligation now entailed court costs. [a copy of the Plaintiffs' counsel's letter to Defendant is attached hereto as Exhibit 3]. 10. Plaintiffs' counsel mailed notice of intent to seek default judgment to Defendant on July 1, 2002. [a copy of this notice and the Certificate of Service is attached hereto as Exhibit 4] 11. Defendant entered a pro se appearance on July 12, 2002, but Defendant did not file an answer to the Plaintiffs' complaint. 12. Plaintiff filed a praecipe for default judgment on July 17, 2002. 13. Defendant filed his answer to the complaint on July 22, 2002. WHEREFORE, Plaintiffs pray your honorable court to deny Defendant's Motion to Reopen and Strike Default Judgment. By: ANDREWS & JOHNSON Att'torne)/s for Plaintiff 7g,_W~omfret Street Carlisle, PA 17013 (717) 243-0123 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs Vo WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2002-02751 CIVIL TERM : : CERTIFICATE OF SERVICE I hereby certify that on this date August 5, 2002 I mailed Plaintiff's Answer to Defendant's Motion to the following person at the following addresses by U.S. first class Mail, postage prepaid, addressed to: Date: William Weitzel t/d/b/a Weitzel Painting 176 West Pomfret Street Carlisle, PA 17013 Shelly Se~ ( - TAYLOR P. ANDREWS RONALD E. JOHNSON ANDREWS & JOHNSON Attorneys at Law 78 W. Pomfrct Slreet Carlisle, PA 17013-3216 Telephone (717) 243-0123 Telefax (717) 243-0061 April 26, 2002 Mr. William Weitzel t/d/b/a Weitzel's Painting 176 West Pomfret Street Carlisle, PA 17013 RE: Claim for damages - breach of contract with Vasilis and Maida Kostakis 419 West South Street, Carlisle, PA 17013 Dear Mr. Weitzel: I have been retained by Mr. and Mrs. Kostakis to pursue damages from you for your breach of contract to paint their premises in the summer of 2001. Your contract was for $6,965. You received $3,482.50 fi'om Mr. and Mrs. Kostakis and you left the job without completing the job. To complete the work Mr. and Mrs. Kostakis incurred expenses of $4,414 over and above what they paid you. They have, therefore, been damaged in the amount of $931.50. On behalf of Mr. and Mrs. Kostakis I make demand upon you of payment of $931.50. You should make payment to my office payable to Mr. and Mrs. Kostakis within the next 30 days, or, in the alternative, you should contact my office to make arrangements for payments in the near term. If I do not hear from you within 30 days I shall proceed with legal action that will expose you to additional costs in addition to the underlying claim. Sincerely, ANDREWS & JOHNSON TPA:ss cc: Mr. and Mrs. Vasilis M. Kostakis Taylor P. Andrews [ EXHIBIT 176 V¢. Pomfret St. Carlisle, PA 170! 3 ~v'hen Quality is a Must! Weitzel's Paint 'ng Phone: (7!7) 249-0276 June 23, 2002 Taylor P. Andrews 2~drews & Johnson Carlisle, PA 17013 RE: VaSilis Enclosed equal payments in 93!.50 w3.'!! be paid Cordially, .50. I will make three The balance of Commercial · Industrial Fully Insured Residential TAYLOR P. ANDREWS RONALD E. JOHNSON ANDREWS & JOHNSON Attorneys at Law 78 W. Pomfret Street Carlisle, PA 17013-3216 Telephone (717) 243-0123 Telefax (717) 243-0061 June 26, 2002 Mr. William Weitzel t/d/b/a Weitzel's Painting 176 West Pomfret Street Carlisle, PA 17013 RE: Kostakis vs. Weiztel Dear Mr. Weitzel: I acknowledge receipt of a check from you in the amount of $310.50. I will apply this towards the balance owed to my clients. Please be advised that we do not make any promises about forbearing legal action pending your payment over the next two months. Your original discussions with me were to make three installments payments with the first payment by the beginning of June and the other two payments spaced at two weeks apart. You will be responsible for court costs in addition to the amount of the original demand. At this point the court cost total $76.95. Sincerely, ANDREWS & JOHNSON TPA:ss cc: Mr. and Mrs. Vasilis M. Kostakis Taylor P. Andrews VASILIS M. KOSTAKIS and MArDA KOSTAKIS, Plaimiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2002-02751 CIVIL TERM TO: William Weitzel t/d/b/a Weitzel Painting 176 West Pomfret Street Carlisle, PA 17013 DATE OF NOTICE: July 1, 2002 .IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAH.ED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 By . ~/~__~Z~°~4::~~ - - T)ylor P. Andrews, Esq. ~ West Pomfret Street Carlisle, PA 17013 (717) 243-0123 EXHIBIT i VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs Vo WILLIAM WEITZEL t/dPo/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : CIVIL ACTION - LAW : : NO. 2002-02751 CIVIL TERM : CERTIFICATE OF SERVICE I hereby certify that on this date July I, 2002 1 mailed a Notice of Default to the following person at the following addresses by U.S. first class Mail, postage prepaid, addressed to: Date: William Weitzel t/d/b/a Weitzel Painting 176 West Pomfret Street Carlisle, PA 17013 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 02-,2 ?.