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ENGLE v. SHAPERT CONSTR. CO.

February 9, 1978

SAMUEL A. ENGLE and DOROTHY I. ENGLE, Plaintiffs
v.
SHAPERT CONSTRUCTION COMPANY, a Pennsylvania Corporation, and PAUL E. SHAPERT, Individually and as President of Shapert Construction Company, Inc., and THEIR AGENTS, SALESMEN, EMPLOYEES ACTING IN CONCERT WITH THEM OR AT THEIR DIRECTION OR UNDER THEIR CONTROL, Defendants


Herman


The opinion of the court was delivered by: HERMAN

This case arises from a contract for the installation of steel siding on the house of Plaintiffs, Samuel and Dorothy Engle. As more fully set forth below, disputes arose as to the terms of the contract and the quality of the work performed, with the result being that Plaintiffs refused to consummate a loan from the Western Pennsylvania National Bank which had been arranged to finance the job. Defendant Shapert, unable to secure payment from the bank under the proposed loan, confessed judgment against Plaintiffs pursuant to a cognovit note which Plaintiffs had signed in conjunction with the contract documents. After a writ of execution was issued, Plaintiffs filed this suit, alleging violations of the Consumer Credit Protection Act and violation of their constitutional right to due process of law, and the late Chief Judge Sheridan issued a temporary restraining order restraining a sheriff's sale of Plaintiffs' home. Defendants then counterclaimed for the contract price.

After several continuances, the case was tried before Judge Sheridan without a jury on July 6 and 7, 1976. Judge Sheridan died shortly thereafter without having rendered a decision. This decision is based on review of the trial transcript and exhibits, and arguments of counsel heard on May 19, 1977.

 I. FINDINGS OF FACT

 1. The Plaintiffs, Samuel A. Engle, age 75, and Dorothy I. Engle, age 60, reside at 437 Vine Street, Sunbury, Northumberland County, Pennsylvania. *fn1" Plaintiffs' sole sources of income are a small pension and Social Security disability payments, totalling about $250.00 per month.

 2. The Defendant Shapert Construction Company, is a corporation incorporated in and registered with the Commonwealth of Pennsylvania, having its principal place of business at 3722 Perrysville Avenue, Allegheny County, Pittsburgh, Pennsylvania.

 3. The Defendant Paul E. Shapert is President and principal executive officer of Shapert Construction Company, Inc., and is a dealer licensed under Title I of the National Housing Act, 12 U.S.C.A. Section 1703(a).

 4. The agents, salesmen and employees of Shapert Construction Company, Inc., as of October, 1973, all having been hired by Paul E. Shapert, included Patsy Arabia, also known as "Pat Rizzo", and included Herbert Keller, Ken Zerfoss and David Kaplan.

 5. The regular and normal course of business of Shapert Construction Company, Inc., its officers, agents and employees, was the sale door-to-door of home improvement products, primarily aluminum and steel siding, by use of installment sales contracts.

 6. The regular and normal financing of said contracts in October, 1973 was by loans to the dealer, Shapert Construction Company, Inc., from Western Pennsylvania National Bank, having its principal place of business in Pittsburgh, Pennsylvania.

 7. On October 9, 1973 Patsy Arabia, as a salesman and agent for Shapert Construction Company, Inc., made an unsolicited visit to the Engle residence, identified himself as "Pat Rizzo" of Shapert Construction Company, Inc., and told the Engles their home had been selected for promotional advertising if they would purchase siding for the entire home.

 8. During his visit, despite numerous refusals by the Engles, agent Arabia continued with various forms of inducements, including statements that:

 
a. the home location was ideal for advertising;
 
b. a "special price" would include installing two doors and four windows, for a total price, with siding on the entire home, of $3,000.00;
 
c. free gifts, $25.00 referral fees and job offers would be made;
 
d. the first payment would not be due for six months, and flexible payment terms would be available if the Engles' income were interrupted;
 
e. disability and life insurance was available for Mr. Engle.

 9. The Engles finally signed a contract, dated October 9, 1973 for "siding on entire home", foil insulation, white trim, two doors and four windows, checking all lumber on home and with "all work to be of first class quality", at a price of $3,690.00.

 10. The contract documents and loan application were prepared by the salesman, Patsy Arabia, and presented to the Engles for signature without fully explaining their contents. One copy of a form containing Truth in Lending disclosures was given to the Engles at that time.

 11. On October 12, 1973 Paul Shapert called the Engles and informed them that he would be out very ...


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