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HomeMy WebLinkAbout03-0316QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff E. S. LAND ACQUISITION, LLC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA DOCKET NO. (.~ 6 { (.a CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMENT BY CONFESSION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to the authority contained in the warrant of Attorney, a copy of which is attached to the complaint filed in this action, I appear to the Defendant, E. S. Land Acquisition, LLC, and confess judgment in favor of the Plaintiff, Quality Builders Warranty Corporation and against Defendant, E. S. Land Acquisition, LLC, as follows: (Principal) Sum $11,497 Attorney' s Fees $10,000 Total: $21,497 Said judgment is authorized and taken in accordance with Pa. R.C.P. 2951 (b) and Pa. R. C. P. 2953. ~LL, ESQUIRE Attorney ID # 41532 ~ 325 North Second Street Wormleysburg, PA 17043 Attorney for Plaintiff Quality Builders Warranty Corporation QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff E. S. LAND ACQUISITION, LLC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA DOCKET NO. O3- 5 / (~ CIVIL ACTION - LAW COMPLAINT CONFESSION OF JUDGMENT AND NOW, this 21 day of January, 2003, comes the Plaintiff, Quality Builders Warranty Corporation, by and through its Attorney, John A. Gill, Esquire, and files the within Complaint pursuant to Pa. R.C.P. 2951 (h) - (c), Pa. R.C.P. 2952, Pa. R.C.P. 2953 and Pa. R.C.P. 2955, judgment by confession, and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation (Quality Builders), a Pennsylvania corporation with its principal place of business located at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant E. S. Land Acquisition, LLC is a New Jersey corporation with its principal place of business located at 52 Main Street, 2nd Floor, Flemington, New Jersey 08822. 3. Attached hereto and marked as Exhibit A, is a tree and correct copy of the instrument duly executed by Defendant that contains the warrant of Attorney to confess judgment. 4. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 5. The attached instrument has not been assigned. 6. Judgment has not been entered on the instrument in any jurisdiction. 7. Default was made by Defendant when they breached their Agreement with Quality Builders Warranty Corporation. More specifically, the Defendant has not adequately addressed homeowner complaints at 3 Jacobus Lane, Flemington, New Jersey. 8. Pursuant to Section B 6 (e) of the attached Builder Agreement and from Arbitration Awards dated Jtme 18, 2002 and December 18, 2002, the Defendant is obligated to perform repairs at 3 Jacobus Lane, Flemingtorg New Jersey 08822. 9. Quality Builders Warranty has attempted on numerous occasions to obtain adequate assurance fi'om the Defendant that it will perform its obligations under the Builder Agreement and the Arbitration Award. To date adequate assurance that the above referenced work will be completed by the Defendant has not been forthcoming. 10. As a consequence of the foregoing the Defendant is liable to Plaintiff, Quality Builders Warranty Corporation in a sum orS11,497 plus attorney's fees in the sum orS10,000. 11. The above is substantiated by Quality Builders Warranty Corporation's Affidavit, a copy of which is attached hereto as Exhibit B. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against E. S. Land Acquisition, LLC, in the sum of $21,497. ""--..~OI-I~ A. GILL, ESQUIRE A~'ogney ID # 41532 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 Attorney for Plaintiff, Quality Builders Warranty Corporation Date: EXHIBIT A AGREEMENT made this BUILDER AGREEMENT day of /'~(')-L~Cz~ ,19 q¢ between QUALITY BUILDERS WARRANTY CORPORATION, a Pennsylvania corporation, herein referred to as "QBW," and ~-~, L_o...r'/c(_ ~' C ~ C L ~' S ~' -~' O"Y"~.~ -- Name of Builden (ir~dicate whether a corporation, partnership, individual or other) · Address F ) '¢_ ~ ~ t"~ / State Zip .,.) ~ ~- O ~'Z__ herein referred to as "Builder." SECTION A. MEMBERSHIP AND TERM: 1. QBW administers a program whereby home builders registered with QBW enroll homes they construct in the program and pumhasers of those homes are protected by a warranty against certain specified defects. 2. In order to develop and maintain a good reputation for providing protection to purchasers of well-built homes, QBW protects and promotes its good-will by careful selection of builders to participate in its warranty program. 3. Builder desires to participate in QBW's warranty program and, to that end, agrees to abide by the provisions of this Agreement and to conform its behavior to the standards expressed herein and in the Limited Warranty Agreement. Builder warrants that all information supplied to QBW in connection with its application is true and correct. 4. All registration fees (initial and annual rescreening) are set by QBW at its discretion and are non-refundable. 