~'t CIVIL TERM NOTICE YOU HAVE BEEN SUED 1N COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written 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 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 SHERIFF'S RETURN CASE NO: 2002-02751 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOSTAKIS VASILIS M ET AL VS WEITZEL WILLIAM TDBA WEITZEL'S - REGULAR HAROLD WEARY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WEITZEL WILLIAM TDBA WEITZEL'S PAINTING the DEFENDANT , at 1548:00 HOURS, at 176 WEST POMFRET STREET CARLISLE, PA 17013 on the 7th day of June , 2002 by handing to WILLIAM WEITZEL a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this /7~ day of ~j .... ~_~ A.D. ~P~othonotary So Answers: 06/10/2002 TAYLOR ANDREWS By: Sheri~ VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. O.a ..fi'?ff'l CIVILTERM COMPLAINT Plaintiffs, by their counsel, Taylor P. Andrews, Esquire, respectfully represent: 1. Plaintiffs are Vasilis M. Kostakis and Maida Kostakis, adult individuals who now reside at 323 Oakwood Avenue, State College, Pennsylvania 16803. 2. Defendant is William Weitzel, an adult individual, who trades and does business as Weitzel's Painting from his address at 176 West Pomfret Street, Carlisle, PA 17013. 3. On May 10, 2001 Plaintiffs and Defendant entered into a written agreement for Defendant to perform certain exterior painting of the Plaintiffs' premises at 419 West South Street, Carlisle, Pennsylvania. (A copy of this agreement is attached hereto as Exhibit 1). 4. On May 10, 2001 in accordance with the above referenced contract Plaintiffs paid Defendant $3,482.50. 5. On June 18, 2001 Plaintiffs and Defendant memorialized additional directions and instructions pertaining to the exterior painting which Defendant was to perform. This memorandum was signed by Plaintiffs and the Defendant on June 18, 2001. (A copy of the memorandum is attached hereto as Exhibit 2). 6. By July 2, 2001 Defendant had partially performed the exterior painting work that he contracted to complete. In the course of doing so he damaged Plaintiffs property by breaking a second floor window and by gouging the wooden floor of the front porch. 7. On July 2, 2001 Defendant stopped his work on the exterior painting and, despite requests from Plaintiffs that the work be completed, Defendant refused to complete the exterior painting work that he had contracted to perform. 8. Plaintiffs were forced to retain the services of another professional painter to complete the work that Defendant was to perform. 9. The cost to Plaintiffs of completing the work that was to have been completed by Defendant was $4,414 in addition to the original deposit given to the Defendant. Defendant breached his contract with the Plaintiffs by leaving the job site with the work 10. incomplete. 11. Plaintiffs have been damaged by incurring expenses over the original contract price in the amount of $931.50. WHEREFORE, Plaintiffs pray your honorable court to enter judgment against the Defendant in the amount of $931.50 plus costs and interest from the date of judgment. ANDREWS & JOHNSON T ,r P. Andrews, Esquire aeys for Plaintiff /q. Pomfret Street Carlisle, PA 17013 (717) 243-0123 ! 76 ~ Pomfret St. Carlisle, PA 17013 gVhen Quality is a Must! Weitzel's Painting Phone: J717] 24-9-0276 May 8, 2001 V:~ilis & Maida Kcetakis 419 West South Stxcet Carlisle, Pa. 17013 RE: ]Bxterior painting c~ 419 West South Street All ~xlwork will be washed usin$ Tri-Sodinm Phosphate (TSP) All v~xi~mk will then be thorougMy s~oed and sanded, except for the front porch col,mn.~, top *N~: Gara~ will on~ Dormer roof and porch ro~ ~ill be prel~i and painted usin$ a high-grade ro~ ccatin~. (l~xmor Wrought iron railin~ in tli~ front will be prepped, primed and painted. Several brass bulb ornamental fixtures will be polished and sprayed clear. First floor storm vandow frame~ vall be ps=pped and pmnted white. Cinder block foan~aon in the back wilt be painted to match front por~ floor. Time and materials will be charged for any cracked or broken windows needing replacement. One man-hour = $25.00. Total price $6,965.00 Terra~: V~ down upon start and belance due upon oompletion. Signature /"'lAY lO ~ 9.00 Date Date EXHIBIT Commercial · Industrial Fully Insured · Residential CLARIFYING THE MAY 8, 2001 PAINTING CONTRACT AT 419 WEST SOUTH STREET CARLISLE, PA. 17013 The items below, based upon previous discussions and correspondence, need to be clarified in the May 8 contract: First, prior to any painting taking place, repairs to the attached neighbor's house should be completed, so that the 419 dwelling will not be affected by any water damage