# GIDDINGS v. BROWN & BROWN GENERAL CONTRACTORS, INC.

> District Court, E.D. Pennsylvania · March 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10398704

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10398704

## How later opinions describe it (automated extraction)

- affirming award of treble damages where defendant acted recklessly by violating landlord and tenant law and rushing potential lessees to pay an excessive security deposit which was ultimately forfeited

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELBERT ANTHONY GIDDINGS, et al. : CIVIL ACTION
:
v. : No. 16-4917
:
BROWN & BROWN GENERAL :
CONTRACTORS, INC., et al. :

MEMORANDUM
Juan R. Sánchez, C.J. March 23, 2020
This case arises from two home improvement projects gone wrong. Plaintiffs Elbert
Anthony Giddings, Eunice Isaac, and Pullen A. Osagie sued Defendants Joel Brown and Brown
& Brown General Contractors, Inc. (collectively, Brown) alleging violations of two Pennsylvania
consumer protection statutes after Brown agreed to complete the projects, took Plaintiffs’ money,
and abandoned the projects. After Plaintiffs filed and served their Complaint, Brown failed to
appear. The Clerk of Court entered Brown’s default and Plaintiffs now move for default judgment
pursuant to Federal Rule of Civil Procedure 55. At the hearing to assess damages for default
judgment, Brown appeared and was represented by counsel. Upon hearing testimony and
reviewing both parties’ evidence as to damages, the Court will grant Plaintiffs’ motion, enter
judgment in Plaintiffs’ favor, and award Plaintiffs damages in the amount of $48,405.
BACKGROUND
Giddings and his mother Isaac own a home at 5826 N. 16th Street in Philadelphia. In
January 2016, a pipe in one of the bedrooms burst and damaged the property. Giddings then filed
an insurance claim to cover the costs to repair the damage. Giddings hired Brown to repair the
damage. Giddings had previously used Brown for other projects and had a personal relationship
with him. Unknown to Giddings, Brown was not a Pennsylvania licensed contractor.
Giddings permitted his insurance company to make his insurance payment directly to
Brown. Thereafter, the insurance company sent a check to Brown for $10,000. Giddings also
provided Brown with a second check for $7,000. Brown cashed these checks.
Brown did not provide Giddings with an invoice for the work that amounted to $17,000.
He did provide Giddings with a letter in which they agreed an invoice would be sent to Giddings’s

insurer. The invoice to the insurer stated Brown would remove the contents and dry the house for
a total of $13,500.
Although Giddings paid Brown $17,000, Giddings testified Brown completed no work on
his property. Brown, on the other hand, testified he completed all work that he was paid to
complete. Specifically, he testified as to the work he completed including boxing and removing all
furniture and belongings in the house. He testified he dried the floors from the water damage and
removed all damaged rugs. After clearing the contents and drying, Brown testified that he ran
nearly 52 feet of copper pipes, removed old insulation, and replaced a radiator. He also testified
and provided a photo of a hole in the floor that he repaired by covering with a wooden plank.

Despite the work Brown contends he completed, he admitted he did not complete the all
of the work he was hired to complete. He stated he stopped working because he was not paid
enough to complete the rest of the job. Once he stopped working, Brown testified there was $3,000
remaining from the money Giddings paid him. This money was never returned to Giddings.
Osagie owns a rental property at 2115 Simon Street in Philadelphia. In 2015, Osagie hired
Brown to renovate his property after it was damaged by previous tenants. He hired Brown based
on Giddings’s referral and recommendation. Unknown to Osagie, Brown was not a Pennsylvania
licensed contractor and was uninsured.
Brown was hired to complete several projects including installing new doors, windows,
cabinets, and flooring. Brown estimated the cost of labor and materials for these projects was
$11,500 and provided Osagie with an invoice for the work and materials. See Pls.’ Ex. D. Osagie
testified that he paid Brown $9,135. Brown conceded Osagie paid him this amount. Although
Osagie paid Brown, Osagie testified Brown completed no work.

Brown testified he completed at least three of the tasks on the invoice and had pictures to
prove his completed work. Nevertheless, Brown did not provide any photos showing the work was
completed. Brown also testified that after he completed certain work, there was a break in at
Osagie’s property and the work was destroyed. To the extent he purchased materials, Brown
testified all materials were stolen from the property.1 Again, there is no evidence this occurred.
Finally, although the invoice provided Brown would purchase new cabinets and install them,
Brown testified he never purchased cabinets. The cost for the cabinets was $4,600.
After the renovation was incomplete, Osagie hired someone else to complete the work.
Osagie spent $11,194.04 to complete the renovation. This cost included the exact same work and

materials Osagie hired Brown to complete and purchase.
Plaintiffs brought this action in September 2016. They allege Brown violated
Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) and Home
Improvement Consumer Protection Act (HICPA). See generally 73 Pa. Cons. Stat.
§§ 201-9.2, 517.10. After personally serving Brown twice, Brown failed to appear. Nonetheless,
after Plaintiffs discovered Brown was in bankruptcy, Plaintiffs recommended the case be resolved

