Loading...
HomeMy WebLinkAbout03-0679QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. BAYMAN & RUSK BUILDERS, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA . : : : CIVIL ACTION - EQUITY : DOCKET NO. ~)3 ~ 6 ')~ .' NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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 WHER YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. BAYMAN & RUSK BUILDERS, 1NC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY DOCKET NO. 6,'7 COMPLAINT AND NOW, this 12th day of February, 2003 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation, a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleyburg, Cumberland County, Pennsylvania, 17043. 2. Defendant, Bayman & Rusk Builders, Inc. (Builder) is a Indiana corporation engaged in the new home building business with its principal place of business situate 51245 Lilac Road, South Bend, St. Joseph County, Indiana 46628. 3. On January 10, 2000, Builder executed a Builder Agreement in which Builder agreed to become a member in the QBW Ten Year Limited Warranty Program. A copy of said Agreement is attached hereto incorporated herein and marked as "Exhibit 1". 4. In connection with its membership Builder executed an Amendment to the Builder Agreement dated June 17, 2002 in which Builder agreed to maintain its membership in the QBW Ten Year Limited Warranty Program for three years to commence on June 17, 2002. A copy of said document is attached hereto incorporated herein and marked as "Exhibit 2". 5. On February 10, 2003 Builder indicated that they intend to breach their Agreement by applying for and maintaining their membership with another warranty program. 6. Section B 1 of the Builder Agreement executed by Builder states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entry under Builders or Builder's Principals common control constructs." (See Exhibit 1). 7. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit I). 8. Builder's notification that they wish to temdnate their membership in the QBW Program is a violation of the Builder Agreement as amended and QBW seeks to specifically enforce the obligation of the Builder Agreement, as amended to compel Builder to enroll all homes they construct in accordance with QBW's membership requirements for the period June 17, 2002 to June 17, 2005. 9. In the alternative, QBW seeks damages t~om Builder for homes, which the Builder would be required to place warranties on during that period of time, which damages exceed the sum of $35,000. 10. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 11. Jurisdiction is proper in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "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." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against Bayman & Rusk Builders, Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Bayman & Rusk Builders, Inc. be specifically enforced to require Bayman & Rusk Builders, Inc. to enroll all homes they construct for the period June 17, 2002 through June 17, 2005 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant Bayman & Rusk Builders, Inc. be ordered to pay damages equal to warranty fees which QBW was entitled to based upon homes projected for the period June 17, 2002 to June 17, 2005, said amounts to be in excess of $35,000.00. 3. Attorney's fees as authorized by Section B 5 of the Builder Agreemem. 4. Such other relief as deemed appropriate by the court. Respectfully Submitted, <~.,John A. Gill, Esquire Quali[3 Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation EXHIBIT 1 -TRN-05-2088 i3: ~" / ~ ' ,. - ! TY BU ! LDERS UARRANT'F I~UILDER A~REEMENT 717 737 4288 JAN fl AGREEMENT made this ~ 'J"'~'/' day of \.)1"4.~ between QUALI-FY BUILDERS WARRANTY CORPORATION, a Pennsylvania corporation, herein referred to as "QBW," and AL BAYMAN CUSTOM HCME~, INC. AND/OR BA~.N AND RU$_~_ BU!LDk-~S, INC. NB. rn~ of ~]uJlder: (indicate who her a , of A~dres~ 5i245 Lilac Road, South Bend, IN 46628 __ herein referred to as "Builder." SECTION A. MEMBERSHIP AND TERM: 1. QBW administers a program whereDy home builders registered with QBW enrotl homes they construct in the program and purchasers of those homes are protected by a warranty against certain specified defects. 2. In order to devetop and maintain a good reputation for providing protection to purchasers of well-built homes, QBW protects and promotes its good-will by careful select/on ot builders to participate in its warranty program. 3. Builder desires to participate in OBW's warranty program and, to that end, agrees to abic~e by the provisions ot this Agreement and to conform its behavior to the standards expressed herein and in the Limited Warranty Agreement. Builder warrants that ail information supplied to QBW in connection with its application is true and correct. 4. All registration fees (initial and annual rescre~ning) 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 Bu~ der 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 enrotl 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 dale 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 em'oiled 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 individua~ 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 pumhaser 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 Standarc~s or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enrollment procedures: (el) misstates or misrepresents any information; (e) in any we, y 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 agaJns! a supl~lier, 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 Jack of cooperation. 5. Breach and Remedy. If BuiIder fails to enroll any eligible home as required by this Agreement. QBW may seek specific enforcement or other al=propriate relief in legal or eduitable ~roceed/nds, even if this A~reement has been terminated. JAN-05--~000 13:Z2 QI~ .... I'Y BUILDERS WAR~AIqTY ?17 5'37 4288 P.03×03 ~. I~uilder shall not assign this Agr~'m~nt without the pnor written consent or ?. This Agreement shall inure to the benefit ~ and Oe binding upon the heirs, executors, ~dmin{stretors, assignee, and ~uc- cessors of the representative padies. 