which could originate from the next door home. Second, surfaces will be washed by hand with a brush and rinsed with an ordinary hose. No damaging power hosing on any surface will take place. Scrapings, debris, lead paint, chippings, etc., will be arrested by protective canvas, placed around the perimeter of the house. Any excess paint on window mullions will be removed with a retractable razor blade, so that there is a straight-line appearance in place on these mullions after painting. Third, prepping of the metal roofs includes patchwork that should be allowed sufficient time to adhere/dry so that the paint overcoats do not crack (a condition that usually happens when paint is applied to semi-dry roof cement). Also, it is understood that the metal surfaces will be primed (with, perhaps Rustoleum, or something equivalent) and painted two glossy coats, the exact color of which will be determined at the time of application (barn red for one; reflective white for the other). Fourth, the iron railings (front and back of the house, all sides included--basement grills as well) will he scraped, primed (perhaps with Rustoleum or an equivalent), and painted with two coats of glossy black. Wooden porch lattices should be primed, painted on both faces with two ooats, and slightly raised above the ground (perhaps with a few bricks), so they do not make direct contact with the wet ground. Finally, storm window frames will be painted with white paint formulated to adhere on aluminum surfaces. However, this last item could be deleted if the conclusion is reached that it will be better off for these frames simply to be wire-brushed, in the event that such painting will lead to peeling within a short time period. Signature ' / - Date Signature Date VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. DATE: ]~y SO, ~-(~)~. Vasilis M. Kostakis DATE:~,,7.~ M~i~a Ko'takes - July 12, 2002 VASILIS M. KOSTAKIS and MA1DA KOSTAKIS CIVIL ACTION - LAW NO. 2002-02751 CIVIL TERM Vo WILLIAM V~fE1TZF~L t/d/b/a WE1TZF. L' S PAINTING Pro S~ Ann~arance I am filing this foam in response to the above mentioned civil action against me. I will be reprosenting myseffin this case. 176 We, st Pomfret Street Carlisle, Pa. 17013 (717) 249-0276 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ; : CIVIL ACTION - LAW : : NO. 02-2751 CIVIL TERM : MOTION TO REOPEN AND TO STRIKE DEFAULT JUDGMENT Defendant received a Praecipe dated July 17, 2002 from the Plaintiffs' attorney in this matter on the afternoon of July 18, 2001. Defendant understands that the Court may enter a Default Judgment on the basis of this filing. Defendant respectfully requests that this Court strike the Default Judgment and reopen this matter. In support of this Motion, Defendant represents the following to the Court: 1. This Motion to Has Been Filed Immediately. Defendant filed this Motion on the second business day following receipt of the Praecipe. Defendant is representing himself in this matter, and did not immediately understand the significance of the Praecipe until after he spoke with a friend. This Motion has been filed as quickly as possible, and there has been no prejudice to the plaintiffs or to this Court. 2. Defendant has Meritorious Defenses and Has Answered the Com laint and Filed a Counterclaim. Defendant was defaulted for failing to appear and for failing to file an Answer to the Complaint. Defendant filed an appearance on Friday, July 12, 2002. Defendant filed an Answer and Counterclaim on Monday, July 22, 2002, the date of this Motion. Defendant denies liability to the plaintiffs and has filed a Counterclaim. 3. Defendant has Acted in Good Faith and Has a Reasonable Ex lanation for Bein in Default. Upon receiving the Complaint, Defendant went to the offices of Plaintiffs' counsel in this matter, explained that the claim against him was not valid, but agreed that he would rather return some of the contract money than have to fight this matter. Defendant agreed that he would make several payments to plaintiffs, without admitting any liability, solely for the purpose of ending the matter. Defendant mailed a check in the amount of $3 I0.50 to plaintiff's counsel in late June, and assumed that the matter was being resolved. Defendant then received a letter from plaintiffs' counsel dated June 26, 2002 which demanded that Defendant also pay court costs of $76.95. Defendant had never agreed to this payment, and his agreement to make any payments was conditioned on not having to go to court. Plaintiffs' counsel then filed a Motion to Default on July l, even though he had received a payment from Defendant. Defendant, not represented by an attorney, believed that he needed to file an Appearance with the Court in response to the Motion, and Defendant did so. Thus, Defendant believed that he was