5. QBW, upon executing this Agreement, has accepted Builder as a member of its warranty program, subject to the Builder's continuing performance of its obligation under this Agreement. 6. Builder's membership shall commence on the date of Execution by QBW and shall continue until terminated by either party in accordance with the terms of this agreement. QBW reserves the right to rescreen Builder annually. If QBW determines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's membership and the provisions of Section B, paragraph 6, shall be in effect. SECTION B. HOME ENROLLMENT: 1. Requirements. As part of its participation in QBW's warranty program, subject to QBW's acceptance, Builder agrees to enroll in the program every home, Builder, Builder's Principals, or any entity under Builder's, or Builder's Principals common control constructs in any state in which QBW operates and agrees to pay all fees required by QBW in the enrollment process, which fees shall be non-refundable. 2. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. Builder may enroll homes currently under construction and homes completed but not sold or occupied (as of the date of this Agreement or the date of reacceptance following a period of suspension or non-participation) provided that enrollment is made within 45 days of exe- cution of this Agreement or reacceptance, and QBW has inspected and approved the home. Homes which remain in a Builder's inventory longer than 18 months must be enrolled by the end of the 19th month from construction start date to qualify for enrollment. The warranty will be issued to the Builder and the unexpired portion of the warranty will automatically transfer to the purchaser. When enrolling other than a detached single family dwelling, Builder shall enroll each individual unit of any multiunit dwelling such as but not limited to duplexes, townhouses and condominiums. For each home enrolled, the Builder shall pay a warranty fee as determined by QBW within the time periods estab- lished by QBW. All warranty fees are non-refundable. A minimum warranty fee of $100.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment form. Builder and purchaser must complete and sign the Enrollment Form at closing, and Builder agrees to furnish QBW with a copy of the signed Enrollment form within ten (10) days of closing· Builder agrees not to charge the purchaser directly for the cost of the enroll- ment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and completed Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to reject any home submitted for enrollment in the program if (a) the Builder is not a member in good standing; (b) the home is not constructed in accordance with the Warranty Standards or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enrollment procedures; (d) misstates or misrepresents any information; (e) in any way fails to comply with the terms of this Agreement. 4. Assignment of Rights. If a purchaser files a Complaint pursuant to the Limited Warranty Agreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case may be, any rights which Builder may have against a supplier, manufacturer, subcontractor or other person for work performed or materials supplied in connection with that claim. Builder agrees to cooperate fully with QBW and to provide QBW with all information which it requests pertaining to the claim. If Builder fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation. 5. Breach and Remedy. If Builder fails to enroll any eligible home as required by this Agreement, QBW may seek specific enforcement or other appropriate relief in legal or equitable proceedings, even if this Agreement has been terminated. Furtherm0~e, Builder agrees to inde: 'y and hold harmless QBW and its insurel any losses or any damages they may suffer as a result of Builder's breach of this Agreement and such losses and costs shall include reasonable attorney's fees and expert witness fees. Builder hereby irrevocably authorizes and empowers any attorney or any court of record of Pennsylvania or elsewhere to appear for and confess judgment against Builder for all amounts for which Builder may become liable to QBW for the breach of this Agreement, as evidenced by an affidavit signed by an officer of QBW setting forth the amounts then due, plus attorney's fees incurred by QBW, with costs of suit and release of errors. Such authority shall not be exhausted by any one exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default. Remedies stated herein are elective and not exclusive and QBW may elect to proceed under this or any other para- graph in this Agreement. 