United States Bankruptcy Appellate Panel of the First Circuit
[Copyrighted Material Omitted]
from the United States Bankruptcy Court for the District of
Massachusetts. (Hon. Melvin S. Hoffman, U.S. Bankruptcy
Judge). Bankruptcy Case No. 10-45391-CJP. Adversary
Proceeding No. 11-04010-CJP.
J. Porcaro, Pro se, on brief for Defendant-Appellant.
J. Heineman, Esq., and Scott R. Pearl, Esq., on brief for
Deasy, Harwood, and Cary, United States Bankruptcy Appellate
U.S. Bankruptcy Appellate Panel Judge.
J. Porcaro (" Porcaro" ), a home improvement
contractor, appeals from a bankruptcy court order granting
judgment in favor of judgment creditors, Michael O'Rorke
and Beth O'Rorke (collectively, the "
O'Rorkes" ), and a bankruptcy court order denying
his motion for summary judgment (collectively, the "
Orders" ). On appeal, Porcaro contends that entering
summary judgment in the § 523(a)(6) proceeding was error
because the bankruptcy court incorrectly afforded preclusive
effect to the O'Rorkes' pre-bankruptcy, state court
judgment. For the reasons discussed below, we
AFFIRM the Orders.
August 2004, the O'Rorkes hired Porcaro to install eleven
replacement windows in their Westborough, Massachusetts home.
The contract they entered into required Porcaro to install
screens, locks, and custom-made " Majesty" windows,
and to dispose of the old windows. The O'Rorkes were to
pay him $19,100.00 in the following installments: an initial
deposit of $6,366.00; an additional installment of $10,000.00
upon delivery of the windows; and a final payment of the
remaining $2,734.00 balance upon completion.
retained Paul Meredith (" Meredith" ), an
installation subcontractor, to do the work at the
O'Rorkes' home. Although the job required a permit,
Porcaro did not obtain one. When Meredith arrived to perform
the work, he noticed that the new windows were approximately
3/4 of an inch too small for the window openings. When he
asked Porcaro about this, Porcaro instructed him to proceed
with the window installation. Meredith did as he was told.
the installation was complete, the O'Rorkes paid Porcaro
all but $200.00 of the contract price, which they withheld
due to minor screen damage. When Porcaro refused to pay
Meredith for the work, Meredith informed the O'Rorkes
about the problem with the windows.
the parties submitted to arbitration through the Commonwealth
of Massachusetts Contractor Home Improvement Arbitration
Program. Additionally, the O'Rorkes made a demand upon
Porcaro pursuant to Mass. Gen. Laws ch. 93A (" Ch.
93A" ). After a hearing conducted on June 7, 2005, the
arbitrator found that Porcaro had installed windows that were
too small and awarded the O'Rorkes $11,300.00 in damages,
which sum included $9,000.00 to cover the estimated cost of
new replacement windows and $2,300.00 for "
State Court Proceedings
appealed the arbitrator's decision by filing a complaint
with the Commonwealth of Massachusetts Trial Court, District
Court Department, Westborough Division, alleging breach of
contract, malicious prosecution, conspiracy to breach a
contract, and breach of the covenant of good faith and fair
dealing. The O'Rorkes counterclaimed for breach of
contract and violations of Ch. 93A. In February 2007, the
case was transferred to the Marlborough Division.
March 2007, the trial judge conducted a two-day bench trial.
This appeal was not limited to a narrow review of the
arbitration award but, rather, was by statute a de novo
proceeding, designed to resemble an original trial court
action more than an ordinary appeal. See Mass. Gen. Laws ch.
142A, § 4(e). Both parties presented evidence, including
appeared pro se, and, in addition to calling witnesses,
testified on his own behalf. The trial yielded approximately
800 pages of documents and testimony. Meredith testified, on
behalf of the O'Rorkes, that during the installation, he
discovered every window that was going to be installed was
too small for the window openings. In fact, one of the
windows almost fell through the opening. He knew this meant
he would be unable to properly install the windows. He
testified he informed Porcaro that the windows were not the
correct size, that they should not be installed, and that he
wanted to re-install the old windows until they could order
the right size. He further testified that instead of ordering
the correct windows, Porcaro directed him, without the
O'Rorkes' knowledge, to install the incorrect windows
by filling the gaps with wood, a technique called "
blocking." When Meredith told Porcaro that he did not
have any wood to fill in the gaps, Porcaro responded, "
I'll bring you some." According to Meredith, Porcaro
threatened to withhold payment if he mentioned anything about
it to the O'Rorkes. Meredith also testified Porcaro took
affirmative steps to conceal the improper installation from
the O'Rorkes by installing wider casings than had
originally been used around the windows.