doing everything necessary by filing the Appearance, and believed that the matter was going to be resolved informally. Plaintiffs' attorney then filed a Praecipe, and Defendant then learned that he needed to file an Answer to avoid Default Judgment. Immediately upon realizing this, Defendant filed an Answer and this Motion. Defendant reasonably believed that this matter would be resolved without having to go to court, based on discussions with Plaintiffs' attorney. Defendant reasonably believed that he had responded to the original motion for Default Judgment by filing an Appearance. Defendant has immediately filed an Answer and this Motion upon learning that it was required in response to the Motion. Defendant did not neglect this matter, nor did Defendant intentionally default in this matter. 4. The Equities Favor Reopening this Cas~. The plaintiffs have filed for a Default Judgment in the amount of $931.50, despite acknowledging that they received a check in the amount of $310.50 from the Defendant as a payment against this claim. The plaintiffs Motion for Default Judgment therefore is not supported by the facts as they admit them, and is based on not fully disclosing facts to the Court regarding a payment made by the Defendant. Also, Defendant is unrepresented by counsel in this matter, and he reasonably believed that his payments on the illegitimate demands by the plaintiffs would eliminate the need for court filings. Because the plaintiffs have sought a Default Judgment in an amount that they acknowiedge is no longer owed to them, and have done so in a manner that has taken advantage of Defendant's reasonable beliefs and unfamiliarity with court proceedings, the equities demand that this case be reopened. WHEREFORE, Defendant prays that this honorable Court reopen this case and strike the default judgment entered by the Praecipe filed in this matter. WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING William Weitzel~ J 176 West Pom~ret S'~treet Carlisle, PA 17013 (717) 249-0276 Dated: July 22, 2002 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 02-2751 CIVIL TERM : ANSWER Defendant answers the plaintiffs' Complaint by respectfully representing: 1. Defendant has no personal knowledge regarding these allegations, and leaves the plaintiffs to their proof. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Defendant admits that by July 2, 2001, he had partially performed the exterior painting work that he contracted to complete. Defendant admits that he broke a second floor window in the course of painting the house, but adds that he agreed to repair the window himself and that this was acceptable to the plaintiffs. Defendant denies that he "gouged" the wooden floor of the front porch. Defendant does admit that the punky condition of the wood on the porch meant that he could not avoid making some marks on the wood when properly scraping the paint, and that any such marks could easily be repaired. 7. Admitted. Defendant stopped work on the house because of the plaintiffs' unreasonable behavior. 8. Admitted. 9. Defendant has no personal knowledge regarding these allegations, and leaves the plaintiffs to their proof. Defendant denies that the work remaining under the contract as originally agreed between the parties was worth $4,414. 10. Denied. 11. Denied. To the extent that the plaintiffs paid additional money beyond the original contract price it was for work beyond the scope of the original contract or was payment in excess of the value of the service provided. COUNTERCLAIM 1. Defendant left the jobsite because the plaintiffs continually made unreasonable demands during Defendant's work on their house, demanding that the Defendant perform work that was not part of the contract between the parties. 2. The following are some examples of the plaintiffs' unreasonable demands during the course of the project: a. The plaintiffs demanded that the paint on the sash and mullions not just appear straight, but that the lines be as straight as a paper edge; b. The plaintiffs demanded that Defendant remove and replace what they claimed to be excess glazing in the windows that was not in need of replacing. c. The plaintiffs demanded that Defendant scrape the wood until absolutely no paint remained, rather than removing all failed paint in accordance with ordinary standards of professional painting. d. The plaintiffs constantly berated Defendant for not performing well, questioned his ability to perform the work in a satisfactory manner, and went so far as to try to demonstrate proper sanding techniques. In sum, the plaintiffs were unreasonable and impossible to work with under the terms of the contract. 