1 Brown testified four windows, sheet rock, dry wall, mud, and insulation were stolen from
Osagie’s property the day after he purchased them.
in the bankruptcy case. The Court placed the case in suspense while Brown’s bankruptcy case was
pending.
On July 12, 2017, Plaintiffs filed a request to enter Brown’s default, which the Clerk of
Court entered. Plaintiffs then filed the instant motion for default judgment. Brown applied for
bankruptcy again in September 2017, and Plaintiffs offered to resolve the case in the bankruptcy

case. The Court placed the case in suspense while the second bankruptcy case was pending.
On September 30, 2019, Plaintiffs informed the Court that Brown’s bankruptcy case was
terminated. Because the issues in this case had not yet been resolved, Plaintiffs asked to proceed
with the motion for default judgment. The Court then scheduled the hearing and Plaintiffs served
Brown with their motion and the Court’s orders.
On January 7, 2020, the Court held a hearing on the motion for default judgment. At that
hearing, Brown appeared for the first time. He was also represented by counsel (whom he hired
only an hour before the hearing). Brown requested a continuance of the hearing, which the Court
denied. The Court nevertheless agreed to hold a second hearing on January 22, 2020, in which

Brown could provide his defense as to the amount of damages. At the first hearing, Giddings and
Osagie testified. They also presented evidence establishing the amount of money they each paid
Brown.
At the second hearing, Brown and one of his workers testified. According to their
testimony, they completed the required work. Although, some of their testimony established that
not all the work was completed. Brown also submitted photos of the properties, however, they
largely showed the properties before any work was completed. Brown did not provide any other
evidence that the work was completed.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 55, after the clerk has entered a defendant’s
default, a plaintiff must apply to the Court for entry of a default judgment. Courts must use “sound
judicial discretion” in determining whether to enter a default judgment. See E. Elec. Corp. of N.J.
v. Shoemaker Const. Co., 652 F. Supp. 2d 599, 604 (E.D. Pa. 2009). Before entering default

judgment, a court must consider “(1) prejudice to the plaintiff if default is denied, (2) whether the
defendant appears to have a litigable defense, and (3) whether defendant’s delay is due to culpable
conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).
The entry of default judgment is appropriate in this case. Plaintiffs will be prejudiced if the
default judgment is not granted because they will be left without recourse for unknowingly
entering into invalid construction contracts with an unlicensed contractor. Plaintiffs have
established Brown violated the UTPCPL and the HICPA in several ways. Pursuant to § 201-9.2 of
the UTPCPL, and § 517.10 of the HICPA, they can now seek recourse for those violations.
Second, Brown does not appear to have a litigable defense (other than offsetting damages).

At the hearing, he admitted he is not a licensed Pennsylvania contractor, which alone is a HICPA
violation. See 73 Pa. Cons. Stat. § 517.3. The evidence provided by both parties also establishes
several other HICPA violations due to missing elements in the contracts, the excessive deposits
Brown accepted for the proposed work, and Brown’s failure to carry insurance for his contracts.
See id. § 517.7(a)(1)–(11).
Finally, Brown’s default in this case is due to his own conduct. There are letters from years
past discussing Brown’s efforts to evade service of documents in this case. See, e.g., Pls.’ Letter,
Oct. 26, 2017, ECF No. 21. Also, at the hearing, Brown admitted to receiving notice of the
underlying action and the hearing over a week before the hearing. He nonetheless chose to retain
counsel only an hour before the hearing. These continued actions in delaying these proceedings
and Plaintiffs’ recourse are sufficient for the Court to enter default judgment in this case. See E.
Elec. Corp. of N.J., 652 F. Supp. 2d at 607 (entering default judgment when all three factors
weighed in favor of doing so and no alternative sanction would be appropriate). The Court will
therefore enter default judgment in Plaintiffs’ favor.