6. Suspension or Termination. QBW may terminate, or at its option suspend, Builder's participation in QBW's Warranty Program, or any entity or individual which Builder is affiliated, if QBW determines that Builder has done any of the follow- ing, which shall be deemed a breach of this Agreement. (a) fails to comply fully with all provisions of this Agreement; (b) fails to perform any of its obligations under this Agreement, including, but not limited to, cooperating in the operation of the program's informal dispute resolution and arbitration procedure; (c) fails to respond to QBW's notice of a homeowner's complaint; (d) fails to comply with a decision which is rendered pursuant to complaint procedures; (e) fails to provide adequate assurance to QBW within ten (10) days after it receives a written request from QBW for such assurance that (within a reasonable timetable established or approved by QBW) it is willing and able to cooperate in dispute settlement and to perform the obligations under any decision which is rendered pursuant to such procedures; (f) fails to otherwise cooperate in the operation of the QBW Program in accbrdance with the rules and regulations of the QBW Program; (g) fails to provide timely proof of compliance with this Agreement, as and when requested by QBW; (h) fails to comply with QBW Warranty Standards and building codes as stated in the Limited Warranty Agreement; (i) fails to comply with the enrollment procedures established by QBW; (j) fails to provide proof that enrolled homes have been subjected to required inspections; (k) fails to respond to purchaser complaints in a timely manner and as provided in the Limited Warranty Agreement; (I) fails to perform its obligations with professional competence or conduct its operations from a position of financial strength and stability; (m) fails to notify QBW within 30 days of a change in ownership, company name or company standing, financial condition, or of any other material fact which might affect Builder's ability to meet its obligations under this Agreement; (n) fails to meet ethical standards in its dealings with customers; or (o) misstates or misrepresents any information in connection with its application or in the rescreening process. QBW reserves the option to reinstate terminated affiliates of the primary, terminated Builder if QBW determines that the terminated Builder or its principals are not in a position to control the affiliated Builder. Termination of Builder by QBW shall not affect the rights or obligations of any of the parties to this Agreement with respect to the Warranty Program in effect at the date of termination, subject to the provisions pertaining to voidability. If a Builder is suspended or terminated, he shall not represent himself to be a member of the QBW Warranty Program nor offer the QBW Warranty and shall not use its Logo or refer to the program in any way nor attempt to enroll any home. The Builder shall immediately notify any Buyer currently under contract to purchase a home of the suspension or termina- tion and that the QBW Warranty Program has been withdrawn. Upon request, Builder shall immediately return to QBW all materials supplied by QBW and all material making reference to QBW. Should Builder fail to take these steps, it shall indem- nify and hold harmless QBW and the insurer against any and all expenses incurred and losses suffered, including but not limited to attorney fees, by either of them as a result. In addition, Builder shall pay interest to QBW at the rate of 18% per annum on all sums due to QBW hereunder if such sums are not paid within 30 days of demand by QBW. Builder may terminate this Agreement upon 30 days advance written notice to QBW. If so terminated by Builder or by QBW, Builder's obligations under this Agreement shall continue as to those homes enrolled during the period in which this Agreement was in effect. 7. Notice. If QBW possesses a reasonable belief that reason exists to terminate or suspend a Builder for violation of this Agreement, QBW may immediately terminate or suspend the Builder by providing it with written notice. If QBW elects to sus- pend the Builder, such suspension will remain in effect until Builder has cured ali defects to QBW's satisfaction, however, QBW reserves the right to terminate any suspended Builder. 8. Voidability. QBW reserves the right to void any enrollment if Builder misstates or misrepresents any information in its appli- cation or in the rescreening process or misstates or misrepresents any information in the enrollment of a particular home or fails to pay any fees due for enrollment of any particular home or fails to forward an enrollment form for a particular home within 10 days as required, or fails to enroll all units of a multi unit building. SECTION C. BUILDER'S OBLIGATIONS: 1. Construction Obligations. Following are the Builder's obligations with respect to QBW's Warranty Program: (a) Builder shall construct all homes in conformity with the Warranty Standards provided in the Limited Warranty Agreement, and/or in conformity with approved building codes and other standards established by QBW and in effect at the begin- ning ~oi construction of