3. The plaintiffs demanded that Defendant perform to the level of a restoration painting job, rather than to the level agreed in their contract. Because the plaintiffs refused to accept work performed in accordance with the contract, and because the plaintiffs were so unpleasant during the course of the work, Defendant had no option but to cancel work under the contract. 4. Defendant spent 131 hours performing work at the plaintiffs' house. Athis customary and usual rate of $25 per hour, Defendant is entitled to receive $3,275 for his labor. house. Defendant used $200 worth of materials while performing work at the plaintiff's 6. Defendant returned $310.50 of the original deposit of $3,482.50 to the plaintiffs' lawyer in this matter, with the result that Defendant received $3,172 from the plaintiffs for work under the contract. WHEREFORE, Defendant prays that your honorable court enter judgment against the Plaintiffs on this Counterclaim in the amount of $303. WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Carlisle, PA 17013 (717) 249-0276 Dated: July 22, 2002 VASILIS M. KOSTAKIS AND MAIDA KOSTAKIS, PLAINTIFFS/RESPONDENTS WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING DEFENDANT/PETITIONER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · 02-2751 CIVIL TERM ORDER OF COURT day of July, 2002, upon consideration of the AND NOW, this ~--~, foregoing petition, IT IS ORDERED: (1) A Rule is issued against respondents, Vasilis M. Kostakis and Maida Kostakis, to show cause why the motion to reopen and to strike default judgment should not be granted. (2) Respondent shall file an answer to the petition within fifteen (15) days of service. (3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within thirty-five (35) days of service. (5) Briefs shall be filed by both parties in chambers not later than Monday, September 16, 2002, and argument shall be held on Wednesday, September 18, 2002, at 8:45 a.m., in chambers. (6) Notice of the entry of this order shall be provided to all parties by petitioner. (7) All proceedings shall stay pending further order o~o~~ By~ Edgar B. Bayley, J. Taylor P. Andrews, Esquire For Plaintiff/Respondent William Weitzel, Pro se 176 West Pomfret Street Carlisle, PA 17013 :saa -2- JUL ¢ ZOOZ VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ; : CIVIL ACTION - LAW : : NO. 02-2751 CIVIL TERM : : ORDER REOPENING CASE AND STRIKING DEFAULT JUDGMENT The Court, having reviewed Defendant's Motion to Reopen and to Strike the Default Judgment, and finding that the Defendant's Motion should be granted, hereby ORDERS that the case be reopened and the Default Judgment in favor of the plaintiffs be stricken. BY THE COURT VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs Vo WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 02-2751 CIVIL TERM : MOTION TO REOPEN AND TO STRIKE DEFAULT JUDGMENT Defendant received a Praecipe dated July 17, 2002 from the Plaintiffs' attorney in this matter on the afternoon of July 18, 2001. Defendant understands that the Court may enter a Default Judgment on the basis of this filing. Defendant respectfully requests that this Court strike the Default Judgment and reopen this matter. In support of this Motion, Defendant represents the following to the Court: 1. This Motion to Has Been Filed Immediately. Defendant filed this Motion on the second business day following receipt of the Praecipe. Defendant is representing himself in this matter, and did not immediately understand the significance of the Praecipe until after he spoke with a friend. This Motion has been filed as quickly as possible, and there has been no prejudice to the plaintiffs or to this Court. 2. Defendant has Meritorious Defenses and Has Answered the Corn laint and Filed a Counterclaim. Defendant was defaulted for failing to appear and for failing to file an Answer to the Complaint. Defendant filed an appearance on Friday, July 12, 2002. Defendant filed an Answer and Counterclaim on Monday, July 22, 2002, the date of this Motion. Defendant denies liability to the plaintiffs and has filed a Counterclaim. 3. Defendant has Acted in Good Faith and Has a Reasonable Ex lanation for Bein in _Default. Upon receiving the Complaint, Defendant went to the offices of Plaintiffs' counsel in this matter, explained that the claim against him was not valid, but agreed that he would rather return some of the contract money than have to fight this matter. Defendant agreed that he would make several payments to plaintiffs, without admitting any liability, solely for the purpose of ending the matter. Defendant mailed a check in the amount of $310.50 to plaintiff's counsel in late June, and assumed that the matter was being resolved. Defendant then received a letter from plaintiffs' counsel dated June 26, 2002 which demanded that Defendant also pay court costs of $76.95. Defendant had never agreed to this payment, and his agreement to make any payments