Jeffrey Stevenson (" Stevenson" ), a contractor who
had previously worked for Michael O'Rorke's company,
provided expert witness testimony for the O'Rorkes,
stating he had examined the windows and determined they were
too small and installed incorrectly. According to Stevenson,
when he took the casings off one of the windows, placed his
hand in the center of the window, and pushed with little
effort, " the window moved about an inch." He also
testified that a newly constructed window would need to be
installed because the original window frame had been cut,
removed, or otherwise altered. The blocking which was
installed at Porcaro's direction would have to be
removed, as well as what was left of the original window
frames, and the siding would need further repair. Stevenson
went on to testify, without objection by Porcaro, that the
cost to put the O'Rorkes in as good a position as they
would have been had Porcaro installed the windows properly
would be $20,000.00. He stated: " I'm going to just
shoot from the hip, I would say probably about twenty grand,
probably a shade more."
rebuttal, Porcaro's expert, Peter F. DePesa ("
DePesa" ), a contractor and former building inspector
for the town of Andover, Massachusetts, testified that the
windows were installed correctly, and that when he inspected
the subject windows he " saw no old filler wood."
He further testified that the " job look[ed] good . . .
." In response to an inquiry from the bench, he
explained that if the windows were too small, it "
[a]bsolutely would be visible." DePesa also opined that
in the O'Rorkes' house, the rough openings were off
" and that's why they put the filler in." With
respect to the permit issue, DePesa explained that it was
discretionary with local building inspectors whether to
require a building permit for window replacement.
written opinion issued on March 26, 2007, and revised on
April 12, 2007 (the " State Court Decision" ), the
trial judge decided in favor of the O'Rorkes, awarding
them $20,000.00 in damages as the replacement cost for the
eleven windows, which he trebled, in accordance with Ch. 93A,
to $60,000.00, plus interest, attorneys' fees, and costs.
The trial judge prefaced his findings with the observation
that the " [i]nstallation of windows that are too small
creates a danger of water and other damage." He went on
With regard to [Porcaro's] Complaint, I find that the
evidence I heard supports many of the arbitrator's
findings. I find that [Porcaro] wil[l]fully failed to obtain
a necessary building permit and wil[l]fully had windows
installed in [the O'Rorkes'] home which he knew to be
too small for the openings. I do not find that [the
O'Rorkes] breached their contract with [Porcaro] and I do
not find that there was any conspiracy between [the
O'Rorkes] and Meredith to breach the contract. [The
O'Rorkes] had every reason to send [Porcaro] a [Ch. 93A]
demand letter; [Porcaro's] Counts for malicious
prosecution and breach of the covenant of good faith and fair
dealing are frivolous.
Judgment shall enter for [the O'Rorkes] on all Counts of
With regard to the counterclaims, I find that [Porcaro]
breached the contract by having windows installed which did
not properly fit. In addition, I find that [Porcaro] violated
[Ch.] 93A in two respects. First, the failure to obtain a
building permit is a violation of G.L. c. 142A, s.2 and is a
per se violation of [Ch. 93A]. Second, the knowing and
wil[l]ful violation of the contract by installing windows of
an improper size is as egregious a violation of consumer
protection laws as there can be. The evidence I heard
supports a larger damage award than given by the arbitrator.
Judgment shall enter for [the O'Rorkes] on their
Counterclaim for $20,000 which shall be trebled to $60,000
plus applicable interest and costs.
After hearing, I award attorneys' fees and costs in the
amount of $20,269.93 as requested in the attorneys' fee
application and its supplement.
April 12, 2007, the Marlborough district court entered
judgment against Porcaro in the amount of $84,320.34. Porcaro
moved for a new trial and the motion was denied. Thereafter,
Porcaro appealed to the Commonwealth of Massachusetts
Appellate Division of the District Court Department Northern
District (the " Appellate Division" ). On September
25, 2008, a three-judge panel of the Appellate Division
issued an eleven-page opinion, and a Decision and Order
affirming the judgment of the state court and dismissing
Porcaro's appeal. Porcaro v. O'Rourke, 2008
Mass.App.Div. 218 (2008).
November 17, 2008, Porcaro filed his third appeal, which
resulted in the affirmance of the Decision and Order of the
Appellate Division in December 2009.
Appeals Court ruled:
Our review of the parties' written submissions and the
record on appeal persuades us that [Porcaro's] claims are
without merit. Moreover, these claims were satisfactorily
addressed in the thoughtful and comprehensive decision of the
Appellate Division of the District Court department. No error
or other abuse of discretion having been made to appear, we
discern no basis on which to disturb the judgment on appeal.
Porcaro v. O'Rorke, 75 Mass.App.Ct. 1116, 918
N.E.2d 97, at *1 (2009).
December 29, 2009, Porcaro filed an Application for Further
Appellate Review to the Supreme Judicial Court, which it
denied on January 27, 2010. Porcaro v.
O'Rourke, 455 Mass. 1109, 920 N.E.2d 878 (2010).
Bankruptcy Court Proceedings
October 2010, Porcaro filed a voluntary petition for chapter
7 relief in the United States Bankruptcy Court for the
District of Massachusetts. On his Schedule D-Creditors
Holding Secured Claims, Porcaro listed the O'Rorkes as
the holders of a $100,000.00 disputed judicial lien on real
estate located at 320 Putnam Hill Road, Sutton,
January 2011, the O'Rorkes commenced the adversary
proceeding which is the subject of this appeal with a
single-count complaint, wherein they objected to the
discharge of Porcaro's judgment debt pursuant to ...