8. This instrument, and security documents and documents referred to or incorporated herein by reference, contain the entire acJreement between the parties, and no statement, promises, or inducements made by either party or agent of either party that is not contained in this written 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 shell, not constitute a waiver of that provision. 10. All notices required hereunder must be in writing anti sent by certified mail, postage prepaid, return receipt requested, to the recipient at the respective address shown below, or to whatever aQdress the party may designate in writing. 11 The effective date of this Agreement shall be the date of execution by QBW. QUALITY BUILDERS WARRANTY CORPORATION Date of execution by QBW: Builder's Registration No.: 01-10-2000 .31022 A~ AAYMAN CUSTO~ HCt4F~, INC. DATE By 51245 (Name of Builder - pleaae print or type) (Signature ot Authorized Representative. Title) {Pie"asa print nsme/lltle of executor) Lilac ROad, South Bend, IN 46628 (Addre~a) Copyright 1988 Quality ~ullder~ Warranty Corporation EXHIBIT 2 AMENDMENT TO BUILDER AGREEMENT This Amendment, is between Quality Builders Win'rarity Corporation (QBW) and BAY'MAN AND RUSK BUILDERS, INC. referred to as "Builder". Builder is a member in the QBW 10 Year Limited Warranty Program. QBW and Builder desire to modify the term of the Builder Agreement. QBW and Builder, in exchange ~for the mutual covenants contained herein and intending to be legally bound hereby agree as follows: 1. Builder shall maintain its membership in QBW~s Limited Warranty Program for an additional period of three (3) years to commence upon tile below date and submit for e~ollment homes which Builder or any affiliate constructs during that time. Builder may not terminate his participation in the QBW Program within that period mfless consented to by QBW in writing. 2. Builder shall pay an annual membership fee. 3. Builder's rate will be lowered to $ 2.60 per thousand. The rate will remain in effect tbr the period of this Amendment. The Amendment will renew for a like term unless thirty (30) days prior to the expiration of this term or any extensions either party provides the other thirty (30) days advance written notice that they intend not to extend the period eatitting the Builder to a lower rate. If Builder provides notice, QBW will adjust die Builder's rate upward effective at file end of the then current term. 4. If in the unforeseen event ora rate increase, caused by Legislation, or situations beyond the control of QBW, Builder has the right to te~,,inate participation. 5. If the terms contained in this Amendment are inconsistent with the Builder Agreement, the terms of this Amendment shall govern. IN WITNESS WI-tEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized o~cers, as of ~his !0th day of June 2002. BY: VERIFICATION I, Eric W. Dethlefs, state that I am the Vice Presidem of Operations for Quality Builders Warranty Corporation and verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat., Section 4904, relating to unswom falsification to authorities. QUALITY BUILDERS WARRANTY CORPORATION Eric W. Dethlefs - Vice Presidem of Operations SHERIFF'S RETURN CASE NO: 2003-00679 P COMMONWEALTH OF PENNSYLVA/~IA COUNTY OF CUMBERLAND QUALITY BUILDERS WARRANTY CORP VS. BAYMAN & RUSK BUILDERS INC U.S. CERTIFIED MAIL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,BAYMAN & RUSK BUILDERS INC by United States Certified Mail postage prepaid, on the 14th day of February ,2003 at 0000:00 HOURS, at 51245 LILAC ROAD SOUTH BEND, IN 46628 and attested copy of the attached COMPLAINT - EQUITY with , a true Together receipt card was signed by SIGNATURE ILLEGIBLE 02/25/2003 The returned on Additional Comments: Sheriff,s Costs: Docketing 18.00 Cert Mail 4.65 Affidavit .00 Surcharge 10.00 .00 32.65 Sheriff of Cumberland County Paid by QUALITY BUILDERS WARRANTY CORP on 02/28/2003 Sworn and subscribed to before me this f ~ day of ~4~ ~Foth0hot ary ~ ' MICHAEL W. SHEIBLEY, Plaintiff HEIDI SHEIBLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-659 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE ~STIPULATION THIS STIPULATION, by and between Michael A. Scherer, Esquire, counsel for Michael W. Sheibley, and Joseph C. Michetti, Jr., Esquire, counsel for Heidi Sheibley, is entered this_ /~7/''' day of March, 2003. WHEREAS, on February 13, 2003, Michael W. Sheibley filed an action in divorce in the Court of Common Pleas of Cumberland County, Permsylvania, seeking a divorce t to Section 3301(c) and 3301(d) of the Divorce Code; and, WHEREAS, on February 14, 2003, Heidi Sheibley, the defendant in the above- captioned action, filed a Divorce Complaint in the Court of Common Pleas of Northumberland County, Pennsylvania seeking a divorce based upon irretrievable breakdown of the marriage, which action included claims for' equitable distribution of martial property, alimony and counsel fees, expenses and costs; and, WHEREAS, the parties were married in Cumberland County, Pennsylvania on September 27, 1997; and, WHEREAS, the parties' marital residence had been at 614 Apple Drive, Mechanicsburg, Cumberland County, Pennsylvania from 1997 until 2002; and, WHEREAS, the parties never lived in Northumberland County together and own no property jointly in Northumberland County. NOW, THEREFORE, the parties intending to be legally bound hereby, enter into the following Stipulation in order to resolve the issue of venue in this case. 1. The action filed in Northumberland County docketed to CV-03-224 shall be stayed, pending further Order of Court. The above-captioned action shall remain active and shall proceed at the election of the parties. ~ich-ael A. Sch~rer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Michael W. Sheibley /~ ~ ~P3h00C~l~lic hett i, Jr. 921 Market Street Trevorton, PA 17881 (570) 797-8651 Attorney for Heidi Sheibley mas.dirldomesticlsheibleylstipulationstaynorth.wpd