was conditioned on not having to go to court. Plaintiffs' counsel then filed a Motion to Default on July 1, even though he had received a payment from Defendant. Defendant, not represented by an attorney, believed that he needed to file an Appearance with the Court in response to the Motion, and Defendant did so. Thus, Defendant believed that he was doing everything necessary by filing the Appearance, and believed that the matter was going to be resolved informally. Plaintiffs' attorney then filed a Praecipe, and Defendant then learned that he needed to file an Answer to avoid Default Judgment. Immediately upon realizing this, Defendant filed an Answer and this Motion. Defendant reasonably believed that this matter would be resolved without having to go to court, based on discussions with Plaintiffs' attorney. Defendant reasonably believed that he had responded to the original motion for Default Judgment by filing an Appearance. Defendant has immediately filed an Answer and this Motion upon learning that it was required in response to the Motion. Defendant did not neglect this matter, nor did Defendant intentionally default in this matter. 4..The Equities Favor Reopening this Case_ The plaintiffs have flied for a Default Judgment in the amount of $931.50, despite acknowledging that they received a check in the amount of $310.50 from the Defendant as a payment against this claim. The plaintiffs Motion for Default Judgment therefore is not supported by the facts as they admit them, and is based on not fully disclosing facts to the Court regarding a payment made by the Defendant. Also, Defendant is unrepresented by counsel in this matter, and he reasonably believed that his payments on the illegitimate demands by the plaintiffs would eliminate the need for court filings. Because the plaintiffs have sought a Default Judgment in an amount that they acknowledge is no longer owed to them, and have done so in a manner that has taken advantage of Defendant's reasonable beliefs and unfamiliarity with court proceedings, the equities demand that this case be reopened. WHEREFORE, Defendant prays that this honorable Court reopen this case and strike the default judgment entered by the Praecipe filed in this matter. WILLIAM WEITZEL ffd/b/a WEITZEL'S PAINTING Carlisle, PA 17013 (717) 249-0276 Dated: July 22, 2002 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW :NO. 2002-02751 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Pursuant to PA Rule of Civil Procedure 237.1 enter judgment by Default in favor of the Plaintiff and against the Defendant in the above captioned case in the amount of $931.50 plus costs. I certify that a written Notice of Intention to File a Praecipe for Default Judgment was mailed to the Defendant on July 1, 2002. A copy of the Notice and a Certificate of Service is attached to this Praecipe. By '//~--~'~22~!1!~' ~/a~or P.~drews, Esq. /78 )/Vest Pomfret Street kg2~lisle, PA 17013 (717) 243-0123 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 2002-02751 CIVIL TERM TO: William W¢itzel t/dgo/a Weitzel Painting 176 West Pomfret Street Carlisle, PA 17013 DATE OF NOTICE: July 1, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT M_AY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU M_AY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 Carlisle, PA 17013 (717) 243-0123 VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : :NO. 2002-02751 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that on this date July 1, 2002 1 mailed a Notice of Default to the following person at the following addresses by U.S. first class Mail, postage prepaid, addressed to: William Weitzel t/dPo/a Weitzel Painting 176 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs Vo WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : :NO. 2002-02751 CIVIL TERM : : ORDER OF COURT AND NOW, this~ day of August 2002, the Argument on the Defendant's Motion to Strike Default Judgment and to Open Judgment in the above captioned case, previously scheduled for i8 Wednesday, September ~4~', 2002 at 8:45 a.m. is hereby rescheduled to September L~g, 2002 at 2:00 p.m. The remainder of the Order of Court dated July 29, 2002 remains in full force and effect. Edgar B. Bayle'3; ~. ~ William Weitzel, Defendant, Pro Se 176 West Pomfret Street Carlisle, PA 17013 Taylor P. Andrews, Esq. Attorney for Plaintiffs CC: VASILIS M. KOSTAKIS and MAIDA KOSTAKIS, Plaintiffs Vo WILLIAM WEITZEL t/d/b/a WEITZEL'S PAINTING Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2002-02751 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Please mark the judgment previously entered in the above captioned case as satisfied. ANDREW~ 4or'lff. Andrews, Esq. West Pomfret Street ~ ;arlisle, PA 17013 (717) 243-0123 CCi Hubert X. Gilroy, Esquire Attorney for Defendant