the enr( I home. QBW reserves the right to estai' , special requirements for escrow pay- ments or other means of protecz~on with respect to any homes constructeo ,,y Builder which QBW determines to be "High Risks." (b) Builder agrees to have all homes inspected, as required by QBW, and to pay all fees for the inspection and to provide evidence of inspection as and when required by QBW. QBW shall provide inspectors or shall approve governmental inspectors. (c) QBW shall have the right to perform spot inspections to verity Builder's compliance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnity and hold harmless QBW and/or its Insurer for any losses or damages QBW and/or its Insurer may suffer as a result of the use of fire retardant treated plywood on any building enrolled under the QBW Ten Year Warranty Program. This will include all claims and liability for losses, damages and expenses which QBW and/or its Insurer may sustain, incur, pay or be liable for by means of any investigation settlement or litigation of any claim or action which may be raised, made or brought due to the potential defects caused or likely to be caused by use of the subject plywood. (e) If the Builder is informed by QBW that it is building in an area designated as one with active soil conditions, the Builder agrees to obtain such soils investigations and reports as may be required by QBW. If such reports indicate a need for special foundation design the Builder agrees to construct the foundation according to the design of a registered profes- sional engineer to take into account the conditions disclosed by the soil tests. 2. Warranty Obligations. Builder agrees to perform all obligations arising from this Agreement and the Limited Warranty Agreement. The Builder shall at its own expense perform all obligations as set forth in the QBW Warranty Program and this Agreement which includes meeting the warranty standards upon notice from the Purchaser without the necessity of QBW intervention. During years one and two, if Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement, QBW will perform those obligations; however, Builder agrees to reimburse QBW and/or its insurer for all expens- es incurred in performing those obligations, including, but not limited to costs of materials, cost of collection, labor, archi- tect's fees, engineering fees, and attorney's fees. QBW reserves all rights of subrogation. If the Builder repairs a major structural defect during year one or two, QBW must be notified. Once notified, QBW will perform a compliance inspection. During years three through ten, QBW agrees to perform its obligations pursuant to the Limited Warranty Agreement provided that the defect that is the subject of the Purchaser's claim did not occur within the first two years or was not con- cealed or cosmetically or improperly repaired by the Builder. Builder is not responsible for any damage caused by a major structural defect, as defined in the Limited Warranty Agreement, occurring after the expiration of the first two years of the Limited Warranty Agreement provided the defect was not concealed or cosmetically or improperly repaired. 3. Builder is authorized to advertise its membership in the QBW Warranty Program and to use its Logo in its business, pro- vided that any reference to QBW or its insurer, whether contractual or advertising copy, be approved by QBW in writing in advance of its use. SECTION D. INFORMAL DISPUTE PROCEDURE: 1. Builder should be aware that the Limited Warranty Agreement provides for an informal dispute settlement and arbitration procedure to resolve complaints by pumhasers under the Limited Warranty Agreement. Builder should become familiar with the settlement procedures in order to be aware of its rights and responsibilities. Builder agrees to cooperate fully in the pro- cedure and to be bound by and to comply with any decision of an independent third party, or arbitrator. If the Builder fails to perform its obligations hereunder in a timely and workmanlike manner, such failure shall be con- sidered to be a refusal to perform governed by paragraph C.2 hereof. 2. The Builder agrees to pay all fees charged in connection with the informal dispute settlement and arbitration procedures. SECTION E. TERMS GOVERNING OPERATION AND INTERPRETATION: 1. Builder agrees to perform its obligations under this Agreement in a timely manner. However, time provided for performance of obligations hereunder shall be extended by events not subject to control by the person obligated to perform. Such events include acts of God or the public enemy, or, riot, civil commotion or governmental conduct. 2. Descriptive headings as to the contents of particular provisions of this Agreement are intended for convenience only and are not to be considered in construing this instrument. 