The Court will also award damages totaling $48,405. Once a default judgment has been
entered, “the factual allegations of the complaint, except those relating to the amount of damages,
will be taken as true.” Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). A party who
defaults does not admit the amount of damages the plaintiff seeks. See id. To determine the amount
of damages, a court may make its determination by conducting a hearing or by receiving detailed
affidavits from the plaintiff. See Fed. R. Civ. P. 55(b)(2)(B)–(C). In this case, the Court held a
hearing over two days at which both parties presented testimony and evidence. The Court will
consider all evidence in determining the appropriate amount of damages in this case.
Plaintiffs are entitled to actual damages or statutory damages of $100, whichever is greater,

for Brown’s liability under the UTPCPL and HICPA. See 73 Pa. Cons. Stat. § 201-9.2 (private
action for actual or statutory damages permitted for violations of UTPCPL); id. § 517.10 (any
violation of HICPA is a violation of UTPCPL). The Court may also award, in its discretion, treble
damages. See id. § 201-9.2. Finally, the Court may award costs and reasonable attorney fees. See
id.
In this case, Giddings and Isaac seek $17,000 in actual damages. Osagie seeks $9,135 in
actual damages. Plaintiffs also seek treble damages and attorney fees. Brown challenges the
damages because he contends he completed the relevant work for the money he was paid.
The Court will award Giddings and Isaac $7,000 in actual damages. Brown admitted he
accepted $17,000 from Giddings to complete certain renovation work. Neither Brown nor
Giddings, however, produced an invoice itemizing the work to be done and relative cost of each
task or materials amounting to $17,000.2 Making the determination of damages even more
difficult, Giddings testified Brown completed no work on his house, whereas Brown testified he

completed all $17,000 worth of work.
The Court concludes Brown did not complete $17,000 worth of work on Giddings’s home.
Brown’s testimony stated he removed contents from Giddings’s home, set up fans to dry the water
damage, repaired a hole in the floor, ran 52 feet of copper pipe, and replaced a radiator. Brown
testified he stopped working on the project after Giddings requested certain other work to be
completed such as wanting tile rather than carpet flooring. Further, Brown testified after he stopped
working, $3,000 remained of the $17,000 Giddings paid him. According to Brown, the $3,000 did
not cover Giddings’s new request for tile rather than carpet. Nevertheless, Brown did not provide
any evidence establishing the remaining $3,000 was returned to Giddings. As a result, Brown is

liable for the $3,000 Giddings paid and was never returned.
As for the remaining work, the Court is not convinced by Brown’s testimony that his work
of removing contents and drying water damage was worth $13,500 as described in the invoice to
Giddings’s insurer. Throughout his testimony, Brown never stated how much certain materials
cost, how much his and his workers’ labor cost, or what the total cost of the entire project was
intended to cost. His testimony in which he appeared certain that his work was worth exactly what
Giddings paid, is thus not supported by any calculation or extrinsic evidence. Even considering

2 Although Brown produced an invoice for $13,500 to cover the removal of furniture and carpets
and drying of the floors, this invoice was sent to the insurance company and did not bear
Giddings’s signature. See Defs.’ Ex. 2, at 3.
the invoice Brown sent to Giddings’s insurer, in which he estimated $13,500 for content and carpet
removal, fans, and dehumidifiers, the Court finds the work quoted to be overvalued. By Brown’s
own testimony, he stated he did much more than remove content, provide fans, and dehumidifiers
for $13,500. As a result, the invoice to the insurer does not provide a credible basis for estimating
the value of the work Brown provided.

Although Giddings testified that no work was completed, his testimony is undermined by
his allegations in the Complaint. Giddings alleged Brown began some work and then abandoned
the job. See Compl. ¶ 13–33. Specifically, Giddings alleged Brown demolished certain areas that
needed to be renovated. See id. ¶ 19. He also alleged Brown moved some of the contents in his
home to begin work. See id. ¶ 20. Finally, Giddings alleged Brown began some plumbing work
but never completed it. See id. ¶ 21. As a result, the Court finds Brown did some work on
Giddings’s home despite Giddings’s testimony to the contrary.
Considering the inconsistencies within both parties’ evidence, the Court finds Brown
completed approximately $10,000 worth of work. The Court accepts Brown’s testimony that he

completed the removal and drying of water damage. The Court also accepts Brown’s testimony
that he patched a hole in the floor because he provided a photo in which the hole was in fact
repaired. The Court discredits the rest of Brown’s testimony because it is not supported by photos
or other extrinsic evidence. The Court also finds Brown’s credibility questionable considering his
misrepresentation as a Pennsylvania licensed contractor and multiple violations under the
UTPCPL and HICPA.
As for Giddings, the Court accepts his testimony that Brown did not complete all the tasks
he paid for. This testimony is supported by text message records in which Giddings continuously
asked Brown to return and complete the tasks, but Brown failed to respond. See Pls.’ Ex. B.
Further, because Brown did not produce an itemized invoice in which Giddings signed, it appears
Giddings did not agree the work Brown completed was worth what he paid. Considering Giddings
received some work by way of removing of contents and carpet and drying water damage, the
Court finds that work worth nearly $10,000. Because Giddings paid Brown $14,000,3 Brown is
liable to Giddings for an additional $4,000.

