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Home My WebLink About98-6857 civilINTEGRA PAINTING, INC., PLAINTIFF V. HUTCH CONSTRUCTION, INC., JAMES HUTCHISON, individually and t/a HUTCH CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANTS 98-6857 CIVIL TERM VERDICT AND OPINION Bayley, J., December .10, '1999:-- Plaintiff, Integra Painting, Inc., filed a complaint against James Hutchison, individually and t/a Hutch Construction, and Hutch Construction, Inc., seeking $5,219, plus legal interest and costs. Pursuant to Pa. Rule of Civil Procedure 1038, a trial without a jury was conducted on December 6, 1999, only on plaintiff's claim against James Hutchison, individually and tJa Hutch Construction.' We find the following facts. Defendant, James Hutchison, individually and tJa Hutch Construction was a builder of custom homes. Hutch Construction is a fictitious name filed by James Hutchison with the Commonwealth of Pennsylvania. James Hutchison started his business about twenty years ago. In 1977, plaintiff began painting some homes constructed by Hutch Construction. On April 2'1, '1998, plaintiff sent written estimates to "Hutch Construction At'tn: Klm Shat'to," for painting the Consevage home. One ~ The claim against Hutch Construction, Inc., could not proceed to trial because the corporation has filed for bankruptcy. A counterclaim by Hutch Construction, Inc., involving a dispute not related to plaintiff's claim in this case, also could not proceed to trial for the same reason. 98-6857 CIVIL TERM estimate was for a flat finish totaling $11,119, and the second for a satin finish totaling $14,901. Kim Shatto was an assistant to James Hutchison. Plaintiff sent the estimates after Kim Shatto had sent it blueprints in order to prepare the estimates. On a letterhead titled "Hutch Construction," Kim Shatto sent a work order by fax to plaintiff on May 13, 1998, regarding the Consevage home, which stated: Consevage Paint & Stain Colors Wall Paint- Flat- Duron 8721W- Clay beige Interior Doors - Duron 8720W- Pongee Tint Stain Color- (Matches Bruce Gunstock Hardwood) - Minwax Golden Pecan All Exterior man doors (No garage doors) - Duron 8084M Kentucky Grass For your info - Trim is being delivered today, so you can start staining any time. Thanks (Emphasis added.) After receiving the work order, plaintiff, as authorized, started painting the Consevage home based on the instructions regarding colors and the use of a flat finiSh. On May 23, 1998, plaintiff submitted an invoice to "Hutch Construction" for $8,000 of work it had completed on the Consevage home since May 13th. A second invoice was sent on June 12, 1998, for $2,000 and a third invoice on June 30, 1998, for $1,119. The three invoices totaled the estimate of $11,119 for the use of a flat finish. A fourth invoice was sent on June 30, 1998, for an extra in the amount of $465. Two invoices were sent for extras on July 5, 1998, each for $50. The total charged by plaintiff was $11,684 for work that it performed in a workmanlike manner. Plaintiff was paid $6,465 leaving a balance of $5,219. The $6,465 was paid by several checks issued on an account in the name of Hutch Construction, Inc. The checks were generated by a -2- 98-6857 CIVIL TERM computer program that would not process payment of any invoices without a purchase order which was issued on May 22, 1998, for $11,119. James Hutchison incorporated a business with the name of Hutch Construction, Inc., as of December 31, 1997, when Articles of Incorporation were issued. Hutchison never told James Dymski, the president of Integra Painting, Inc., that he had incorporated, although he had told him in mid-1997 that he was planning to incorporate. By May 13, 1998, Hutchison believed that Dymski knew of the corporation, although Dymski did not know or have reason to know. Prior to May 13, 1998, when "Hutch Construction" sent the work order to plaintiff with the specifications for painting the Consevage home, and instructions to start staining any time, Hutch Construction, Inc., had issued checks to plaintiff on January 19 and 30 and February 20, 1998, for payment of other painting projects that plaintiff had performed for Hutch Construction. James Dymski processed these checks along with many other checks received from other clients, and having no reason to take notice he did not see that the checks were issued by Hutch Construction, Inc. DISCUSSION Defendant, James Hutchison t/a Hutch Construction, maintains that he did not enter into the contract with plaintiff for painting the Consevage residence; rather, the contract was with Hutch Construction, Inc. Therefore, he argues, because he was not a party to the contract he cannot be liable for its breach. See Electron Energy Corporation v. Short, 408 Pa. Super. 563 (1991). Defendant's position is not -3- 98-6857 CIVIL TERM supported by the facts as found by this court. In response to the request by James Hutchison's assistant, Klm Shatto, for two estimates for painting the Consevage home, and after having reviewed the blueprints sent to it by Shatto, plaintiff submitted the estimates to Hutch Construction. Plaintiff did not know that at the end of 1997, Hutch Construction, Inc., had been incorporated. After receiving the estimates sent to Hutch Construction, not Hutch Construction, Inc., a work order was issued on May 15, 1998, by Hutch Construction, not Hutch Construction, Inc., authorizing plaintiff to start work at any time using the colors designated with a flat finish. The issuance of the work order was the acceptance of plaintiff's offer to paint the Consevage home for $11,119 using a flat finish. Thus, the contract was between plaintiff and Hutch Construction which issued the work order. In the next ten days plaintiff performed and billed Hutch Construction for $8,000 of the work called for in the $11,119 contract. Plaintiff then completed all the work with extras for a total of $11,684 of which there is owing $5,219. Defendant maintains that plaintiff has not met the requirements for piercing the corporate veil. See Lumax Industries, Inc. v. Aultman, 669 A.2d 893 (Pa. 1995). That is not an issue because no corporate veil is being pierced by plaintiff. Plaintiff did not know that James Hutchison t/a Hutch Construction had incorporated when it made an offer to provide painting to Hutch Construction which was accepted by Hutch Construction, not Hutch Construction, Inc. The contract was with defendant herein, not Hutch Construction, Inc. -4- 98-6857 CIVIL TERM Defendant further maintains that because all checks totaling $6,465 issued to plaintiff in partial payment for painting the Consevage home were issued on an account of Hutch Construction, Inc., he cannot be held personally liable. Defendant has cited no authority, nor have we found any, nor does it make any sense that partial payment of a debt by a third party renders the obligation of the actual party to the contract unenforceable against that party. In conclusion, we find that plaintiff, Integra Painting, Inc., entered into a contract to paint the Consevage home with Hutch Construction which was a fictitious name used by James Hutchison. Plaintiff performed the contract on which there is $5,219 due and owing since August 1, 1998. Plaintiff is entitled to legal interest since that date because interest on money owed for breach of contract of the value of the promised performance is a legal right. Fernandez v. Levin, 519 Pa. 375 (1988). Accordingly, the following order verdict is entered. AND NOW, this VERDICT day of December, 1999, I find in favor of plaintiff and award damages against James Hutchison, individually and tJa Hutch Construction, in the amount of $5,219 with legal interest of six percent since August 1, 1998, and costs. Edgar B. Bayle/y J.~ / -5- 98-6857 CIVIL TERM Timothy J. Huber, Esquire For Plaintiff Paige Macdonald-Matthes, Esquire For James Hutchison, individually and t/a Hutch Construction :saa -6-