3. This Agreement shall not constitute or be considered an agency, employer-employee relationship, joint venture or partner- ship between the parties. None of the parties, nor any of their employees or agents, shall have the authority to bind or oblig- ate the other party except as provided by this Agreement. 4. Should any provisions of this Agreement be determined by a court of competent jurisdiction to be unenforceable, that deter- mination will not affect the validity of the remaining provisions. 5. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts. By Date of execution by QBW: 6. Builder Sl~all not assign this Agree' ,t without the prior written consent of QBe, 7. This Agreement shall inure to the bu~efit of and be binding upon the heirs, executors, administrators, assignee, and suc- cessors of the representative parties. 8. This instrument, and security documents and documents referred to or incorporated herein by reference, contain the entire agreement between the parties, and no statement, promises, or inducements made by either party or agent of either party that is not contained in this wdtten contract shall be valid or binding; and this contract may not be enlarged, modified, or altered except in writing signed by the parties and endorsed hereon. 9. Failure of either party to insist upon compliance with any provision of this Agreement shall not constitute a waiver of that provision. 10. All notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt requested, to the recipient at the respective address shown below, or to whatever address the party may designate in writing. 11. The effective date of this Agreement shall be the date of execution by QBW. ~LDERS ~/VARRANTY CORPORATION December 1, 1998 70443 Builder's Registration No.: ' t~Sign.ure df ,¢,,n,. Representative. ,tie)j ~<~¢ (Pl~se pdnt nam~fltle of executod 63 Main Street, Flemington, NJ 08822 (Address) Copyright 1988 Qsw FORM 0S0 ~0/~e Quality Builders Warranty Corporation EXHIBIT B QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff Vo E. S. LAND ACQUISITION, LLC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA DOCKET NO. CIVIL ACTION - LAW AFFIDAVIT OF JOSEPH M. OLSHEFSKI My name is Joseph M. Olshefski, an adult individual who is President of Plaintiff Quality Builders Warranty Corporation and who is providing this Affidavit in accordance with Section B, Paragraph 5 of E. S. Land Acquisition, LLC's Builder Agreement pertaining to substantiation of amounts due by Affidavit in connection with Confession of Judgment. The Builder Agreement is attached to this Complaint and marked as Exhibit A. E.S. Land Acquisition, LLC has breached its Builder Agreement with Quality Builders Warranty by failing to properly address homeowner complaints as required under the Builder Agreement. An Arbitration Award was rendered on June 18, 2002 between the Defendant and the Property Owner at 3 Jacobus Lane, Flemington, New Jersey 08822. The Arbitration Award clearly set forth the Defendant's repair responsibility at the aforementioned property. The Builder submitted a Method of Repair that the Homeowner disputed and a Method of Repair Arbitration Award was rendered on December 18, 2002. Quality Builders has attempted on numerous occasions through telephone calls and letters to the Defendant to obtain adequate assurance fiom E. S. Land Acquisition, LLC that it will perform its obligations under the Builder Agreement and the Arbitration Award. Despite these repeated requests Defendant, E. S. Land Acquisition, LLC has not provided adequate assurance that it will assume its responsibilities. Pursuant to Section B 6 (e) of the attached Builder Agreement (See Exhibit A) Quality Builders Warranty Corporation is empowered to seek damages fiom the Defendant for failing to perform its obligations and failing to provide adequate assurances that is will do so. As such, Quality Builders Warranty is authorized to confess judgment against Defendant in the amount of $11,497 with Attorney' s Fees in the amount of $ I 0,000. I declare that the foregoing facts are within my personal knowledge and are tree and correct to the best of my knowledge, information and belief. False statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. J(~ ~'tOy LBStu~] ~eFrSs KI' PwarrreSani~e;rporation Date: January 21, 2003 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. E.S. LAND ACQUISITION, LLC Defend0nt IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05- 5t6 CIVIL ACTION -~ LA o~ To E_.S. LAND ACQUISITION, LLC, Defendant You are hereby notified that on January 21, 2003 judgment by confession was sum of $ 21,497An the above captioned case. entered against you in the ~~ ~/~e~ ~ DATE: { - o~ { ~ 03 -/ Prothonotary 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 (717) 249-3166 I hereby certify that the following is the address of the defendant (s) stated in the certificate of residence. E.S. LAND ACQUISITION, LLC 52 MAIN STREET, 2st> FLOOR FLEMINGTON, NJ 08822. DCBA-300 Rule 11.5 (a)-4/3/81-M-4/24/81-M