In sum, Brown admitted he had $3,000 remaining after he ceased working on Giddings’s
house. This money must be returned. As for the remaining $14,000, the Court finds Brown
completed approximately $10,000 of work. Brown must now return the remaining $4,000 to
Giddings. The Court will thus award Giddings and Isaac a total of $7,000 in actual damages.
The Court will also award Osagie $9,135 in actual damages. By Brown’s own admission,
he accepted $9,135 from Osagie to complete the renovation job. Brown also admitted he was not
a licensed Pennsylvania contractor although Osagie testified that Brown represented himself as
one. In violation of HICPA, Brown admitted he did not carry liability or property damage
insurance on the renovation job. See 73 Pa. Cons. Stat. §§ 517.4, 517.7 (requiring home

improvement contracts to be completed by licensed Pennsylvania contractor and requiring liability
and property damage insurance). As a result of Brown’s failure to comply with HICPA, Osagie
suffered the loss of $9,135. Regardless of whether the Court accepts Brown’s testimony that he
completed some work and there was a break in and theft of the materials he purchased, had he
complied with HICPA, his insurance should have covered the loss of that work. Cf. Richards v.
Ameriprise Fin., Inc., 152 A.3d 1027, 1037–38 (Pa. 2016) (awarding plaintiff’s actual damages

3 This amount is the $17,000 Giddings paid Brown minus the $3,000 that went unused and
unreturned.
when loss was attributable to defendant’s misrepresentation and violation of UTPCPL). Therefore,
by accepting Brown’s own testimony, he is liable to Osagie in the amount of $9,135.
Next, the Court will award Plaintiffs treble damages. Under the UTPCPL, a court has
discretion to award up to three times the actual damages sustained. See 73 Pa. Cons. Stat. § 201-9.2.
The award of treble damages is not constrained by the common law requirements for punitive

damages. See Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007). Rather, treble damages are
warranted to further the remedial purposes of the UTPCPL when a defendant’s conduct is
intentional or reckless. See id. Courts have considerable discretion in awarding treble damages
under the UTPCPL. See Johnson v. Hyundai Motor Am., 698 A.2d 631, 639 (Pa. Super. Ct. 1997).
In this case, the Court finds Brown’s conduct regarding the home improvement projects
was reckless. First, Brown represented himself to Plaintiffs as a licensed contractor willing and
able to do their requested projects in Pennsylvania, although he was not. Second, Brown failed to
complete a valid contract or agreement for either of the projects as required under HICPA. Despite
taking nearly $27,000 from Plaintiffs, Brown showed little to no effort in assuring the funds were

allocated or invoiced properly. Third, Brown consistently ignored Giddings’s text messages
inquiring into the completion of the projects. See Pls.’ Ex. B. Even if Brown completed some of
his work, he failed to professionally communicate with his customers regarding their concerns.
Because Brown testified he is an experienced contractor with over 45 years’ experience, his
conduct regarding these two projects was reckless. Cf. E.S. Mgmt. v. Gao, 176 A.3d 859, 868 (Pa.
Super. Ct. 2017) (affirming award of treble damages where defendant acted recklessly by violating
landlord and tenant law and rushing potential lessees to pay an excessive security deposit which
was ultimately forfeited). As a result, the Court will award Plaintiffs’ treble damages. Giddings
and Isaac’s damages total $21,000 ($7,000 multiplied by three) and Osagie’s damages total
$27,405 ($9,135 multiplied by three).
Finally, the Court will exercise its discretion to award Plaintiffs attorney fees. Plaintiffs,
however, have not submitted an accounting for the Court to determine reasonable attorney fees.
See Richards, 152 A.3d at 1038–40 (discussing four factors to be considered in awarding attorney

fees under the UTPCPL, including time and labor, customary charges, amount in controversy, and
contingency or certainty of compensation). The Court will therefore grant Plaintiffs leave to file a
request for costs and reasonable attorney fees pursuant to 73 Pa. Cons. Stat § 201-9.2.
CONCLUSION
Entry of default judgment is appropriate in this case and Brown is liable to Plaintiffs. The
Court will award Giddings and Isaac $7,000 and Osagie $9,135 in actual damages. The Court will
also award Plaintiffs treble damages and reasonable attorney fees in amount to be determined.
Accordingly, the Court will enter default judgment against Brown for a total of $48,405—$21,000
for Giddings and Isaac and $27,405 for Osagie. The Court will grant Plaintiffs leave to file a

request for costs and fees pursuant to the UTPCPL.
An appropriate order follows.

BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, C.J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398704. Public record. Not legal advice.